MacDougall v. Levick

PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Millette,
S.J.
RICHARD S. LEVICK
OPINION BY
v. Record No. 160540 JUSTICE D. ARTHUR KELSEY
November 2, 2017
DEBORAH MACDOUGALL
DEBORAH MACDOUGALL
v. Record No. 160551
RICHARD S. LEVICK
FROM THE COURT OF APPEALS OF VIRGINIA
Richard S. Levick and Deborah MacDougall married in 2002. During a divorce
proceeding 10 years later, Levick asserted — for the first time — that their marriage was void ab
initio. On this ground, Levick claimed that he could repudiate a marital agreement requiring him
to pay spousal support and to distribute the marital assets.
The circuit court agreed in full with Levick’s reasoning. The Court of Appeals agreed
only in part, holding that the marriage was merely voidable, not void ab initio. We disagree
entirely with Levick’s reasoning and hold that the marriage was not voidable or void ab initio.
The circuit court, therefore, had authority to distribute the marital assets consistent with the
marital agreement and to continue its adjudication of the divorce proceeding.
I.
On December 21, 2002, Levick and MacDougall participated in a wedding ceremony in
their home in the presence of friends and family. Before the ceremony, the officiating rabbi
discovered that the parties had not yet obtained a marriage license. The rabbi suggested that
Levick and MacDougall participate in the ceremony that day as long as they obtained a marriage
license and submitted the marriage certificate to the rabbi as soon as possible. On January 6,
2003, MacDougall went to the courthouse with Levick to obtain the license. See 2 J.A. at 673,
679, 802. 1 Levick told MacDougall that he would mail the marriage register out right away to
the rabbi, and she agreed and kissed him goodbye. See id. at 683, 803. After the rabbi received
the marriage register, which included the license and certificate, he executed the marriage
certificate and verified that the parties were married on the date of execution, not the prior date
of the ceremony in their home. 2
As the rabbi explained in his testimony, he was “completing” the solemnization that
began with the ceremony. 3 id. at 979. His receipt of the marriage register in the mail from
Levick and MacDougall demonstrated the couple’s “intention . . . to complete the ceremony.”
Id. at 983. Levick conceded in the proceedings below that “[their] intention was to be legally
married,” when he and MacDougall followed the rabbi’s instructions, obtained the license, and
mailed the marriage register to the rabbi. See id. at 773-76 (emphasis added). Levick
understood that they “needed a license and it had to be signed by the rabbi” and that “it was
necessary to do [so] in order to be lawfully married.” Id. at 776 (emphases added). In response
to a question asked by Levick’s counsel about whether she thought that she was married on
December 21, 2002, MacDougall responded that she “didn’t think that it was over” on December
21 because the rabbi “had told [them] what [they] had to do,” and if she “thought it was all
1
The record in this case has been sealed by order of the circuit court, see R. at 4275, and
one of the five joint appendices filed in this appeal has been sealed by order of this Court. To the
extent that this opinion mentions facts found in the sealed record, we unseal only those specific
facts, finding them relevant to the decision in this case. The remainder of the previously sealed
record remains sealed.
2
Levick and MacDougall obtained the license on January 6, 2003, approximately two
weeks after their ceremony. Levick then mailed the marriage register to the rabbi on behalf of
himself and MacDougall, thereby ratifying and republishing to the officiant their intent to marry.
Because the rabbi was out of town at the time, he did not receive the marriage register until
January 21, 2003. He executed the marriage certificate on January 21, identified the date of
marriage as January 21, and later returned the marriage register to the clerk’s office.
2
finished, then [she] wouldn’t have gone to the Courthouse” thereafter to obtain the marriage
license. Id. at 825-26. Under their agreement, the ultimate expression of their solemn intent to
marry was their act of forwarding the marriage register to the rabbi for the sole purpose of him
acknowledging that intent by executing the marriage certificate. The rabbi identified the date of
the marriage as the date that he received the marriage register and executed the marriage
certificate. See supra at 2 & note 2.
In 2009, the marriage began to deteriorate. Levick and MacDougall entered into a
marital agreement to “form the foundation of a divorce or separation agreement, should either
come to pass.” 1 J.A. at 3. If either did occur, Levick agreed to pay MacDougall $150,000 in
spousal support annually and pay for her health insurance premiums for the remainder of her
lifetime. Levick also agreed to divide equally the proceeds from the sale of the marital home,
and, in the event that he sold his company, MacDougall would receive 35% of the proceeds.
The parties filed for divorce in 2011. Nearly two years into the divorce litigation, Levick
filed a motion arguing for the first time that the marriage was void ab initio — that is, a
“complete nullity” under the law, Jones v. Commonwealth, 293 Va. 29, 53, 795 S.E.2d 705, 719
(2017) (citation omitted) — because they had obtained the marriage license 16 days after the
marriage ceremony in their home. 3 This time lapse, he contended, violated Code § 20-13 and
rendered the marriage void ab initio, thus placing him outside the equitable powers of the divorce
court and allowing him to repudiate his marital agreement. The circuit court agreed and rejected
MacDougall’s arguments in support of enforcing the marital agreement.
3
Levick’s fortuitous late discovery of this basis for challenging his marriage is
accentuated by his testimony that he believed they “were properly and legally married” up until
he learned in the midst of the divorce litigation that the date on the marriage certificate was
different than the date of the wedding ceremony in their home. See 2 J.A. at 768.
3
On appeal, the Court of Appeals agreed that the ceremony-before-license sequence
violated an implied term in Code § 20-13 but rejected the circuit court’s conclusion that the
violation rendered the marriage void ab initio. See MacDougall v. Levick, 66 Va. App. 50, 69-
70, 782 S.E.2d 182, 191-92 (2016). Treating the marriage as merely voidable, the Court of
Appeals nonetheless affirmed the circuit court’s decision to hold the marital agreement
ineffectual and rejected MacDougall’s assertion that, under equitable principles, the agreement
should be enforced even if the marriage was voidable. See id. at 81-84, 782 S.E.2d at 197-98.
II.
On further appeal to this Court, MacDougall argues that Code § 20-13 does not mandate
a precise sequence for performing the marriage ceremony and obtaining the marriage license. To
be sure, she points out, the statute does not mention a marriage “ceremony” at all. Instead, the
statute addresses only the broader concept of solemnization. She adds that, even if this Court
were to infer a particular sequence for the license and solemnization requirements, a violation of
that judicially implied requirement would not render her marriage to Levick either void ab initio
or voidable. 4
A.
We begin our analysis where it will eventually end — with the first premise of Virginia
law governing marriages: “The public policy of Virginia . . . has been to uphold the validity of
the marriage status as for the best interest of society,” Needam v. Needam, 183 Va. 681, 686, 33
S.E.2d 288, 290 (1945), and thus, the presumption of the validity of a marriage ranks as “one of
the strongest presumptions known to the law,” Eldred v. Eldred, 97 Va. 606, 625, 34 S.E. 477,
4
Our holding addresses the arguments in both consolidated cases, Levick’s appeal in
Record No. 160540 (arguing that the marriage was neither valid nor voidable but, rather, void ab
initio) and MacDougall’s appeal in Record No. 160551 (arguing, among other things, that the
marriage was valid and neither voidable nor void ab initio).
4
484 (1899). This presumption is not unique to our Commonwealth. “[I]t will be readily
conceded that English and American tribunals tend, in construing the marriage acts, to uphold
every marriage, if possible, notwithstanding a non-compliance with the literal forms.” 2 James
Schouler & Arthur W. Blakemore, A Treatise on the Law of Marriage, Divorce, Separation and
Domestic Relations § 1191, at 1446 (6th ed. 1921). In our opinion, this robust presumption
withstands all of Levick’s arguments against it.
Levick’s main argument is quite simple: A marriage license must precede the marriage
ceremony, and the marriage is void ab initio if this sequence is not followed. While we admire
the brevity of Levick’s reasoning, it illustrates well the trenchant aphorism, often attributed to
Albert Einstein, that “[e]verything should be made as simple as possible, but not simpler.” 5
Levick’s argument evades a set of conceptually complex yet necessary legal questions: What are
the essential attributes of solemnization? Does solemnization necessarily end at the last moment
of the marriage ceremony? Are “solemnization” and “ceremony” exact synonyms, or is the latter
simply evidence of the former? Can the officiant and the celebrants agree to extend
solemnization for a brief period of time after the ceremony ends and, during that period, obtain
the marriage license and execute the marriage certificate?
To answer these questions, we start with the text of Code § 20-13: “Every marriage in
this Commonwealth shall be under a license and solemnized in the manner herein provided.”
That is a rather slow start, however, because there is no specific “manner herein provided”
anywhere in the Code of Virginia. As Levick concedes, nothing in Code § 20-13 expressly
indicates that the license and solemnization requirements must be performed in any particular
5
The Ultimate Quotable Einstein 475 (Alice Calaprice ed., 2011).
5
order for the marriage to be valid. See Appellee’s Br. at 12. 6 Nor does any provision of the
Code limit solemnization only to a ceremony.
In this case, the celebrants and the officiant agreed upon the manner in which they
intended to solemnize the marriage. Based on that understanding, Levick and MacDougall
obtained the license together and mutually agreed that Levick would mail the marriage register to
the rabbi right away. By doing so, they reasserted their mutual intent to marry. On the date that
the rabbi executed the marriage certificate, not the date of the earlier ceremony, the marriage
began because solemnization was complete pursuant to their agreement. As the rabbi explained,
he was “completing” their solemnization agreement that began with the ceremony and ended
when he received the marriage register and executed the marriage certificate. 3 J.A. at 979.
We know of no statute or opinion of this Court forbidding the celebrants and the officiant
from agreeing to this particular manner of solemnization. While it may be unconventional, it
should not be judicially deemed unlawful (much less void ab initio) unless the General Assembly
has expressly declared it to be so. The legislature, however, has chosen not to micromanage the
details of solemnization. Nor have we.
Under our precedent, “no particular form of marriage ceremony is required,” Alexander
v. Kuykendall, 192 Va. 8, 11, 63 S.E.2d 746, 748 (1951), because Virginia “has no official
interest” in the details of “the ceremony or ritual which surrounds the act,” Cramer v.
Commonwealth, 214 Va. 561, 565, 202 S.E.2d 911, 914 (1974). What matters is the solemnity
of the celebrants’ representations to the officiant of their sincere intent to marry. See id. (“The
interest of the state is not only in marriage as an institution, but in the contract between the
parties who marry, and in the proper memorializing of the entry into, and execution of, such a
6
All citations to briefs reference those filed in MacDougall’s appeal, Record No. 160551.
6
contract.”). For the purposes of solemnization, a ceremony merely serves to authenticate the
parties’ intent to marry.
