HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 242
56th legislature - STATE OF NEW MEXICO - second session, 2024
AN ACT
RELATING TO DOMESTIC AFFAIRS; CLARIFYING THE PROCESS OF SOLEMNIZATION, LICENSURE AND CONTRACTS FOR MARRIAGE; PROVIDING DEFINITIONS; ALLOWING APPEARANCE BY REMOTE COMMUNICATION TECHNOLOGY FOR THE ISSUANCE OF A MARRIAGE LICENSE FOR UNIFORMED SERVICES MEMBERS WHO ARE DEPLOYED OR ON ACTIVE DUTY; PROVIDING FORMS; ENACTING THE DOMESTIC PARTNER RIGHTS AND RESPONSIBILITIES ACT; PROVIDING FOR DOMESTIC PARTNERSHIPS; PROVIDING THAT A DISTRICT COURT SHALL HAVE JURISDICTION OVER DOMESTIC PARTNERSHIP PROCEEDINGS; PROVIDING A PROCESS FOR CERTIFYING DOMESTIC PARTNERSHIPS AND RESTRICTIONS ON DOMESTIC PARTNERSHIPS; PROVIDING FOR DISSOLUTION OF MARRIAGE ON GROUNDS OF THE MARRIAGE BEING VOID, VOIDABLE OR INVALID; AMENDING FEES; PRESCRIBING MARRIAGE AND DOMESTIC PARTNERSHIP RECORDING AND INDEXING GUIDELINES; AMENDING AND PRESCRIBING PENALTIES; CREATING CRIMINAL OFFENSES; REVISING TERMS THAT DESCRIBE PARTIES TO A MARRIAGE; CLARIFYING PROPERTY RIGHTS; AMENDING, REPEALING AND ENACTING SECTIONS OF CHAPTER 40 NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new Section 40-1-1.1 NMSA 1978 is enacted to read:
"40-1-1.1. [NEW MATERIAL] DEFINITIONS.--As used in Chapter 40, Article 1 NMSA 1978:
A. "Indian nation, tribe or pueblo" means an indigenous nation, tribe, pueblo or other band, organized group or community of Indians, including an Alaskan Native tribe, that is federally recognized by the bureau of Indian affairs of the United States department of the interior;
B. "judicial officer" means a person who is:
(1) a justice or judge of any of the courts established by the constitution or laws of New Mexico;
(2) a justice or judge of any of the courts established by the constitution or laws of the United States; or
(3) designated as a judicial officer by the laws or customs of an Indian nation, tribe or pueblo, if the nation, tribe or pueblo designates judicial officers;
C. "religious ceremony" means a ceremony conducted pursuant to any exercise of religion, whether or not compelled by or central to a system of religious belief, construed in favor of a broad protection of religious exercise to the maximum extent pursuant to the state and federal constitutions;
D. "religious officer" means a person who is:
(1) ordained as clergy by a religious society;
(2) authorized to solemnize a marriage by the written and approved rites or rules of a religious society; or
(3) designated by the laws or customs of an Indian nation, tribe or pueblo as a religious officer, if the nation, tribe or pueblo designates religious officers;
E. "religious society" means a religious organization, including a church, mosque, synagogue, temple, denominational ministry, nondenominational ministry, interdenominational or ecumenical organization, mission organization, faith-based social agency, religious educational institution or any other nonprofit entity whose principal purpose is the study, practice or advancement of religion;
F. "solemnize" means to join in marriage before witnesses by means of a ceremony;
G. "uniformed services" means:
(1) the active or reserve components of the United States army, navy, air force, marine corps, space force, coast guard or merchant marine;
(2) the commissioned corps of the United States public health service, the national oceanic and atmospheric administration or the astronaut program of the national aeronautics and space administration; and
(3) the army national guard division and the air national guard division of the department of military affairs; and
H. "witnesses" means two individuals at least eighteen years of age chosen by a couple to witness a ceremony and, if needed, to testify to the time and place where the ceremony took place."
SECTION 2. Section 40-1-2 NMSA 1978 (being Laws 1859-1860, p. 120, as amended) is amended to read:
"40-1-2. MARRIAGES SOLEMNIZED--[ORDAINED CLERGY OR CIVIL MAGISTRATES] WHO MAY SOLEMNIZE.--
A. The civil contract of marriage is entered into when solemnized as provided in Chapter 40, Article 1
NMSA 1978. [As used in Chapter 40, Article 1 NMSA 1978, "solemnize" means to join in marriage before witnesses by means of a ceremony.
B. A person who is an ordained member of the clergy or who is an authorized representative of a federally recognized Indian nation, tribe or pueblo may solemnize the contract of marriage without regard to sect or rites and customs the person may practice.]
B. The civil contract of marriage may be solemnized by a ceremony officiated by:
(1) a judicial officer;
(2) a religious officer; or
(3) such other person over the age of twenty-one selected by the parties to the marriage to officiate at the ceremony.
C. [Active or retired judges, justices and magistrates of any of the courts established by the constitution of New Mexico, United States constitution, laws of the state or laws of the United States are civil magistrates having authority to solemnize contracts of marriage. Civil magistrates solemnizing contracts of marriage] A judicial officer shall charge no fee [therefor] to solemnize the civil contract of marriage."
