Legal Corner: Is my marriage legal?

Video: Legal Corner - Is my marriage legal?

QUESTION: My new husband was insistent on having his brother marry us instead of our pastor. I reluctantly agreed and now have found out that his brother did not register with the clerk of court after becoming certified. Am I even legally married because his brother was not registered with the court before our ceremony?

ANSWER: You may NOT be legally married because the ceremony was not performed in accordance with the law which states that a marriage ceremony may be performed by someone who is authorized by the authorities of his religion may perform marriage ceremonies only after he registers by recording an affidavit stating his lawful name, denomination, and address with the clerk of court of the parish in which he mainly performs marriage ceremonies. So, you may want to renew the vows with your Pastor.

THE LAW: Louisiana Legislature Civil Code clearly states in R.S. 9 Art.§202. Authority to perform marriage ceremony: A marriage ceremony may be performed by:(1) A priest, minister, rabbi, clerk of the Religious Society of Friends, or any clergyman of any religious sect, who has attained the age of majority and is authorized by the authorities of his religion to perform marriages, and who is registered to perform marriages;

(2) A state judge or justice of the peace. §203. Officiant; judges and justices of the peace A. Judges and justices of the peace may perform marriage ceremonies within the following territorial limits: (1) A justice of the supreme court within the state; (2) A judge of a court of appeals within the circuit;

(3) A judge of a district court within the district;

(4) A judge of a family court, juvenile court, parish court, city court, or, in Orleans Parish, a municipal or traffic court, within the parish in which the court is situated; and

(5) A justice of the peace within the parish in which the court of that justice of the peace is situated, and in any parish within the same supreme court district, or in a parish that has no justice of the peace court, except for Orleans Parish. B. A judge’s authority to perform marriage ceremonies continues after he retires. C. A retired justice of the peace who has served a total of eighteen years in that capacity shall retain his authority to perform marriage ceremonies within the territorial limits authorized in Subsection A of this Section provided he registers to perform such ceremonies as required by R.S. 9:204. D. Notwithstanding the provisions of Paragraph (A)(5) of this Section, a justice of the peace within any of the parishes of DeSoto, Bossier, Caddo, Bienville, Webster, or Red River may perform marriage ceremonies within any of these parishes. E.(1) A United States District Court judge or magistrate judge of the Eastern District of Louisiana, Middle District of Louisiana, or Western District of Louisiana may perform marriage ceremonies in this state upon the adoption of a court rule, resolution, or standing order by a majority of the judges sitting en banc authorizing judges to perform such ceremonies.(2) A judge of a court of the United States whose official duty station includes a municipality having a population in excess of one hundred five thousand but less than one hundred thirty thousand persons according to the latest decennial census may perform marriage ceremonies within his official duty station. The authority granted by this Paragraph shall be effective only from August 1, 2012, through September 1, 2012.Art. 204 goes on to state that an officiant, other than a judge or justice of the peace, may perform marriage ceremonies only after he registers to do so by depositing with the clerk of court of the parish in which he will principally perform marriage ceremonies, or, in the case of Orleans Parish, with the office of the state registrar of vital records, an affidavit stating his lawful name, denomination, and address.

QUESTION: I was recently watching the movie Castaway, where Tom Hanks is presumed dead and later resurfaces, and I was curious in real life, how long does a person have to be missing before they are declared dead and what happens to a persons’ money or property if was all distributed and later found to be alive for whatever reason?

ANSWER: Anyone who has been an absent person for five years is presumed to be dead. Those who became “absent” after Hurricanes Katrina and Rita are presumed dead after two years. If a person who has been declared dead reappears, they shall be entitled to recover their property that still exists in the condition in which it is found from those who took it as successors. They may also recover the net income of things sold. However, a person who is presumed to be dead or who has been declared dead at a time a succession would have been opened in his favor, cannot receive anything as an heir to another’s succession. The estate of the deceased is distributed as if you were dead at the time of the opening of the succession.

THE LAW: LA CIV CODE Art. 54. Absent person; declaration of death: One who has been an absent person for five years is presumed to be dead. If the absence commenced between August 26, 2005, and September 30, 2005, and was related to or caused by Hurricane Katrina or Rita, the absent person who is not currently charged with an offense that is defined as a felony under the laws of the state of Louisiana or the United States of America shall be presumed dead after the passage of two years. Upon petition by an interested party, the court shall render judgment declaring the death of the absent person and shall determine the date on which the absence commenced and the date of death. Art. 55. The succession of the person declared dead shall be opened as of the date of death fixed in the judgment, and his estate shall devolve in accordance with the law of successions. Art. 56. New evidence as to time of death: If there is clear and convincing new evidence establishing a date of death other than that determined in the judgment of declaration of death, the judgment shall be amended accordingly. Persons previously recognized as successors are bound to restore the estate to the new successors but may keep the fruits they have gathered. Art. 57. Reappearance of absent person; recovery of his property: If a person who has been declared dead reappears, he shall be entitled to recover his property that still exists in the condition in which it is found from those who took it as his successors or from their transferees by gratuitous title. He may also recover the net proceeds of things alienated and for the diminution of the value of things that has resulted from their encumbrance. Art. 58. Succession rights of person presumed dead or declared dead A person who is presumed to be dead or who has been declared dead at a time a succession would have been opened in his favor cannot be a successor. The estate of the deceased devolves as if that person were dead at the time of the opening of the succession effect.

QUESTION: I live in a sub-division in Lake Charles and the homes are built close to one another. I know this is silly, but my neighbor and I got into a very heated argument because he told me he did not want the water from the edges of my roof to fall on his ground? I laughed because I thought he was kidding; however, he was being serious and ridiculous right? Is there a law that states rain water cannot fall onto my neighbors’ ground?

ANSWER: As ridiculous as it may sound, your neighbor has a legal right for water from your roof not to fall on his ground. The resolve to this is the installation of rain gutters around your roof. A gutter’s main purpose is to funnel water off the roof and away from the home. Too much water falling too close to your home can erode the soil around it, compromise the home’s foundation causing it to settle leading to uneven floors and cracked walls and cracks in the chimney. Therefore, it is in the best interest of both you and your neighbor to look into placing the gutters around your roof.

THE LAW: Louisiana Legislature Civil Code Art. 664 Rain drip from roof: Rain drip from roof. A landowner is bound to fix his roof so that rainwater does not fall on the ground of his neighbor.

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