Levick contends that no precedent expressly authorizes the unconventional solemnization
that he, his wife, and the rabbi agreed to complete in advance. See Appellee’s Br. at 18-20; see
also post at 22. True enough. But that contention inverts the burden of proof. As the party
challenging the validity of his marriage, Levick bears the burden of proving that it violates
Virginia law. See Parker v. American Lumber Corp., 190 Va. 181, 185, 56 S.E.2d 214, 216
(1949). He attempts to shoulder that burden by asserting that Code § 20-13 requires every
marriage in Virginia to be licensed and solemnized. Again, this statement is true. But, as the
marriage certificate attests, the couple was married on January 21, 2003 — 15 days after he and
MacDougall reaffirmed their mutual intent to marry by forwarding their marriage license to the
rabbi pursuant to their earlier agreement. 7
For over half of a century, Attorneys General of Virginia have been of the opinion that
“Virginia law does not require that the parties to a marriage be in the presence of each other, or
in the presence of the person officiating at the ceremony, for the marriage to be valid.” 1987-
1988 Op. Atty. Gen. 316, 317-18; see also 1959-1960 Op. Atty. Gen. 219, 220-21 (stating that
“[t]he Virginia statute does not provide that both the parties must be in the presence of the
7
Before the circuit court and the Court of Appeals, Levick relied upon an unpublished,
per curiam opinion from the United States District Court of the Virgin Islands, In re Khalil, No.
2001/183, 2003 U.S. Dist. LEXIS 6229 (D.V.I. Apr. 4, 2003). In that case, the federal district
court interpreted a marriage statute of the Virgin Islands. The Supreme Court of the Virgin
Islands, however, later repudiated Khalil as an erroneous interpretation of its marriage statute.
See Hamed v. Hamed, 63 V.I. 529, 540 (2015). Holding that “the fact that [the couple] failed to
obtain a license prior to solemnization of their marriage — without more — did not render their
marriage invalid,” the Supreme Court of the Virgin Islands rejected Kahlil’s judicial
interpolation of such a requirement into the marriage statute. Id. at 542. That court further
discounted Khalil as an unpublished, per curiam opinion, which, as the court issuing Khalil had
“itself decreed,” should be regarded as having no “precedential value.” Id.
7
officiating minister when the marriage is solemnized,” and thus, “[i]n the absence of a statutory
requirement that the parties be in the presence of each other when entering into [a marriage], it
would seem that the agreement may be completed at long distance”). 8
It is unnecessary in this case to determine what qualifications or limiting principles apply
to the opinions of the Attorneys General. For the present, it is enough to simply observe that if
the views of the Attorneys General are even half-right, the solemnization agreement in this case
(a ceremony followed shortly thereafter by the issuance of a marriage license, the joint
presentation of the marriage register to the officiant, and the officiant’s execution of the marriage
certificate) did not violate any existing Virginia statute or case law. The “principal objects” of
statutes similar to Code § 20-13, which require a license and solemnization for a valid marriage,
“are to insure publicity and preserve evidence of marriages.” Joseph R. Long, A Treatise on the
Law of Domestic Relations § 60, at 99 (2d ed. 1913). 9 The solemnization in this case satisfied
both of those objects.
8
The dissent relies upon an unpublished Court of Appeals opinion, for the proposition
that “whatever formalities the [solemnization] requires, at the very least it requires the attendance
of both the prospective bride and groom.” Post at 31 n.13 (alteration in original) (quoting
Davidson v. Davidson, No. 2356-08-3, 2009 Va. App. LEXIS 313, at *5 (July 14, 2009)).
Davidson is completely dissimilar from the present case. To begin, the dissent substitutes
“solemnization” for the word “ceremony” in the Davidson opinion — two words that both the
majority and dissent agree should not be treated as exact synonyms. See supra at 9-11; see also
post at 24 n.3. Second, the ceremony was the only evidence of solemnization in Davidson,
which is not true here. Finally, the bride in Davidson made an agreement with the officiant after
the ceremony and outside the presence of the groom to re-sign the marriage certificate with a
later date of marriage. In this case, both celebrants and the officiant agreed before the ceremony
to an alternative solemnization.
9
See, e.g., Bowman v. Bowman, 24 Ill. App. 165, 172 (1887) (“We think the word
‘solemnized,’ as used in our statute, is not to be construed as meaning only a ceremonial
solemnization, whether religious or official . . . .”); Dyer v. Brannock, 66 Mo. 391, 396-97, 417-
18 (1877) (upholding the validity of a marriage solemnization in which the couple merely
announced before several family members and strangers their agreement to live together as
husband and wife, “to which they both assented by an inclination of the head”); Pearson v.
8
B.
Levick’s contrary view — that “ceremony” and “solemnization” should be treated as
exact synonyms — fails to take into account that the Code of Virginia uses the two words for
different purposes in different contexts. Compare, e.g., Code § 32.1-267(C) (requiring a “person
who officiates at a marriage ceremony” to file the marriage certificate “within five days after the
ceremony”), with, e.g., Code § 20-13 (stating that “[e]very marriage in this Commonwealth shall
be under a license and solemnized in the manner herein provided”). Although the rabbi may
have violated Code § 32.1-267(C) by not filing the marriage certificate within five days of the
marriage ceremony that he officiated, neither that statute nor any other statute mandates that the
officiant’s violation voids the celebrants’ marriage. They have no control of whether he files the
certificate five, six, or sixty days later. The legal validity of their marriage cannot be so easily
extinguished.
Levick disagrees, arguing that the General Assembly intended for the marriage to be
judicially declared void if the issuance of the license does not precede the “solemnization
ceremony.” Appellee’s Br. at 20; see also id. at 57. However, the term “solemnization” does not
appear in Code § 32.1-267(C), and the term “ceremony” does not appear in Code § 20-13. The
dissimilar use of these terms implies that the General Assembly has declined to adopt a specific
definition for solemnization, leaving the details to the discretion of the officiant and the
celebrants. 10 If we were to transpose “ceremony” for “solemniz[ation]” in Code § 20-13, we
Howey, 11 N.J.L. 12, 17-21 (1829) (“It was never held essential to the validity of the [marriage]
contract that it should be made in any particular place, or in the presence of one person more
than another, provided that it could be sufficiently proved.”).
10
Our colleagues in dissent rely on Black’s Law Dictionary to determine the meaning of
“solemnization,” see post at 28 & n.9, but the definition of “solemnization” requires “a formal
ceremony . . . before witnesses,” Black’s Law Dictionary 1607 (10th ed. 2014). Neither a formal
9
would effectively amend the statute in a manner inconsistent with our traditional role as mere
expositors and not makers of the law. 11
Levick also makes much of the fact that the rabbi violated Code § 20-28, which prohibits
an officiant from “perform[ing] the ceremony of marriage without lawful license.” Perhaps the
rabbi did violate the statute. But his violation of Code § 20-28 does not affect the only two
requirements to create a valid marriage under Code § 20-13 — a license and solemnization.
“[L]egislation commanding formalities, even punishing those who celebrate marriage contrary to
its provisions, or punishing the parties themselves, will not render a marriage had in disregard of
it void, unless the statute expressly or by necessary implication declares this consequence.”
1 Joel Prentiss Bishop, New Commentaries on Marriage, Divorce, and Separation § 449, at 192
(1891); see also 2 James Kent, Commentaries on American Law 86-92 (1827) (noting that
violations of various statutory regulations of marriage, while they may impose penalties on the
officiant, do not ultimately affect the validity of the marriage). 12
Finally, Levick turns to Code § 20-14.1, which states in part that a marriage license
constitutes “authority for a period of only sixty days from the date of issuance for the
ceremony nor witnesses, however, are required by Virginia law. While these requirements may
exist in other jurisdictions, this dictionary definition is inconsistent with Virginia law.
11
See generally Gilliam v. McGrady, 279 Va. 703, 709, 691 S.E.2d 797, 800 (2010) (“It
is not the function of the courts to add to or amend clear statutory language.”); Signal Corp. v.
Keane Fed. Sys., 265 Va. 38, 46, 574 S.E.2d 253, 257 (2003) (“In this Commonwealth, courts
are required to apply the plain meaning of statutes, and we are not free to add language, nor to
ignore language, contained in statutes.”); Anderson v. Commonwealth, 182 Va. 560, 566, 29
S.E.2d 838, 841 (1944) (“Courts are not permitted to rewrite statutes.”).
12
See, e.g., Haggin v. Haggin, 53 N.W. 209, 211 (Neb. 1892) (“[A]lthough a license is
required [to perform a ceremony], yet a failure to procure the same, although it may render the
person performing the ceremony liable, will not of itself affect the validity of the marriage.”);
Martin v. Ryan, 2 Pin. 24, 25 (Wis. 1847) (“[I]f the person officiating had failed to comply with
the law in the particular mentioned, the only consequence would be his exposure to the penalty
of the law.”).
10
solemnization of a marriage of the licensees.” The marriage license issued to Levick and
MacDougall, however, was obtained 15 days prior to the culmination of their solemnization
agreement — the day on which the rabbi received the marriage register and executed the
marriage certificate as promised. Code § 20-14.1 does not address, much less prohibit, the
unique sequence agreed to by Levick, MacDougall, and the rabbi. Levick’s reliance on Code
§ 20-14.1 thus rests on the unproven assumption that the last moment of their ceremony ended
solemnization as a matter of law.
In short, Levick has not rebutted the strong presumption favoring the validity of his
marriage. Given the absence of any statute or controlling precedent requiring that his marriage
be declared void, we have no authority to do so. 13
III.
A.
On several points, we must regrettably part company with our dissenting colleagues. As
noted earlier, Code § 20-13 does not say anything about the required manner and sequencing of
solemnization. Nor do any other statutes require that a marriage in violation of the dissent’s
13
So strong is the presumption of validity that, even when it is rebutted, the General
Assembly protects marriages from being judicially invalidated in circumstances analogous to,
though not identical with, the circumstances in this case. Entitled “Belief of parties in lawful
marriage validates certain defects,” Code § 20-31 provides:
No marriage solemnized under a license issued in this
Commonwealth by any person professing to be authorized to
solemnize the same shall be deemed or adjudged to be void, nor
shall the validity thereof be in any way affected on account of any
want of authority in such person, or any defect, omission or
imperfection in such license, if the marriage be in all other respects
lawful, and be consummated with a full belief on the part of the
persons so married, or either of them, that they have been lawfully
joined in marriage.
11
view of solemnization be judicially declared void ab initio — a remedy the General Assembly
usually makes quite clear when it intends the courts to award it. See, e.g., Code § 20-43
(declaring bigamous marriages “absolutely void”). Because our duty “is not to make law, but to
construe it,” Saville v. Virginia Ry. & Power Co., 114 Va. 444, 452, 76 S.E. 954, 957 (1913), we
resist Levick’s invitation to interpolate into the marriage statutes an unwritten solemnization
requirement that, if violated, would treat a marriage as void ab initio, a legal nullity subject to
challenge at any time by anyone. 14
That said, the unusual fact pattern of this case allows us to occupy a narrow patch of
common ground with our dissenting colleagues. They concede that “[a]s long as this consent to
be married is presently expressed to and, at the same time, received by the officiant when the
celebrants possess a marriage license, a valid marriage is created.” Post at 30. We agree. That
is what happened in this case pursuant to the agreement between the rabbi and the parties.