SECTION 3. Section 40-1-3 NMSA 1978 (being Laws 1862-1863, p. 66, as amended) is amended to read:
"40-1-3. CEREMONY BY RELIGIOUS SOCIETY OR INDIAN NATION, TRIBE OR PUEBLO.--[It is lawful for]
A. Any religious society or [federally recognized] Indian nation, tribe or pueblo [to] may lawfully solemnize a marriage conformably with its rites and customs, and the religious officer, secretary of the society or the person authorized by the society or [federally recognized] Indian nation, tribe or pueblo shall make and transmit a transcript to the county clerk certifying to the marriages solemnized.
B. Nothing in Chapter 40, Article 1 NMSA 1978 shall be construed in any manner to interfere with any form of religious ceremony, traditional indigenous ceremony, additional regulation or requirement prescribed by any religious society or Indian nation, tribe or pueblo nor with any records kept by them."
SECTION 4. Section 40-1-4 NMSA 1978 (being Laws 1862-1863, p. 64, as amended) is amended to read:
"40-1-4. FOREIGN MARRIAGES RECOGNIZED.--[Sec. 5.]
A. All marriages celebrated beyond the limits of this state [which] that are valid according to the laws of the country [wherein] or state in which they were celebrated or contracted shall be [likewise] valid in this state and shall have the same force as if they had been celebrated in accordance with the laws in force in this state.
B. A marriage that is polygamous or plural is contrary to Section 1 of the Compact with the United States, notwithstanding the laws of the state or country wherein that marriage or polygamous or plural additions to that marriage were celebrated or contracted."
SECTION 5. Section 40-1-6 NMSA 1978 (being Laws 2013, Chapter 144, Section 4) is amended to read:
"40-1-6. RESTRICTIONS ON MARRIAGE OF MINORS--VOIDABLE.--[A.] The county clerk shall not issue a marriage license to an unemancipated person sixteen or seventeen years of age, and no person authorized by the laws of this state to solemnize marriages shall knowingly unite in marriage any person sixteen or seventeen years of age, unless the minor first receives the written consent of each of the minor's living parents as shown on the minor's certificate of birth, or the district court has authorized the marriage of such person upon request of a parent or legal guardian of the person for good cause shown, and a certified copy of the judicial authorization is filed with the county clerk; provided that the other person to whom the marriage license is issued is within four years of the age of the sixteen- or seventeen-year-old who is authorized to be issued a marriage license pursuant to this section.
[B. The county clerk shall not issue a marriage license to any person under sixteen years of age, and no person authorized by the laws of this state to solemnize marriages shall knowingly unite in marriage any person under sixteen years of age, unless the children's or family court division of the district court has first authorized the marriage of the person upon request of a parent or legal guardian of the person in settlement of proceedings to compel support and establish parentage, or where an applicant for the marriage license is pregnant, and a certified copy of the judicial authorization is filed with the county clerk.]"
SECTION 6. Section 40-1-7 NMSA 1978 (being Laws 1876, Chapter 31, Section 1, as amended) is amended to read:
"40-1-7. INCESTUOUS MARRIAGES--VOID.--[All] The following incestuous marriages between relations [and children, including] are prohibited in this state:
A. grandparents [and] with grandchildren, [of all degrees; between] including great-grandparents with great-grandchildren;
B. parents with their children;
C. siblings, being brothers [and] or sisters; [of full blood or of half blood; between]
D. cousins within the first degree of consanguinity; and
E. aunts or uncles, [and] with nieces [and between aunts and] or nephews [are declared incestuous and absolutely void]."
SECTION 7. Section 40-1-9 NMSA 1978 (being Laws 1876, Chapter 32, Section 1, as amended) is repealed and a new Section 40-1-9 NMSA 1978 is enacted to read:
"40-1-9. [NEW MATERIAL] POLYGAMOUS OR PLURAL MARRIAGES--INVALID.--Pursuant to Section 1 of the Compact with the United States, polygamous or plural marriages are prohibited in this state."
SECTION 8. Section 40-1-10 NMSA 1978 (being Laws 1905, Chapter 65, Section 1, as amended) is amended to read:
"40-1-10. LICENSE REQUIRED--COUNTY CLERK.--
A. Each couple desiring to marry pursuant to the laws of New Mexico shall first obtain a license from a county clerk of this state and, following a ceremony conducted in this state, file the license for recording in the county issuing the license.
B. To obtain a marriage license, the couple shall personally appear at the office of the county clerk or before the county clerk or an authorized deputy county clerk issuing the license, and each person shall provide government-issued identification with a photograph that resembles the person seeking to marry or other sufficient identification to satisfy the county clerk or authorized deputy county clerk as to each person's identity and qualification to receive a marriage license pursuant to Chapter 40, Article 1 NMSA 1978. On application to a judge of the district court, the court, for good cause, may authorize a person unable to appear personally to obtain a license from the county clerk, and a certified copy of the judicial authorization shall be filed with the county clerk.
C. A member of the uniformed services who is deployed or activated to a duty assignment or station outside of this state may be issued a marriage license without appearing personally in the office of the county clerk and without a judicial authorization as provided for in Subsection B of this section if:
(1) the other party to the marriage appears personally in the office of the county clerk or before the county clerk or an authorized deputy county clerk;
(2) at least one party to the marriage is a permanent or temporary resident of the county of the county clerk's office issuing the license;
(3) the deployed person fills out the declaration provided by the county clerk for this purpose;
(4) a copy of the order deploying or activating the person and indicating the place of the duty assignment or station is attached to the declaration;
(5) the declaration and copy of the deployment or activation order is filed with the county clerk; and
(6) the civil contract of marria