Marriages Performed by a Notary (Florida, South Carolina, Maine)

Florida Now Issuing Marriage Licenses to Same-Sex Couples; Florida Notaries May Officiate
Copyright, American Society of Notaries  |  Published Jan. 6, 2015

Overview
In August 2014, Federal Judge Robert L. Hinkle (Tallahassee) ruled that the constitutional rights of same-sex couples were violated by Florida’s 2008 constitutional amendment that defined marriage as a union between one man and one woman. 

To allow time for appeals, Judge Hinkle stayed his own ruling until the end of the day, January 5, 2015. Meanwhile, the judge clarified his ruling and its statewide applicability. Ultimately the judge’s own stay expired with no extension by either a federal appeals court or the U.S. Supreme Court, enabling the August 2014 ruling that allows same-sex marriages in Florida to finally go into effect on January 6, 2015.

Florida Notary Marriage FAQs
Q. May a Florida notary perform a marriage ceremony for a same-sex couple?
A. If a same-sex couple has a validly issued marriage license from a Florida county clerk, then at this point in time a Florida notary may perform their marriage ceremony.

Q. May I officiate for a same-sex couple who obtained a license from another state?
A. A Florida notary cannot officiate for any wedding unless the marriage license is issued in Florida.

Q. Am I required to officiate in the Florida county where the license was issued?
A. A Florida notary may perform a marriage ceremony anywhere in Florida, no matter which Florida county issued the license. The notary must be sure to return the executed marriage license to the issuing clerk’s office (which may be a different county clerk’s office than where the ceremony is performed).

Q. May I officiate for a family member?
A. A Florida notary may perform a marriage ceremony for any family member. The prohibition against notarizing for mother/father, son/daughter or spouse does not apply to performing marriages.

Q. Is there a specific ceremony I should use for a same-sex couple?
A. The notary-officiant must ensure there is an actual exchange of vows (“I [name] take you [name] to be my lawfully wedded spouse….”) but otherwise, the content of the ceremony may be anything the couple wishes.

Q. Are witnesses required?
A. While a Florida marriage license may have a space for witnesses to sign, witnesses are not required. 

Q. Is the marriage license effective when it is issued?
A. Not necessarily. In Florida, couples may choose a three-day waiting period for a license to be effective, or take a statutorily-prescribed, four-hour course. With proof of course completion, the marriage license can be issued and effective the same day. Otherwise, the three-day waiting period applies. The marriage license will have an issue date, an effective date, and an expiration date. The ceremony cannot be held unless it occurs within the effective and expiration dates.

Q. What may I charge for performing a wedding?
A. A Florida notary may charge up to $30 for performing a marriage ceremony.  Charges for any additional, non-notarial services such as helping with the wedding arrangements should be itemized separately, to avoid any perception of overcharging for the notary service.

Q. May I refuse to perform a same-sex marriage for any reason?
A. A Florida notary may refuse to provide notarial services if doing so would cause the notary to commit a prohibited act, or if there is some deficiency such as the client not being personally present before the notary. However, if the reason for refusing to notarize is based solely on the notary’s personal beliefs on matters such as age, religion, gender, race, etc., the refusal would be viewed as discriminatory. See the following discussion.

No Discrimination
Performance of a marriage ceremony is an authorized duty of Florida notaries. As public officers, Florida notaries are compelled to make their services available to all who ask, without discriminating based on personal beliefs. 

Because same-sex marriages are now legal in Florida, declining to officiate a wedding for a same-sex couple because of a personal belief that they should not be allowed to marry would be viewed as discriminatory. Refusal of any notary service should be based on following proper notarial procedure and practices. A Florida notary may decline or refuse to notarize or officiate for a wedding if doing so would cause the notary to commit a prohibited act, or if there is some deficiency such as the client not being personally present before the notary. Other non-statutory reasons to decline would include a conflict in the notary’s schedule or unavailability due to other commitments, or inexperience with the notarial act (such as a wedding ceremony) which could cause the notary to perform it improperly.

Notaries with questions about legal ramifications of refusing to officiate for a same-sex wedding because of the notary’s personal beliefs about same-sex marriages should consult an attorney.

Tips for Officiating a Wedding
For any Florida wedding ceremony, remember to perform these basic checks and steps.

1. Obtain and review the marriage license prior to the ceremony to make these determinations:
  a) Is the license issued by a Florida county clerk? Which county clerk?
  b) What is the effective date and expiration date of the license; is the ceremony occurring within those dates? (Caution: the issue date of the license may be prior to the effective date. Perform the ceremony only within the effective date and expiration date!)
  c) Who are the parties to be married?  Do you know them personally? If not, American Society of Notaries recommends that you satisfactorily identify them as a best practice.
2. Check with the issuing clerk’s office for any specific guidance or requirements the clerk has for the officiant’s completion and filing of the marriage license.
3. Make sure you have physical possession of the marriage license before performing the ceremony, to prevent missteps such as the couple leaving without signing the license, or taking the license with them.
4. If you regularly maintain a notary journal or recordbook, complete an entry for the marriage ceremony just as you would for any other notarial act; have the couple sign the entry.
5. Remember that as officiant, you are responsible for filing the completed marriage license within 10 days following the marriage ceremony.  The completed license must be filed with the issuing county clerk.
6. Certified copies of the completed marriage license must be obtained from the clerk of the county where the license is filed.  Once filed the marriage license is a public record, and is therefore ineligible for copy certification by a notary public.  Any couple requesting certified copies of the completed marriage license should be referred to the appropriate county clerk’s office. 

Questions? Comments?  Email Kathleen@asnnotary.org
 

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