MacDougall went to the courthouse with Levick to obtain the license, and he told her that
he would mail it out right away to the rabbi, to which she agreed before kissing him goodbye.
See 2 J.A. at 673, 679, 683, 803. MacDougall testified that “[f]orwarding the license was [their]
communication to [the rabbi].” Id. at 820. The rabbi similarly confirmed that, upon receiving
the marriage register sent by Levick and MacDougall in order to execute the marriage certificate,
14
We are also unpersuaded by the dissent’s reliance on cases declaring marriage statutes
to be mandatory rather than directory. The cases cited by the dissent address express statutory
requirements, just as this Court addressed in Offield v. Davis, 100 Va. 250, 256, 40 S.E. 910, 912
(1902), instead of judicially constructed inferential interpretations. See Pinkhasov v. Petocz, 331
S.W.3d 285, 294 (Ky. 2011) (construing a Kentucky marriage statute to require a license before
solemnization, which stated that “[n]o marriage shall be solemnized without a license therefor”
(citation omitted)); Roe v. Ludtke Trucking, 732 P.2d 1021, 1023 (Wash. Ct. App. 1987) (finding
that a woman, who merely cohabitated with a man, was not the man’s wife for the purposes of a
wrongful death claim because “a marriage can be created only by compliance with the statutory
provisions”); Kisla v. Kisla, 19 S.E.2d 609, 609-11 (W. Va. 1942) (finding that a marriage
solemnized in West Virginia with a Pennsylvania marriage license was not “under a license and
solemnized” as required by the West Virginia Code).
12
Levick and MacDougall irrefutably demonstrated to him their “intention . . . to complete the
ceremony.” 3 id. at 982-83. Levick further conceded in the proceedings below that “[their]
intention was to be legally married” when he was asked whether his “intention in complying
with the instructions of [the rabbi] was to fulfill the [rabbi’s] requirements” so that he “could be
legally married.” 2 id. at 773-74; see also id. at 776.
Solemnization, therefore, occurred when Levick and MacDougall obtained the marriage
register and forwarded it to the rabbi pursuant to their agreement, which they made with him in
person at the earlier ceremony, and the rabbi thereafter executed the marriage certificate in
accordance with their agreement. By doing so, Levick and MacDougall repeated and reaffirmed
to the officiant their joint, unqualified intent to marry — an intent that Levick has never once
disavowed. Nothing in any statute or case law forbids Levick and MacDougall from verifying
their intent to marry in this manner. 15
B.
On several fronts, the dissent’s characterization of our holding goes too far, requiring us
to repeat Justice Ginsburg’s observation that “Cassandra-like predictions in dissent are not a sure
15
The dissent quotes from Bishop’s marriage treatise, which states that “marriage cannot
be in abeyance,” post at 22 (quoting 1 Bishop, supra, § 347, at 144), because “the consent must
be to present marriage, not depending on a future condition, or to be for an instant postponed,”
post at 30 (emphasis in original) (quoting 1 Bishop, supra, § 238, at 103). This consent
requirement “render[s] competent parties husband and wife,” the dissent posits, because the
parties “must . . . mutually agree in the present tense to be such,” post at 30 (emphasis in
original) (quoting 1 Bishop, supra, § 299, at 124), and the celebrants must “represent to the
officiant” this “mutual, sincere present consent” for “proper solemnization,” post at 29 (citing 1
Bishop, supra, § 439, at 189). We agree with Bishop. But we disagree with the dissent’s
assertion that Levick and MacDougall somehow failed to express their present intent to marry
when they jointly forwarded the marriage register to the rabbi pursuant to their agreement. It is
factually incontestable that their act of doing so was both a present, unqualified expression of
their intent to marry as well as a joint request for the rabbi, upon his receipt of the register, to
execute the marriage certificate verifying their continuing, unqualified intent to marry.
13
guide to the breadth of the majority’s ruling.” Jones, 293 Va. at 57 n.26, 795 S.E.2d at 721 n.26
(quoting Lee v. Kemna, 534 U.S. 362, 386 (2002)). The dissent, for example, claims that “the
majority’s theory would allow a marriage to be solemnized based solely on the fact that the
celebrants had previously consented to be married.” Post at 29-30. We disagree. The Levick-
MacDougall marriage began after the ceremony, after the issuance of the marriage license, and
after they reasserted their mutual, unconditional, unqualified, present intent to be married by
forwarding the marriage register to the rabbi for the purpose of him signing the marriage
certificate pursuant to their agreement. Only after all of these events did the marriage legally
begin. 16
Even further afield is the speculation over the validity of underage marriages, post at 35-
36, “indefinite secret period[s] during which an apparent marriage is in legal limbo,” post at 36,
16
The dissent states that the rabbi “admitted that he did not solemnize the marriage” after
the initial wedding ceremony. Post at 33. This is an overstatement. The only admission by the
rabbi was in response to a compound question from Levick’s counsel asking whether the parties,
since December 21, 2002, had ever “exchanged vows of marriage or otherwise solemnized
[their] marriage in your presence.” 3 J.A. at 1040. The rabbi then answered: “No. We didn’t
repeat any part of the ceremony. So we did the ceremony just on December 21st and I filled out
the paperwork as soon as I received it on January 21st. There is no repetition of the ceremony.”
Id. at 1040-41 (emphases added). The rabbi’s only admission was merely that no second, in-
person ceremony occurred, not that solemnization did not occur after the ceremony. See supra at
2, 13-14.
The dissent asserts that our logic “seems to be circular” because we believe, under the
narrow facts of this case, that “the solemnization of the marriage allows the certificate to be
executed while, at the same time, the execution of the certificate solemnizes the marriage.” Post
at 32. We see these two events differently. Solemnization by the celebrants permits the
execution of the marriage certificate by the officiant. The officiant’s execution of the marriage
certificate is not the celebrants’ act of solemnization. It is instead, under the unique facts of this
case, the officiant’s acknowledgement and verification of the celebrants’ contemporaneous
expression of their mutual intent to marry in order to complete solemnization. The dissent
interprets our reasoning to “convey the idea that . . . the parties ‘self-solemnized’ their marriage”
because the solemnization was done in the “absence of the officiant.” Post at 32. We fail to see
how that could be so based on the agreement between the parties and the officiant to solemnize
the marriage in this manner.
14
limitation periods for annulment proceedings, post at 36, and “young lovers” who immediately
betray each other, post at 37-38. This “parade of horribles,” see, e.g., Bristol-Myers Squibb Co.
v. Superior Court, ___ U.S. ___, ___, 137 S. Ct. 1773, 1783 (2017), involves factual
circumstances wholly dissimilar from the case that we now decide. Though we need not, and
should not, offer advisory opinions on such hypotheticals, we can disclaim with confidence the
dissent’s effort to predict them. As we recently emphasized, “all statements of law” in our
judicial opinions “are to be read in connection with the facts of the case to which they are to be
applied.” Funny Guy, LLC v. Lecego, LLC, 293 Va. 135, 160, 795 S.E.2d 887, 900 (2017)
(quoting Ellerson Floral Co. v. Chesapeake & Ohio R.R., 149 Va. 809, 812, 141 S.E. 834, 835
(1928)).
C.
We also acknowledge, but find unpersuasive, the dissent’s hardship argument. “Clearly,”
the dissent asserts, under our holding “there is the definite possibility that other celebrants will
similarly end up believing they were married on one date, when in fact, their official wedding
date is entirely different,” and “the lack of transparency created by the majority’s theory can and
will create innumerable problems in the future.” Post at 37.
The dissent’s remedy for these unspecified “innumerable problems,” post at 37, however,
would be to compound them — as this case so poignantly illustrates. Levick and MacDougall
believed that they were legally married from 2003 to 2013, the period of time before Levick first
came up with his argument to challenge the validity of the marriage during the midst of divorce
litigation. MacDougall still believes that she is married today. The dissent’s reasoning,
however, sets aside over 10 years of their marriage by declaring it void ab initio. A legal
transaction deemed void ab initio can be challenged by any person, in virtually any proceeding,
for any reason precisely because the transaction, in the eyes of the law, does not exist. See Singh
15
v. Mooney, 261 Va. 48, 52, 541 S.E.2d 549, 551 (2001); Toler v. Oakwood Smokeless Coal
Corp., 173 Va. 425, 432, 4 S.E.2d 364, 367 (1939). No Virginia court has ever applied such a
potent remedy to a legal challenge to marriage like the one asserted in this case.
In taking the void-ab-initio path, the dissent overlooks the significant hardships its
reasoning would cause. Creditors of one spouse could seek to strip a couple of the protection of
a tenancy by the entirety through a challenge to the validity of the marriage, even when the
couple is happily married and wants to remain so. See, e.g., Baker v. Speaks, 334 P.3d 1215,
1221-24 (Wyo. 2014). Every legal benefit afforded to lawfully married couples — such as joint-
filing status for federal and state income tax filings; rights under wills, trusts, and other estate-
planning instruments; beneficiary status in retirement and insurance policies; and a variety of
similar benefits that presuppose the existence of a lawful marriage — could be retroactively
challenged and expose both parties to the allegedly invalid marriage to a host of unforeseeable
financial consequences. See generally 1 Homer H. Clark, Jr., The Law of Domestic Relations in
the United States § 3.6, at 246-56 (2d ed. 1987) (discussing the “bewildering variety of
situations” arising from the potential retroactive effects of void marriages on certain rights and
obligations that turn upon the existence of a valid marriage).
The dissent’s void-ab-initio theory would be particularly harsh to MacDougall. After the
parties married, she left a successful career to become an uncompensated chief operating officer
for Levick’s business and, during the course of her marriage, made $380,000 in personal loans to
the business. 17 These purely financial circumstances served as the principal reasons for the
17
Although each of the parties testified that this amount was eventually repaid to
MacDougall a couple of years later, see 2 J.A. at 709, 812, the loans were made to Levick’s
business during a period of financial difficulty in which the business did not have a line of credit
established and could not cover payroll checks, see id. at 810-12; 5 id. at 2140. At the time of
MacDougall’s contribution, therefore, it was accompanied by a realistic possibility that it might
not be repaid.
16
monetary and property-distribution provisions in the marital agreement. The dissent’s view,
however, would treat her multi-year investment over the course of her marriage as irrelevant.
She could not enforce the marital agreement, in which Levick agreed to pay her $150,000 in
spousal support annually, pay for her health insurance premiums, divide equally the proceeds
from the sale of the marital home, and, in the event that Levick sold his company, provide her
with 35% of the proceeds. Nor would she, for that matter, have any other right to seek spousal
support or to request a fair apportionment of marital property because, under the dissent’s view,
she never was Levick’s spouse and never had any marital property.
D.
