Contrary to your column of some years ago [More of the Straight Dope, page 329], there is authority that a marriage performed by a ship’s captain on the high seas is valid. In Fisher v. Fisher in 1929 the New York Court of Appeals (the state’s highest court) held that “in the absence of any such law which condemned the marriage …” such a marriage was valid. The court also reasoned that Congress “had recognized that on board a ship at sea … there is … a law of marriage,” because Congress had enacted a statute requiring a vessel’s master to keep a log book recording every marriage taking place on board. (There is still such a statute.) Fisher is still reported as good law in Corpus Juris Secundum, although other authorities are to the contrary. –John Ratnaswamy, Chicago

Oh, God, not Fisher v. Fisher. The case is one of those freaks that crop up frequently in marriage law and make it impossible to offer any sweeping statement, about ships’ captains or anything else, without having it studded through with asterisks and qualifications.

Let’s start with the one rock of certainty in this discussion: No state has enacted a statute explicitly authorizing ships’ captains to solemnize marriages. However, in ruling on the validity of such marriages, the courts have waffled. On the one hand there is a long-standing legal presumption that if two people think they got married, they did get married, even if the proceeding by which this was accomplished was suspect. On the other hand, judges have also felt, jeez, we can’t let just anybody solemnize marriages, we gotta have rules.

This ambivalence has resulted in decisions on both sides of the fence. In Fisher v. Fisher the court ruled a marriage by a ship’s captain valid; in an 1898 case in California, Norman v. Norman, the court ruled the opposite. It’s important to note that in Fisher the court did not specifically single out ships’ captains (as opposed to, say, mailmen) as having the power to perform marriages; rather it ruled that, absent a statute to the contrary, and subject to certain other conditions, an exchange of vows between consenting parties constituted a valid marriage–as I read it, whether there was an officiant or not. In other words, marriage by ship’s captain, or by anybody other than a recognized minister, JP, etc, was a type of common-law marriage.

There are still some states that recognize common-law marriage. Typically all that’s necessary is that the parties (1) be legally free to marry (e.g., no undissolved prior marriages), (2) properly consent, (3) “cohabit” (do it), (4) live together, and (5) let the neighbors think they’re married. (Contrary to common belief, it is not necessary that the couple live together for seven years.)

What’s not required are the services of a minister. So while you’re correct in saying “there is authority that a marriage performed by a ship’s captain on the high seas is valid,” captains don’t have any special powers in this regard. A close reading of Fisher suggests the ceremony might as well have been performed by a waiter.

Granted the issue isn’t as clear as it might be. The family-law experts I spoke with scoffed at the idea that courts in the 1990s would recognize marriages by ships’ captains on a non-common-law basis. (That is, unless the captain had been granted the right under the laws of a foreign country, in which case recognition would be granted as a matter of course.) But you never know. There has been at least one case in which the court recognized a marriage performed by a “minister” who had gotten his credentials by mail order from the Universal Life Church. By comparison to such patent flakery, ships’ captains seem like the soul of rectitude.

Clearly this is a matter in which you could make a valuable contribution yourself, John. One decent test case and we could get this matter cleared up for good. Besides, getting hitched on the high seas sure beats a reception at the Elks Club.

Art accompanying story in printed newspaper (not available in this archive): illustration/Slug Signorino.