Finally, we disagree with the dissent’s conclusion that the subtle complexities of this case
boil down to the failure of the rabbi to follow up with the celebrants after receiving the marriage
register in the mail. The dissent contends the rabbi should have “verified the parties’ mutual
present consent to be married at a time when they had a marriage license.” Post at 33. The
dissent acknowledges that, if the rabbi had “take[n] such action” to confirm that “the parties still
mutually and presently consented to be married,” then the dissent “would agree there had been a
solemnization of the marriage after the license had been issued,” post at 33, and thus, the
marriage would be perfectly legal. The dissent does not identify the specific type of “action”
that would satisfy this required verification by the rabbi, post at 33, but the dissent concedes later
in the opinion that “contact with them via telephone” would be sufficient “to verify the
celebrants’ mutual present consent to be married,” which was “not the case here,” post at 34
(citing 1987-1988 Op. Atty. Gen. 316; 1959-1960 Op. Atty. Gen. 219).
This concession serves as an appropriate coda to our analysis. By forwarding the
marriage register to the rabbi as they previously agreed to do, both Levick and MacDougall were
by that act alone reasserting that “the parties still mutually and presently consented to be
17
married.” Post at 33. The rabbi executed the marriage certificate in reliance on this intent.
Neither Levick, MacDougall, nor the rabbi have ever suggested that the parties had a contrary
intent. The dissent characterizes the rabbi’s verification of the parties’ intent as a mere
“assumption” that this Court can and should judicially disregard. Post at 33-34. We fail to see
why we should do so. The rabbi made an assumption, to be sure. But it was the very assumption
that the celebrants agreed with the rabbi at the ceremony that he should make and, indeed, asked
him to make. Neither Levick nor MacDougall have ever argued that the rabbi should not have
made such an assumption. We know of no authority requiring us to declare this marriage void
simply because the rabbi failed to make a follow-up call or to take some other action to verify the
parties’ mutual intent to marry and instead relied upon the parties’ agreed-upon manner of
verification.
IV.
Having stated what we do decide, we must clarify what we do not decide. Following the
traditional doctrine of judicial restraint, we “decide cases ‘on the best and narrowest grounds
available.’” Commonwealth v. White, 293 Va. 411, 419, 799 S.E.2d 494, 498 (2017) (citation
omitted). 18 The best ground for decision in this case is also the narrowest: Nothing in the
governing statutes or our case law renders a marriage void ab initio or voidable merely because
the officiant and celebrants agree in advance to solemnize the marriage in the unusual manner
that occurred in this case. We thus do not address dissimilar situations such as, for example,
those in which the officiant and celebrants make no such solemnization agreement during a
18
See also Board of Supervisors of Loudoun Cty. v. State Corp. Comm’n, 292 Va. 444,
453 n.8, 790 S.E.2d 460, 464 n.8 (2016); Hampton Rds. Bankshares, Inc. v. Harvard, 291 Va.
42, 52, 781 S.E.2d 172, 177 (2016); Wooten v. Bank of Am., N.A., 290 Va. 306, 312 n.6, 777
S.E.2d 848, 851 n.6 (2015); Commonwealth v. Swann, 290 Va. 194, 196, 776 S.E.2d 265, 267
(2015); Alexandria Redev. & Hous. Auth. v. Walker, 290 Va. 150, 156, 772 S.E.2d 297, 300
(2015).
18
wedding ceremony, situations where either celebrant fails to join unequivocally in the agreed-
upon reaffirmation of their solemn and mutual intent to marry, or, for that matter, situations
where either celebrant outright disputes that he or she ever made such an agreement or
reaffirmation. Nor are we faced with a scenario involving a marriage certificate backdated to a
date prior to the issuance of the license.
Our holding also renders moot a myriad of debates in this case on various other subjects,
including:
 whether Code § 20-13, if violated under this sequence of events,
provides a mandatory, as opposed to a mere directory, statutory
requirement; 19
 whether a violation of Code § 20-13, if proven, could be cured by Code
§ 20-31; 20
 whether an allegedly completed marriage, if found to be invalid and
incurable, would be declared void ab initio, as the circuit court held, or
merely voidable, as the Court of Appeals held; 21
19
Compare Offield, 100 Va. at 263, 40 S.E. at 914, with 1 Bishop, supra, § 449, at 192,
id. § 403, at 172, 2 Schouler & Blakemore, supra, § 1191, at 1446, and id. § 1217, at 1461. See
generally Arthur Warren Phelps, Domestic Relations in Virginia § 4-3, at 20 (3d ed. 1977).
20
Levick argues that the literal terms of Code § 20-31 do not cover the defect that he
alleges in this case. See Appellee’s Br. at 25-27. MacDougall counters that remedial statutes are
not intended to be exhaustive. See Appellant’s Br. at 19; see, e.g., Hudson v. Commonwealth,
267 Va. 36, 41, 591 S.E.2d 679, 682 (2004). See generally Phelps, supra note 19, § 4-3, at 20.
21
Compare post at 42-44, with MacDougall, 66 Va. App. at 70-74, 782 S.E.2d at 192-94
(citing Barrons v. United States, 191 F.2d 92, 98-99 (9th Cir. 1951); Hames v. Hames, 316 A.2d
379, 385 (Conn. 1972); Dodrill v. Dodrill, Nos. 03CA578 & 580, 2004 Ohio App. LEXIS 1977,
at *9-11 (Ohio Ct. App. Apr. 28, 2004)). See also Haggin, 53 N.W. at 211; Holder v. State, 29
S.W. 793, 793 (Tex. Crim. App. 1895).
See generally Payne v. Commonwealth, 201 Va. 209, 211, 110 S.E.2d 252, 254 (1959)
(refusing to extend the void-ab-initio concept to underage marriages because “there is no
statutory provision declaring that marriages involving persons under the age of consent are either
void or voidable, and there are no Virginia cases so holding”). That observation in Payne,
standing alone, was enough to convince us that “the [underage] marriage of the parties was
voidable only and not void. The parties are husband and wife unless and until the marriage is
annulled.” Id. (footnote and citations omitted).
19
 whether a party in Levick’s position would be precluded by the
doctrines of equitable estoppel or laches from challenging the validity
of his marriage; 22 and
 whether the marital agreement should be enforced despite a mistaken
assumption by the parties at the time of executing it that their marriage
was lawful. 23
Our silence on these underlying questions of law leaves them open for future debate and, thus,
allows them to be addressed in later cases in which they are ripe for decision.
V.
In sum, Levick has failed to rebut the strong presumption favoring the validity of his
marriage to MacDougall. The Court of Appeals was correct in reversing the circuit court’s
holding that the marriage was void ab initio but was incorrect in concluding that the marriage
was voidable upon the challenge of either party. We thus reverse and remand the case to the
22
See, e.g., Yun v. Yun, 908 S.W.2d 787, 790-91 (Mo. Ct. App. 1995); Johnson v.
Johnson, 41 Tenn. (1 Cold.) 626, 633-34 (1860); cf. Fox v. Fox, 444 S.W.2d 865, 869-71 (Ark.
1969); Spellens v. Spellens, 317 P.2d 613, 615, 619 (Cal. 1957); In re Marriage of Recknor, 187
Cal. Rptr. 887, 892-93 (Cal. Ct. App. 1982); Heuer v. Heuer, 704 A.2d 913, 920-21 (N.J. 1998).
We have not directly addressed the application of equitable defenses in a context similar to this
case, but we have applied equitable estoppel and laches concepts in other areas of Virginia
family law. See, e.g., McNeir v. McNeir, 178 Va. 285, 291, 16 S.E.2d 632, 633-34 (1941); Dry
v. Rice, 147 Va. 331, 339-40, 137 S.E. 473, 475-76 (1927).
23
Compare Burton v. Haden, 108 Va. 51, 56-58, 60 S.E. 736, 738 (1908) (recognizing
the antecedent-right exception to the general rule that prohibits rescission based upon mistakes of
law), with Piedmont Tr. Bank v. Aetna Cas. & Sur. Co., 210 Va. 396, 401-02, 171 S.E.2d 264,
268 (1969) (emphasizing that Burton “involved unusual equitable circumstances” and thereby
placed the contest “outside of the general rule because there was a mistake of a private legal
interest rather than a mistake as to a general rule of law”). Furthermore, we need not address the
family-agreement exception to the antecedent-right exception. See Weade v. Weade, 153 Va.
540, 548, 150 S.E. 238, 240 (1929) (recognizing the disjunctive principle “that a family
agreement entered into on the supposition of a right, or of a doubtful right, although it afterwards
turns out that the right was on the other side, is binding, and the right cannot prevail against the
agreement of the parties” (citation omitted)). See generally John Adams, Jr., The Doctrine of
Equity 189 (1850); Edmund H.T. Snell, The Principles of Equity 509 (Archibald Brown ed., 12th
ed. 1898); 1 Joseph Story, Commentaries on Equity Jurisprudence § 129, at 148-49 (6th ed.
1853).
20
Court of Appeals with instructions to remand the case to circuit court for further proceedings
consistent with this opinion.
Reversed and remanded.
JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE MIMS join, dissenting.
Prior to today, the requirements for a valid marriage in the Commonwealth of Virginia
were clear and straightforward. The General Assembly requires that a marriage be conducted
under a license and solemnized. Code § 20-13. Solemnization must occur after a marriage
license is obtained for the marriage. Id.; Code § 20-14.1. According to the majority, however,
the strong presumption in favor of marriage allows celebrants to disregard these statutory
requirements. As such, celebrants lacking a marriage license may now enter into a
“solemnization agreement” that delays the effect of their nuptials until they acquire the legally-
required license, at which point the execution of the marriage certificate, without more, produces
a valid marriage.
I acknowledge the strong presumption in favor of marriage and respect the majority’s
attempt to honor that judicially-created presumption. However, first and foremost, we must
uphold the statutes passed by the General Assembly. A desire to uphold a “robust presumption”
cannot overcome our obligation to adhere to the clear language of marriage statutes passed by
our legislature. As we have long recognized,
the duty of this court is not to make law, but to construe it; not to
wrest its letter from its plain meaning in order to conform to what
is conceived to be its spirit, in order to subserve and promote some
principle of justice and equality which it is claimed the letter of the
law has violated.
Saville v. Virginia Ry. & Power Co., 114 Va. 444, 452-53, 76 S.E. 954, 957 (1913).
21
Furthermore, I find no evidence that the majority’s theory has ever been adopted by any
other court in this country. Indeed, there is no precedent for sanctioning a solemnization
agreement that requires a marriage be held in limbo until it is validated by the acquisition of a
marriage license at some undetermined point in the future. Such an approach appears to be
directly at odds with the leading authority on the subject of marriage, which this Court has turned
to on numerous occasions. 1 “The rule is, that, as marriage cannot be in abeyance, if the thing
stipulated for is meant by the parties to delay the nuptials, however briefly, there is no marriage.”
1 Joel Prentiss Bishop, New Commentaries on Marriage, Divorce, and Separation § 347, at 144
(1891).
In determining whether the marriage in the present case was solemnized, the majority
focuses on the parties’ subjective intent, as evidenced by the parties’ alleged “solemnization
agreement.” Our marital statutes are not concerned with the subjective agreements individuals
make in an attempt to solemnize a marriage; our marital statutes are objective in nature, looking
to whether there was, in fact, an act of solemnization that occurred after a license was obtained,
as required by statute. Here, there was no such objective act of solemnization. It is undisputed
that the religious ceremony certified in the marriage certificate to have taken place on January
21, 2003 did not occur on that date. Indeed, the majority cannot point to any evidence that
demonstrates that the parties’ marriage was solemnized by an officiant after the marriage license
was obtained on January 6, 2003.
The majority is generous in referring to the parties’ actions as a “solemnization
agreement.” In reality, the parties merely decided to go forth with a wedding without the license
1
As the Court of Appeals observed, there are at least 22 prior occasions where we “cite
Bishop’s treatise as authoritative.” MacDougall, 66 Va. App. at 71 n.7, 782 S.E.2d at 192 n.7.
22
required under Virginia law because the officiant agreed to sign the license whenever the parties
got around to mailing one to him. Thus, what the majority calls a “solemnization agreement”
was essentially a decision by the parties to circumvent the clear requirements of our marital
statutes.
Moreover, rather than harmonizing the relevant marriage statutes, the majority’s theory
discordantly approves a privately designed solemnization agreement that admittedly violated
numerous marriage statutes and resulted in the filing of a marriage certificate which contains
demonstrably incorrect information. 2 As no judicially-created theory can validate a marriage
that does not satisfy the requirements mandated by the General Assembly, I respectfully dissent.
I.
The majority’s decision is premised upon the strong presumption of marriage based on
matrimonial cohabitation. Eldred v. Eldred, 97 Va. 606, 625, 34 S.E. 477, 484 (1899) (“The
presumption of marriage from cohabitation apparently matrimonial is one of the strongest
presumptions known to the law.”). I do not dispute the existence of this presumption, nor do I
question that it serves a laudable purpose. However, given the mandatory nature of our marital
statutes, any determination as to the existence of a valid marriage begins and ends, not with a
presumption, but with an analysis of whether the plain language of our marital statutes has been
followed. The majority insists that such an approach is too simple, as it leaves several
2
Specifically, the marriage certificate indicates that the marriage was solemnized by a
religious ceremony that took place in McLean, Virginia on January 21, 2003. The record,
however, demonstrates that neither Levick nor the rabbi were in McLean, Virginia on January
21, 2003. Additionally, the rabbi testified that no ceremony, religious or otherwise took place on
January 21, 2003. A copy of the relevant marriage license and marriage certificate are attached
for reference.
23
unanswered questions. 3 “In the law, as in life, the simplest explanation is sometimes the best
one.” Loan Syndications & Trading Ass’n v. SEC, 818 F.3d 716, 718 (D.C. Cir. 2016). Such an
approach seems particularly apropos here, given that we have long recognized that “[o]ur marital
laws are plain and simple, not difficult to understand by the humblest citizen.” Eldred, 97 Va. at
629, 34 S.E. at 485. Thus, while it is true that “[t]he public policy of Virginia . . . has been to
uphold the validity of the marriage status as for the best interest of society, except where
marriage is prohibited between certain persons,” Needam v. Needam, 183 Va. 681,686, 33 S.E.2d
288, 290 (1945), such public policy concerns cannot override the undisputed evidence that the
parties in the present case failed to meet the statutory requirements necessary to create a valid
marriage.
Marriage “has always been subject to the control of the legislature.” Maynard v. Hill,
125 U.S. 190, 205 (1888). Indeed, as this Court observed long ago:
Marriage is a contract sui generis, and differing in some respects
from all other contracts; so that the rules of law which are
applicable in expounding and enforcing other contracts may not
apply to this. The contract of marriage is the most important of all
human transactions; it is the very basis of the whole fabric of
civilized society. The status of marriage is juris gentium, and the
foundation of it, like that of all other contracts, rests on the consent
of the parties; but it differs from other contracts in this, that the
rights, obligations or duties arising from it are not left entirely to
be regulated by the agreement of the parties, but are to a certain
extent matters of municipal regulation over which the parties have
no control by any declaration of their will.
3
As I explain below, the “conceptually complex yet necessary legal questions” which
appear to vex the majority are easily answered by following the plain language of the marriage
statutes passed by the General Assembly. Ante at 5. There are no essential attributes of
solemnization. It does not necessarily end at the last moment of a marriage ceremony.
Solemnization and ceremony are not exact synonyms. A ceremony is simply evidence of a
solemnization. As discussed below, a solemnization occurs when the celebrants demonstrate to
an officiant that they mutually and presently consent to be married.
24
Herring v. Wickham, 70 Va. (29 Gratt.) 628, 635 (1878) (citation and internal quotation marks
omitted).
In Virginia, any marriage entered into must, at a minimum, satisfy the statutory
requirements established by the legislature. Moreover, adherence to the requirements of our
marital statutes is mandatory, such that “no marriage or attempted marriage, if it took place in
this State, can be held valid here, unless it has been shown to have been under a license, and
solemnized according to our statutes.” Offield v. Davis, 100 Va. 250, 263, 40 S.E. 910, 914
(1902). As a result, our marital statutes “require strict compliance” and, therefore, “Virginia
does not follow the majority view found in most states, that marriage requirements are directory
and require only substantial compliance to constitute a valid marriage.” Peter N. Swisher,
Lawrence D. Diehl, & James R. Cottrell, Family Law: Theory, Practice, and Forms § 1:2 at 8
(2017 ed.). (emphasis in original). 4
The Court explained its rationale for requiring such strict compliance, stating:
“It is true the Legislature may expressly provide that all marriages
not entered into in the ways pointed out by the statute, and not
within the exceptions provided for, should be held invalid, but this
affords no reason for not giving effect to the clear intention
otherwise expressed in the legislation existing, because the
Legislature has not declared all others void. Our statutes in
relation hereto would, if upon any other subject, be held mandatory
and prohibitive, and we see no reason why the same effect should
not be given here, for the law could as well say that all attempted
marriages should be valid, notwithstanding the statutory requisites
were not complied with. However this question is decided, it may
4
Although Virginia may not follow the majority view on this issue, we are far from the
only state that requires mandatory compliance with our marital statutes in order to form a valid
marriage. See, e.g., Pinkhasov v. Petocz, 331 S.W.3d 285 (Ky. 2011); Roe v. Ludtke Trucking,
732 P.2d 1021, 1023 (Wash. Ct. App. 1987) (“In Washington, a marriage can be created only by
compliance with the statutory provisions.”); Kisla v. Kisla, 19 S.E.2d 609, 610-11 (W. Va. 1942)
(holding that West Virginia’s marital statute is mandatory in its requirement that marriages must
be solemnized under a license).
25
result in hardship in some cases, but we think the lesser injury will
come from an adherence to the statutory requisites than otherwise.”
Offield, 100 Va. at 261, 40 S.E. at 914 (quoting In re Estate of McLaughlin, 30 P. 651, 658-59
(Wash. 1892)).
Code § 20-13 states that “[e]very marriage in this Commonwealth shall be under a license
and solemnized in the manner herein provided.” The plain language of the statute establishes
that a valid marriage has two requirements: a license and a solemnization.
Code § 20-14 provides that every license for a marriage shall be issued by the clerk or
deputy clerk of a circuit court. Code § 20-14.1 states:
Every marriage license issued under § 20-14 shall constitute
authority for a period of only sixty days from the date of issuance
for the solemnization of a marriage of the licensees. Whenever
such sixty-day period shall have elapsed without the solemnization
of a marriage of the licensees, the license shall expire.
(Emphasis added.)
By its plain language, Code § 20-14.1 establishes that a marriage license grants an
officiant the authority to solemnize a marriage “for a period of only sixty days from the date of
issuance.” (Emphasis added.) As the marriage license grants an officiant the authority to
solemnize a marriage, it necessarily must be issued before the solemnization can take place. 5
Indeed, logic dictates that the authorization to perform an act must precede the act itself. This
Court has explicitly recognized this point, stating that a license “confer[s] a right to do something
which otherwise one would not have the right to do; it is a prerequisite to the right to . . . do
certain acts.” Commonwealth v. Shell Oil Co., 210 Va. 163, 166, 169 S.E.2d 434, 437 (1969).
5
The marriage license issued in the present case explicitly stated that any person licensed
to perform marriage in Virginia was “hereby authorized to join the above named persons [i.e.,
Levick and MacDougall] in marriage under procedures outlined in the statutes of the
Commonwealth of Virginia.”
26
As the Court of Appeals correctly analogized, if “one cannot [legally] drive, hunt, or practice law
or medicine before acquiring the necessary license,” then “[b]y that same token, one cannot
[legally] marry before acquiring a marriage license.” MacDougall, 66 Va. App. at 64, 782
S.E.2d at 189. 6 See also 2009 Op. Atty. Gen. 50 (opining that a court may not affirm marriages
that were performed in the absence of a marriage license or order the retrospective issuance of a
marriage license).
Any question as to the intent of the legislature regarding whether a marriage can be
solemnized prior to the issuance of a marriage license is answered by the General Assembly’s
passage of what is now Code § 20-28. Since 1919, the General Assembly has made the act of
solemnizing a marriage without a lawful license a criminal offense. Code § 20-28. 7 The Court
of Appeals correctly stated the obvious: “By attaching a criminal penalty to the performance of a
6
Along these same lines, the acquisition of the necessary license does not operate to
retroactively legitimize the actions taken prior to such acquisition. Thus, any ceremony that
occurred prior to the date that the license was acquired cannot serve as a valid basis for meeting
the solemnization requirement under Code § 20-13.
7
Code § 20-28 states:
If any person knowingly perform the ceremony of marriage
without lawful license, or officiate in celebrating the rites of
marriage without being authorized by law to do so, he shall be
confined in jail not exceeding one year, and fined not exceeding
$500.
By its plain language, Code § 20-28 criminalizes two separate and distinct acts:
solemnizing an unlicensed marriage and officiating a wedding without first qualifying as an
officiant. Cf. Cramer v. Commonwealth, 214 Va. 561, 565, 202 S.E.2d 911, 914 (1974) (per
curiam) (recognizing that the legislature has an interest in ensuring that a marriage be
memorialized by an individual meeting certain qualifications). Although the General Assembly
has enacted legislation explicitly validating marriages solemnized under a license by an
unqualified officiant, see Code § 20-31, it has taken no such action with regard to marriages
solemnized without a license. Given our strict adherence to marital statutes, we must interpret
the General Assembly’s silence on this issue to mean that it did not intend for marriages
solemnized without a license to be considered valid.
27
ceremony of marriage without a license, the General Assembly clarified its intention that a
lawful marriage [requires] solemnization after a license has been obtained.” MacDougall, 66
Va. App. at 65, 782 S.E.2d at 189 (citing Offield, 100 Va. at 254, 40 S.E. at 911) (emphasis
added). Thus, when Code § 20-13 is read in context with the remainder of Article 20, it leads to
only one logical conclusion: a marriage license must be issued before the solemnization can
occur. 8
Turning to the solemnization requirement, I agree with the majority that neither this
Court nor the General Assembly have defined the term “solemnization.” In determining the
meaning of the term, as used in Code § 20-13, “[i]t is our duty to take the words which the
legislature has seen fit to employ and give to them their usual and ordinary signification.”
Saville, 114 Va. at 453, 76 S.E. at 957. “Solemnization” is defined as “an act of solemnizing or
the condition of being solemnized.” Webster’s Third New International Dictionary 2168
(1993). 9 “Solemnize,” in turn, means “to hold, conduct, observe, or honor with due formal
ceremony or solemn notice” and “to perform with pomp or ceremony or according to legal
forms.” Id. Similarly, Black’s Law Dictionary defines “solemnize” as meaning “[t]o enter into
(a marriage, contract, etc.) by a formal act, [usually] before witnesses.” Black’s Law Dictionary
1607 (10th ed. 2014). 10
8
The majority does not appear to dispute this fact. Rather, it takes the position that the
acquisition of the license may be part of the solemnization, which need only conclude after the
license has been acquired. For reasons stated below, I cannot agree.
9
Black Law Dictionary defines “solemnization” as “[t]he performance of a formal
ceremony (such as a marriage ceremony) before witnesses, as distinguished from a clandestine
ceremony.” Black’s Law Dictionary 1607 (10th ed. 2014). Virginia has no requirement that a
marriage involve a formal ceremony or occur before witnesses, but it does require a
solemnization event which must be performed by an officiant. See, e.g., Code § 32.1-267.
10
It is telling that the majority fails to offer any definition of “solemnization” or
“solemnize.”
28
As correctly noted by the majority, the Commonwealth has no interest in the particular
ceremony or ritual that is performed to solemnize a marriage, so long as a solemnization occurs.
See Cramer v. Commonwealth, 214 Va. 561, 565, 202 S.E.2d 911, 914 (1974) (per curiam)
(“The state has no official interest in the place where a marriage occurs, or in the ceremony or
ritual which surrounds the act.”); Alexander v. Kuykendall, 192 Va. 8, 11, 63 S.E.2d 746, 748
(1951) (“[N]o particular form of marriage ceremony is required by civil law.”). Thus, while a
marriage ceremony is probably the most common manner in which a marriage is solemnized, it
is not the only manner of doing so.
The import of the solemnization requirement is not in how it is accomplished; it is in
what it accomplishes. The most important aspect of the solemnization requirement is its
underlying purpose: to ensure that both celebrants presently consent to be married. A proper
solemnization requires that the celebrants represent to the officiant their mutual, sincere present
consent to be married. “No form of solemnizing words being necessary, it is sufficient for the
proper person, as a minister or justice of the peace, to be present, and take cognizance of the
mutual engagement of the parties to assume the marital relation.” 1 Bishop, supra, § 439, at 189.
My disagreement with the majority stems from the fact that the majority’s solemnization
agreement theory undermines the entire purpose of the solemnization requirement because it
does not require verification of the celebrants’ present consent to be married. Indeed, the receipt
of a marriage register in the mail, without more, tells an officiant nothing about celebrants’
present state of mind. The majority’s theory would allow a marriage to be solemnized based
29
solely on the fact that the celebrants had previously consented to be married. 11 Clearly this is
incorrect.
“As, in the nature of the marriage status, it cannot be in abeyance, the consent must be to
present marriage, not depending on a future condition, or to be for an instant postponed.” 1
Bishop, supra, § 238, at 103 (emphasis added). Indeed,
The entire doctrine relating to this subject is, that, to render
competent parties husband and wife, they must . . . mutually agree
in the present tense to be such, - no time being contemplated to
elapse before the assumption of the status.
Id. § 299, at 124 (emphasis added).
To be clear, it is not my position that every wedding ceremony that precedes the
acquisition of a license results in a void marriage. Far from it. My understanding of the law is
that a solemnization occurs when the celebrants presently demonstrate to an officiant their
mutual consent to be married. As long as this consent to be married is presently expressed to
and, at the same time, received by the officiant when the celebrants possess a marriage license, a
valid marriage is created. 12 Stated another way, there must be a nexus where the celebrants
possess the marriage license (i.e., the license requirement) and the officiant is able to verify their
11
It is unclear where the majority’s disagreement with this statement lies. According to
the majority, on January 6, 2003, the parties “reasserted their mutual, unconditional, unqualified,
present intent to be married by forwarding the marriage register to the rabbi for the purpose of
him signing the marriage certificate pursuant to their agreement.” Ante at 14. Thus, when the
rabbi received the marriage register on January 21, 2003, he only became aware of the parties’
intent to be married on the date that the parties sent it: January 6, 2003. In other words, on
January 21, 2003, the rabbi could only verify and authenticate their past intent to be married, not
their present intent.
12
The majority claims that “[t]his is what happened in this case,” yet the evidence
unequivocally demonstrates that this is most certainly not what happened in this case. Ante at
12. Here, the rabbi did not receive the parties’ present expression of intent at the same time that
the parties expressed it; he received it 15 days later.
30
mutual present consent to be married (i.e., the solemnization requirement). This, in my opinion,
is what Code § 20-13 requires. 13
No such nexus existed in this case. The record demonstrates that the rabbi had no contact
with the parties between December 21, 2002, when he conducted the wedding ceremony and
January 21, 2003, when he executed the wedding certificate. Therefore, it cannot be said that he
knew whether the parties mutually and presently consented to be married at any point after they
obtained the marriage license, including on the date that he executed the marriage certificate. 14
It is telling that, according to the majority, the solemnization is complete and the
marriage legally began on the date of the execution of the marriage certificate. Ante at 6.
However, the execution of the marriage certificate is not part of the solemnization; rather, the
execution of the marriage certificate is the means through which an officiant certifies that the
marriage has been solemnized. See Code § 32.1-267(C) (requiring that the officiant “certify to
the facts of the marriage” and file the record with the officer who issued the marriage license);
Davidson, 2009 Va. App. LEXIS 313, at *4-5 (holding that the execution of the marriage
certificate “presupposes a ‘marriage ceremony’ solemnizing the union”). Indeed, Code § 32.1-
267(C) clearly establishes that the execution of the marriage certificate does not mark the
13
Such an approach is not novel. The Court of Appeals has recognized this concept since
at least 2009, when it held that “whatever formalities the [solemnization] requires, at the very
least it requires the attendance of both the prospective bride and groom.” Davidson v. Davidson,
No. 2356-08-3, 2009 Va. App. LEXIS 313, at *5 (July 14, 2009) (unpublished). There can be
little doubt that the Court of Appeals’ holding is premised on the notion that the attendance of
both the bride and groom is required to express their present consent to be married.
14
Given that both parties must be present to apply for a marriage license, the most that
the rabbi could have inferred from receiving the marriage license in the mail was that the parties
mutual consent to be married existed on January 6, 2003, the date they acquired the wedding
license. Again, this amounts to evidence of the parties’ past consent to be married; it cannot,
under any definition of the term, be considered evidence of the parties’ present consent to be
married.
31
beginning of the marriage, as the marriage certificate may be executed up to five days after the
ceremony solemnizing the marriage. 15 In relying on the perfunctory act of executing the
certificate as part of the solemnization of the marriage, the majority’s logic seems to be circular:
the solemnization of the marriage allows the certificate to be executed while, at the same time,
the execution of the certificate solemnizes the marriage. Ante at 14.
In its attempt to rebut my observation that its logic is circular, the majority succeeds in
further muddying the waters. The majority responds by stating that “[s]olemnization by the
celebrants permits the execution of the marriage certificate by the officiant” and the rabbi’s
“execution of the marriage certificate is not the celebrants’ act of solemnization.” Ante at 14
n.16 (emphasis added). While both of these statements are accurate standing alone, they present
an incomplete picture of what is necessary for a solemnization. Indeed, these statements could
be read to convey the idea that, by obtaining a marriage license and forwarding it to the rabbi, the
parties “self-solemnized” their marriage.
A marriage, however, cannot be self-solemnized. A self-solemnization necessarily
occurs in the absence of an officiant. Obviously an officiant who was absent from the
solemnization could not witness the celebrants’ present, mutual consent to be married. At best,
the officiant could only learn of the celebrants’ expression of consent at some later time, i.e.,
their past consent to be married. Our marital statutes require that an officiant take cognizance of
the celebrants’ present mutual consent to be married. Accordingly, a self-solemnization is
insufficient to solemnize a marriage.
15
The fact that Code § 32.1-267(C) provides for the incapacitation or death of the
officiant after the solemnization is complete but before the marriage certificate is executed
similarly establishes that the execution of the marriage certificate is ministerial and not, as the
majority insists, the final step in the solemnization.
32
Along these same lines, I find it dispositive that, when asked whether the parties had,
after December 21, 2002, “exchanged vows of marriage or otherwise solemnized [their] marriage
in [his] presence,” the rabbi responded:
No. We didn’t repeat any part of the ceremony. So we did the
ceremony just on December 21st and I filled out the paperwork as
soon as I received it on January 21st. There is no repetition of
ceremony.
He further explained that, when he received the wedding certificate in the mail, he executed it
because he “assumed they hadn’t changed their minds.” (Emphasis added.) In other words, the
rabbi admitted that he did not solemnize the marriage after December 21, 2003; he just signed
the “paperwork” based on an assumption.
Had the rabbi confirmed on January 21, 2003 that the parties still mutually and presently
consented to be married, then I would agree there had been a solemnization of the marriage after
the license had been issued. The required nexus would exist as the rabbi would have verified the
parties’ mutual present consent to be married at a time when they had a marriage license.
However, the rabbi failed to take such action. As a result, we are left with a marriage that was
not solemnized by an officiant.
This assumption demonstrates another flaw in the majority opinion, one that it never
directly addresses: there is no evidence that the rabbi knew that the parties mutually and
presently consented to be married on the day he signed the marriage certificate. Rather than
address this flaw, the majority appears to take the position that the rabbi’s failure to verify the
parties’ mutual present consent can be simply overlooked by equating past consent with present
consent. For example, the majority takes the position that, by obtaining the marriage register and
sending it to the rabbi, the parties “repeated and reaffirmed to the [rabbi] their joint, unqualified
intent to marry.” Ante at 13. Assuming this is true, then, at best, this merely indicates that, on
33
January 6, 2003, the parties repeated and reaffirmed their intent to be married outside of the
presence of the rabbi. It is undisputed that the rabbi did not receive the marriage register until 15
days later. Thus, on January 21, 2003, when the rabbi received the marriage register, he had
evidence of the parties’ past intent and mutual consent to be married, not their present intent and
mutual consent to be married. By any interpretation, a 15-day lapse renders the January 6, 2003
expression of the parties’ intent a past expression of intent. It is certainly not a
“contemporaneous expression” as the majority asserts. Ante at 14 n.16. Thus, it cannot be said
that the marriage was solemnized by the rabbi after the license was obtained.
The import of the requirement that an officiant be able to verify that the celebrants
possess a mutual present consent to be married is at the very heart of the two Attorney General
opinions upon which the majority relies. Notably, the facts underlying each Attorney General
opinion demonstrate that, although one or both celebrants were not physically present with the
officiant at the time of solemnization, the officiant was in contact with them via telephone. See
1987-1988 Op. Atty. Gen. 316; 1959-1960 Op. Atty. Gen. 219. Thus, in both scenarios
discussed in these opinions, the officiant was able to solemnize the marriage because the
officiant was able to verify the celebrants’ mutual present consent to be married. Such was not
the case here. 16
I do not dispute that the celebrants and the officiant had an agreement to go forward with
the marriage ceremony without a license and that the officiant agreed to sign a marriage license
16
Both of these Attorney General opinions are premised on the fact that, although both
celebrants were not in the same physical location as the officiant or each other, they had acquired
a marriage license and the officiant was in direct contact with both celebrants when they
expressed their present mutual consent to marry. It is this nexus that allows for the creation of a
valid marriage. The majority’s interpretation of these Attorney General opinions overlooks the
fact that the officiant was in direct contact with the celebrants when the marriage was
solemnized.
34
if it was obtained and mailed to him. However, it is inescapable that execution of such a
“solemnization agreement” could not be accomplished without violating numerous marital
statutes and filing a marriage certificate that contained demonstrably false information. The fact
that the private “solemnization agreement” could not be effectuated without violating statutes
indicates that such an approach was neither contemplated nor approved by the General
Assembly.
Additionally, I cannot overlook the fact that, under the majority’s solemnization
agreement theory, it is unclear when, exactly, solemnization occurs. Is it December 21, 2002,
the day the solemnization agreement was purportedly entered into? Is it January 6, 2003, the day
the parties acquired the license and mailed it to the rabbi? Or is it January 21, 2003, the day the
solemnization agreement was purportedly concluded? The necessary implication created by the
majority’s theory is that solemnization is a process. This indicates to me that, under the
majority’s solemnization agreement theory, there is no specific date of solemnization, as the
“solemnization” encompasses the entire time from when the solemnization agreement is entered
through its conclusion.
This Court has repeatedly admonished that similar statutes “should be so construed as to
harmonize the general tenor or purport of the system and make the scheme consistent in all its
parts and uniform in its operation.” Prillaman v. Commonwealth, 199 Va. 401, 405, 100 S.E.2d
4, 7 (1957). With regard to marriage, a number of statutes indicate that the General Assembly
clearly contemplated that the solemnization of a marriage would occur at a specific point in time.
Notably, several of our marital statutes specifically reference the time or date of solemnization.
For example, Code § 20-45.1(B) provides that marriages are voidable if either of the parties
“lacked capacity to consent to the marriage at the time the marriage was solemnized.”
(Emphasis added.) Code § 20-45.1(C) similarly renders a marriage voidable if both of the
35
parties are not either over the age of 18 or emancipated “at the time of the solemnization.” See
also Code § 20-90(B) (permitting “the party who was under the age of 18 at the time of the
solemnization” to petition to have the marriage affirmed) (emphasis added). The most
problematic statute, in my opinion, is Code § 20-89.1(B), which allows for the annulment of a
marriage “where the husband, without knowledge of the wife, had fathered a child born to a
woman other than the wife within 10 months after the date of the solemnization of the
marriage.” (Emphasis added.) It is thus unclear how, or if, these statutes could function under
the majority’s nebulous solemnization agreement theory, as there is no specific date of
solemnization.
Moreover, as the majority notes, the “‘principal objects’ of statutes similar to Code §20-
13, which require a license and solemnization for a valid marriage, ‘are to insure publicity and
preserve evidence of marriages.’” Ante at 8 (quoting Joseph R. Long, A Treatise on the Law of
Domestic Relations § 60, at 99 (2d ed. 1913)). However, these “principal objects” of Code § 20-
13 are clearly frustrated by the solemnization agreement theory adopted by the majority. In fact,
the majority’s theory does just the opposite of insuring publicity and preserving evidence of
marriage, because the solemnization agreement approved by the majority allows an indefinite
secret period during which an apparent marriage is in legal limbo, known only to the celebrants
and the officiant. Furthermore, under a private solemnization agreement, a marriage will only
come into being when and if the officiant receives the marriage register and signs the marriage
certificate. Thus, the majority’s theory transforms the legislature’s statutory marriage scheme,
which is meant to insure publicity of when the marriage took place, into a scheme in which the
actual date of marriage is determined by the efficiency of the postal service and the diligence of
36
the officiant and ultimately results in the marriage being solemnized outside the presence of the
celebrants, at some indeterminate point in time. 17
Indeed, in the present case, the parties had no idea when they were actually married
because they were not required to be present at the time the marriage was solemnized. Clearly,
there is the definite possibility that other celebrants will similarly end up believing they were
married on one date, when in fact, their official wedding date is entirely different. As the present
case demonstrates, the lack of transparency created by the majority’s theory can and will create
innumerable problems in the future.
The legislature’s intent to prevent such a situation is evidenced by Code § 32.1-267(C),
which requires a marriage officiant to file a marriage certificate within 5 days of the
solemnization ceremony he officiated. Unfortunately, Code § 32.1-267(C) is yet another
example of a marriage statute violated by the solemnization agreement theory approved by the
majority, as such an approach precludes the need for a solemnization ceremony.
Along these same lines, the majority’s theory also has the significant potential for abuse.
For example, two young lovers, who only met the day before, express their everlasting love for
each other to an officiant and express their desire to be married. The officiant informs them that
they need only acquire a marriage license, send it to him, and then they will be married. The
next day, after acquiring the marriage license, the couple has their first (and only) fight. They
17
It is further worth noting other, less obvious collateral effects of the majority’s holding.
This Court has long recognized the important function served by officiants. See Cramer, 214
Va. at 565, 202 S.E.2d at 914 (recognizing that the General Assembly entrusted the clergy with
the responsibility of solemnizing marriages because marital contracts must be “memorialized in
writing and by a person of responsibility and integrity and by one possessed of some educational
qualifications.”). However, by holding that the mere mailing of a marriage register to an
officiant is sufficient to solemnize a marriage, the majority has relegated the role of an officiant
from a position of responsibility to a ministerial role. Indeed, what purpose does an officiant
serve under the majority’s theory, other than to sign paperwork when it is delivered to him or
her?
37
break up and vow to never speak to each other again. Fifteen days later, for whatever reason,
one of the former lovers mails the marriage license to the officiant. Upon receiving the marriage
license the officiant assumes that nothing in the relationship has changed, as it has been less than
a month since the young lovers were before him professing their undying love for each other and
their desire to marry. The officiant executes the marriage certificate and sends it back to the
court clerk. According to the majority, the former lovers are now married. The majority’s
criteria have all been met: the former lovers had expressed their intent to marry to the officiant,
they followed the officiant’s “instructions” regarding the manner in which the wedding would be
solemnized by acquiring a marriage license, and the officiant executed that license. 18
Although the lack of any authority supporting the concept of a solemnization agreement
as a substitute for the solemnization of a marriage at a specific point in time should be sufficient
grounds to affirm the decision of the lower courts on this matter, I feel it is also important to
point out that the facts of the present case do not support the majority’s characterization that the
parties intentionally entered into such an agreement. According to the rabbi, upon the discovery
that the parties did not have a marriage license, he briefly met with the parties and “probably said
something to the effect of . . . whenever you go get [a marriage license] and get it to me, I will
sign it.” Levick testified that the rabbi nonchalantly said: “Let’s just carry on with the ceremony,
and get it to me later and I’ll sign it.” Based on his conversation with the rabbi, Levick thought
that he and MacDougall were married at the completion of the ceremony and the marriage
18
While it is true that such a marriage could easily be annulled, that presumes the former
lovers being aware of their marital status. Notably, the Code does not require that a copy of the
marriage certificate be sent to the celebrants. See Code § 20-16. Thus, regardless of the ease
with which the marriage may be annulled, the fact remains that until that annulment, any
subsequent marriage by either of the former lovers would be bigamous and, therefore, void ab
initio. See Code § 20-43. See also Toler v. Oakwood Smokeless Coal Corp., 173 Va. 425, 435, 4
S.E.2d 364, 368 (1939) (“There is no qualification affecting the absolute nullity, in Virginia, of a
bigamous contract.”).
38
license was “just paperwork” or “bureaucratic activity.” MacDougall similarly indicated that the
rabbi was rather nonchalant about the lack of a license. She testified that, although the rabbi
initially told her to “[g]et the license to me just as soon as you can,” he subsequently clarified his
statement, telling her that “[i]t’s not a code blue or whatever. Don’t worry about it.”
Taken as a whole, the testimony establishes that the parties and the rabbi had a brief
discussion about the lack of a marriage license and the process of rectifying that mistake. The
parties simply agreed that they needed to get a marriage license and the rabbi needed to sign it at
some point in the future, but there was no rush. There is no indication that either the rabbi or the
parties had any idea they were still solemnizing the marriage. Indeed, there was absolutely no
discussion of solemnization at all. Thus, the record, at best, demonstrates that the parties and the
rabbi thought the marriage was complete aside from the ministerial task of acquiring and
completing the license. It was, by their own testimony, “just paperwork” and nothing to worry
about. Therefore, even applying the majority’s flawed solemnization agreement theory to the
present case, the decision of the Court of Appeals can be affirmed on the additional ground that
there is sufficient evidence to support a factual finding that no solemnization agreement was
actually entered into by the parties in this instance. Accordingly, I would affirm the Court of
Appeals’ determination that the parties’ marriage was not solemnized under a license.
II.
Having determined that the parties have failed to meet the statutory requirements, I will
briefly address the remaining arguments raised by MacDougall with regard to the nature of the
parties’ marriage. Turning first to MacDougall’s argument that the defects in the parties’
marriage may be cured by Code § 20-31, I agree with the Court of Appeals’ holding on this
matter. Notably, the lack of solemnization after the marriage license was acquired is not a mere
39
procedural defect that may be cured by Code § 20-31. 19 By its plain language Code § 20-31 only
validates marriages “solemnized under a license.” As I do not believe a solemnization occurred
under license in the present case, the statute has no application here.
Even assuming the prerequisites for the application of the statute were met, none of the
defects that can be cured by Code § 20-31 are present in this case. The record indicates that the
rabbi was properly qualified as an officiant in Virginia. Therefore, he did not lack authority to
perform weddings in Virginia. Similarly, the statute allows for the correction of defects in the
marriage license. However, the defect that exists in the present case is not in the marriage
license, it is in the marriage certificate. Specifically, the rabbi’s certification of a solemnization
that never occurred. Code § 20-31 cannot operate to cure the improper certification of a
marriage that never occurred because it only cures defects in the marriage license, not the
marriage certificate. Thus, as the Court of Appeals adroitly stated, “[t]he medicine in Code § 20-
31’s cabinet is not formulated so as to spring to life a marriage that, in the eyes of Virginia law,
never was.” MacDougall, 66 Va. App. at 70, 782 S.E.2d at 192.
I would also reject MacDougall’s equitable estoppel argument. Notably, such an
equitable estoppel argument raises a number of significant public policy questions. Where, as
here, the parties have admittedly failed to meet the requirements of Code § 20-13, the application
19
Code § 20-31 states:
No marriage solemnized under a license issued in this
Commonwealth by any person professing to be authorized to
solemnize the same shall be deemed or adjudged to be void, nor
shall the validity thereof be in any way affected on account of any
want of authority in such person, or any defect, omission or
imperfection in such license, if the marriage be in all other respects
lawful, and be consummated with a full belief on the part of the
persons so married, or either of them, that they have been lawfully
joined in marriage.
40
of equitable defenses would effectively render those same requirements meaningless. Such a
radical departure from established law is a matter for the legislature, not the judiciary. As the
Court of Appeals explained,
[t]he legislature is the rightful branch of government to set
Virginia’s public policy with regard to an institution so
foundational, and of such paramount importance to society, as
marriage. This area of Virginia law has been comprehensively
regulated since 1628, if not earlier, and it is for the General
Assembly to consider any modification to the statutory formalities
for contracting lawful marriage.
MacDougall, 66 Va. App at 78-79, 782 S.E.2d at 196.
With regard to the question of whether equity bars Levick from challenging the validity
of the marriage, our jurisprudence indicates that no such bar exists.
[W]hatever may be the rule applicable to other contracts, public
policy forbids that a complainant should be barred from bringing a
suit to declare null a marriage contract which never had any valid
existence. The State is interested to preserve the integrity of the
marriage tie, and to enforce its laws against prohibited marriages,
and general rules applicable to private contracts should not be
permitted to thwart the public policy of the State established for
the protection of society. If the marriage in controversy was void
from its inception, the public is interested that it should be so
declared . . .
Heflinger v. Heflinger, 136 Va. 289, 301-02, 118 S.E. 316, 319-20 (1923).
MacDougall attempts to distinguish Heflinger from the present case by noting that the
marriage in Heflinger was bigamous and, therefore, statutorily void ab initio. MacDougall’s
argument, however, is misplaced. Our holding in Heflinger is based on the notion that public
policy dictates that a void marriage should be declared as such; the reason why the marriage is
invalidated does not change this underlying public policy. 20 Accordingly, I would affirm the
20
MacDougall’s reliance on McNeir v. McNeir, 178 Va. 285, 16 S.E.2d 632 (1941) and
Dry v. Rice, 147 Va. 331, 137 S.E. 473 (1927), is similarly misplaced. Neither McNeir nor Dry
41
Court of Appeals’ determination that equitable estoppel does not bar Levick from attacking the
validity of the parties’ marriage.
I cannot, however, agree with the Court of Appeals regarding its determination that the
failure to follow the requirements of Code § 20-13 results in a voidable, as opposed to a void ab
initio marriage. It has been recognized that
[a] marriage is termed void when it is good for no legal purpose,
and its invalidity may be maintained in any proceeding, in any
court, between any parties, whether in the lifetime or after the
death of the supposed husband and wife, and whether the question
arises directly or collaterally.
1 Bishop, supra, § 258, at 107.
On the other hand,
[a] marriage is voidable when in its constitution there is an
imperfection which can be inquired into only, during the lives of
both of the parties, in a proceeding to obtain a sentence declaring it
null.
Id. § 259, at 107-08.
Along these lines, this Court has recognized that a void ab initio marriage “is a mere
nullity” that “confers no legal rights, and, when it is determined that the marriage is void, it is as
if no marriage had ever been performed.” Toler, 173 Va. at 432, 4 S.E.2d at 367. Indeed, “[a]
marriage void ab initio is no marriage at all.” Bray v. Landergren, 161 Va. 699, 706, 172 S.E.
252, 254 (1933). In contrast, the parties to a voidable marriage “are husband and wife unless and
until the marriage is annulled.” Payne v. Commonwealth, 201 Va. 209, 211, 110 S.E.2d 252, 254
(1959). The primary difference between a voidable marriage and a void ab initio marriage is that
involved challenges to the validity of a marriage; rather both involved challenges to the validity
of divorce decrees entered in another state. Clearly, such actions stand on entirely different
footing with regard to the application of equitable principles.
42
a voidable marriage “may be afterwards ratified by the parties and become valid and usually is
treated as a valid marriage until it is decreed void.” Toler, 173 Va. at 432, 4 S.E.2d at 367.
In Offield, we explicitly held that the General Assembly’s enactment of the precursor to
Code § 20-13:
wholly abrogated the common law in force in this State on the
subject of marriages, and that no marriage or attempted marriage,
if it took place in this State, can be held valid here, unless it has
been shown to have been under a license, and solemnized
according to our statutes.
100 Va. at 262-63, 40 S.E. at 914 (emphasis added). See also Vanderpool v. Ryan, 137 Va. 445,
448, 119 S.E. 65, 66 (1923) (recognizing “that a common law marriage, or attempted marriage,
in Virginia, is void here is settled by the case of Offield v. Davis”) (emphasis added).
Our holding in Offield is clear: by statute, marriages that take place in this state are valid
only if they are solemnized under a license. Id. This means that a solemnization that occurs in
the absence of a license cannot result in a marriage, just as the acquisition of a marriage license
without a subsequent solemnization cannot result in a marriage. Both of these situations
represent the failure to meet the threshold requirements of Code § 20-13. At best, such situations
can only be referred to as attempted marriages, as no actual marriage actually came into being.
An attempted marriage creates no duties or obligations between the parties; it has no effect upon
the property rights of either party. It cannot be subsequently ratified by the parties and become
valid as a result. In short, an attempted marriage is not a marriage; it is a nullity. See Bray, 161
Va. at 706, 172 S.E. at 254 (recognizing that a void ab initio marriage is the equivalent of “no
marriage at all.”); Vanderpool, 137 Va. at 448, 119 S.E. at 66 (“That a common law marriage, or
attempted marriage, in Virginia, is void here is settled by the case of Offield v. Davis.”)
(emphasis added).
43
In reaching its conclusion that the parties’ marriage was merely voidable, the Court of
Appeals looked to the fact that the General Assembly had declared certain prohibited marriages
void ab initio, whereas others were voidable. In taking this approach, the Court of Appeals
analogized an attempted marriage with a prohibited marriage. However, an attempted marriage
is necessarily distinct from a prohibited marriage in that every prohibited marriage, regardless of
whether the prohibition renders the marriage void ab initio or voidable, has satisfied the
threshold requirements of Code § 20-13; an attempted marriage has not. Thus, the fact that the
General Assembly has designated certain prohibited marriages void ab initio and others merely
voidable is of no consequence to this Court’s consideration of whether an attempted marriage is
void ab initio or voidable.
Rather, an attempted marriage is more akin to a common law marriage. In both
instances, the threshold requirements of Code § 20-13 are not met. Thus, it is only logical that
the Court treat attempted marriages in the same manner as we treat common law marriages.
Therefore, attempted marriages, like common law marriages, are void ab initio. See Offield, 100
Va. at 262-63, 40 S.E. at 914. 21
21
The majority appears to misinterpret my logic on this matter. The parties’ marriage is
not void ab initio because it is “in violation of [my] view of solemnization;” it is void ab initio
because no solemnization, and therefore no marriage, occurred. For over 100 years, this Court
has recognized that a failure to meet the threshold requirements of our marital statutes cannot
result in a valid marriage. Offield, 100 Va. at 263, 40 S.E. at 914. As the Court made no
distinction between the various reasons why an attempted marriage might fail to meet the
threshold requirements of our marital statutes, it is only logical that a solemnization without a
license and a license without a solemnization lead to the same result: a void ab initio marriage.
Here, it is my position that the parties failed to meet the threshold requirements of Code
§ 20-13. Therefore, under Offield, no marriage has occurred; the purported or attempted
marriage is a nullity (i.e., void ab initio).
Moreover, it is unclear why it would be necessary for the General Assembly to declare
that the failure to follow Code § 20-13 results in a void ab initio marriage. Since this Court’s
decision in Offield over 100 years ago, that has been the law of the Commonwealth. Thus, the
44
In my opinion, the parties’ failure to meet the threshold requirements of Code § 20-13
means that the parties were never married in the eyes of the law. 22 Accordingly, I would find
that no valid marital relationship existed between the parties and, therefore, their purported
marital relationship was void ab initio.
III.
With regard to the marital agreement entered into by the parties, I would affirm the Court
of Appeals for the reasons articulated in its opinion.
IV.
In conclusion, I cannot agree with the majority’s flawed attempt to preserve a marriage
that never actually existed under the law. Rather, I believe that the judgment of the Court of
Appeals that no marriage results where the parties fail to follow the statutory requirements of
Code § 20-13 in the proper order should be affirmed. I would, however, reverse the Court of
Appeals’ determination that an attempted marriage results in a voidable, rather than void ab
General Assembly would not need to declare that the failure to meet the threshold requirements
of Code § 20-13 does not result in a marriage. Indeed, the only reason the General Assembly
would need to take such action is if it intended to change the law. Given the over 100 years of
legislative acquiescence in this matter, see, e.g., Cochran v. Commonwealth, 258 Va. 604, 607,
521 S.E.2d 287, 289 (1999) (declaring that where the General Assembly “has not rejected or
modified [the] judicial interpretation of [a] statute,” the “construction given to the statute is
presumed to be sanctioned by the legislature and therefore becomes obligatory upon the courts”),
I am confident that the legislature fully intends for attempted marriages, like common law
marriages, to remain void ab initio.
Similarly, the majority’s reliance on Payne to argue that such marriages would be merely
voidable is unavailing. Notably, in Payne, the threshold requirements of Code § 20-13 were met
and, therefore, a marriage was created.
22
I recognize that this is a harsh result, but, as we explained in Offield, “‘[h]owever this
question is decided, it may result in hardship in some cases, but we think the lesser injury will
come from an adherence to the statutory requisites than otherwise.’” 100 Va. at 261, 40 S.E. at
914 (quoting In re Estate of McLaughlin, 30 P. at 658-59). Indeed, it would not be the first time
this Court has enacted such a potent remedy. In Offield, this Court declared that the first 14
years of the appellant’s marriage to her husband was void ab initio.
45
initio, marriage. However, such reversal would not require the matter to be remanded, because,
as the Court of Appeals explained below, “[t]his difference in reasoning may affect future cases
involving a similar defect in the formation of a marriage, but it does not affect in practical terms
the outcome of this case.” MacDougall, 66 Va. App. at 92 n.19, 782 S.E.2d at 203 n.19. Finally,
I would affirm the judgment of the Court of Appeals with regard to the decision to rescind the
parties’ marital agreement.
46