§ 1-1.   Bigamous Marriages
§ 1-2.   Ceremonial Marriages
§ 1-3.   Cohabitation
§ 1-4.   Common Law Marriages
§ 1-5.   Miscellaneous
§ 1-6.   Promise to Marry
§ 1-7.   Restraint of Marriage
§ 1-8.   Validity of Marriage

Chapter 1


§ 1-1.   Bigamous Marriages

2013---Naseer v. Moghal, Va. Ct. of Appeals, Unpublished, No. 2186-12-4
It was within the proper discretion of the trial court to order wife to reimburse husband for pendente lite support paid during annulment proceedings where the trial court held that the wife committed bigamy, that her marriage to husband was void ab initio, and that the marriage conferred no legal rights on either party.

2012---Naseer v. Moghal, Va. Ct. of Appeals, Unpublished, No. 2570-11-4
The trial court did not err in finding a marriage bigamous, where evidence revealed that, although wife had obtained a “religious” divorce from her previous husband pursuant to Pakistani law, she had not obtained the requisite “legal divorce” pursuant to Pakistani law. Wife’s testimony that she was unfamiliar with the additional “legal divorce” requirements of Pakistani law, and that she had a good faith belief that satisfaction of the “religious divorce” requirements under Pakistani law were sufficient to end her previous marriage, is insignificant. Such a mistaken belief does not render an otherwise void marriage valid.

2009---Davidson v. Davidson, Va. Ct. of Appeals, Unpublished, No. 2356-08-3
Trial court erred in holding that an otherwise bigamous marriage could be cured by subsequent “corrective measures.” There is no qualification affecting the absolute nullity of a bigamous marriage in Virginia. The parties were married one week before Husband’s final divorce from his previous marriage had been entered. Wife later met with the pastor and had him execute a new marriage certificate, stating that marriage had occurred one week after the pastor had actually performed the ceremony. The marriage was void ab initio, and no subsequent actions by either party are sufficient to cure such a defect.

2006---Rahnema v. Rahnema, 47 Va. App. 645
Annulment action dismissed with prejudice as evidence of bigamy was unpersuasive.

1996---Kelderhaus v. Kelderhaus, 21 Va. App. 721
Spousal support not available because marriage was bigamous and consequently void.

§ 1-2.   Ceremonial Marriages

§ 1-3.   Cohabitation

2007---Stroud v. Stroud, 49 Va. App. 359
The term “cohabit” means to live together in the same house as married persons live together, or in the manner of husband and wife. While engaging in sexual relations is a factor in determining cohabitation, “matrimonial cohabitation” consists of more than sexual relations. It also imports the continuing condition of living together and carrying out the mutual responsibilities of the marital relationship, (citing Schweider v. Schweider, 243 Va. 245 (1992)). There are four non-exclusive factors demonstrative of the “mutual responsibilities of the marital relationship”: 1) common residence; 2) intimate or romantic involvement; 3) the provision of financial support; and 4) duration and continuity of the relationship and other indicia of permanency, (citing Pellegrin v. Pellegrin, 31 Va. App. 753 (2000)).

1993---Bandas v. Bandas, 16 Va. App. 427
“Cohabitation” is a bundle of duties, however many more of these duties, responsibilities, rights and incidents are missing in the situation where one of the parties is incarcerated and the other is not. Va. Code §20-91(3) itself presumes that incarceration terminates cohabitation. By use of the word “resumed” in the statute, the legislature has clearly expressed its judgment that in case of confinement for a felony, cohabitation has ceased, and having ceased, must be “voluntarily” resumed.

Wife did not “voluntarily resume” cohabitation with husband, as contemplated pursuant to Va. Code §20-91(3), by visiting husband in prison.

§ 1-4.   Common Law Marriages

2018---Porter v. Porter, Va. Ct. of Appeals, No. 1872-17-4
The trial court did not err in finding that the appellant failed to prove the existence of a common law marriage under Washington D.C. law. Virginia does not recognize common-law marriages where the relationship is created in Virginia. However, a common law marriage that is valid under the laws of the jurisdiction where the common law relationship was created is recognized in Virginia. A marriage’s validity is to be determined by the law of the state where the marriage took place, unless the result would be repugnant to Virginia public policy. Unlike Virginia, D.C. recognizes common law marriages. The elements of common law marriage in D.C. are cohabitation as husband and wife, following an express mutual agreement. Here, the parties held a marriage ceremony in D.C., which satisfied the “express mutual agreement” element under D.C. law. However, after the wedding ceremony, the parties stayed in a hotel room in D.C. for one night only before relocating to Virginia. Although the appellant had significant contact with D.C. as a resident, he and the appellee’s contact with D.C. as a couple was brief and insufficient to prove cohabitation for common law marriage purposes.

§ 1-5.   Miscellaneous

§ 1-6.   Promise to Marry

2016 --- McGrath v. Dockendorf, 292 Va. 834
Code of Virginia § 8.01-220, bars the common law action for a breach of a promise to marry, but does not foreclose an action in detinue to recover an engagement ring that was given in contemplation of marriage. Breach of a promise to marry suits were intended to broadly compensate a plaintiff for the loss and humiliation of a broken engagement. Detinue, however, is an action to recover specific personal property and damages for its detention.

A plaintiff who gives an engagement ring to the defendant as a conditional gift in contemplation of marriage, and where said marriage does not occur, may seek the return of the engagement ring, or damages for its value, through an action in detinue. To succeed, the plaintiff must establish that: 1) the plaintiff has a right in the property sought to be recovered; 2) the plaintiff has the right to the immediate possession of the property; 3) the property is capable of identification; 4) the property has some value; and 5) the defendant had possession of the property prior to the institution of the action.

2014---Peter v. Langley, Loudoun County Cir. Ct., No. 89241
Code of Virginia § 8.01-220, otherwise known as the Hart Balm Act, generally prohibits actions for a breach of a promise to marry. Some Virginia Circuit Courts have interpreted the statute to prohibit the return of property given on the condition of marriage. However, the majority view is that Hart Balm Acts merely prohibit actions for damages suffered from the loss of marriage, humiliation, and other direct consequences of the breach, but do not otherwise affect the rights and duties between the parties relative to gifts passing between them, which are governed by common-law principles. Here, the plaintiff gave the defendant an engagement ring in contemplation of and on the condition of marriage. The defendant subsequently terminated the engagement. Pursuant to the the majority view, the plaintiff has the right to recover the engagement ring.

1941---Pretlow v. Pretlow, 177 Va. 524
If an intended husband gives a gift to his intended wife, after the treaty of marriage has been negotiated, and the inducement for the gift is the fact of her promise to marry, and if she breaks off the marriage, he may recover from her the value of such present.

§ 1-7.   Restraint of Marriage

§ 1-8.   Validity of Marriage

2015---MacDougal v. Levick, 66 Va. App. 50
The public policy of Virginia is to uphold the validity of the marriage status for the best interest of society, except where marriage is prohibited between certain persons. Code of Virginia § 20-20 provides that a properly recorded, returned, and certified marriage certificate “shall be prima facie evidence of the facts therein set forth in all courts of this Commonwealth.” However, a party can defeat the presumption of a lawful marriage by clear, cogent, and convincing evidence.

The trial court did not err in finding that the parties never married under Virginia law. Pursuant to Code of Virginia § 20-13, the parties must first obtain a marriage license, then participate in a ceremony of some kind, however brief or formal, to solemnize the marriage. To solemnize a marriage means to enter into it by a formal act, usually before witnesses. In Virginia, no particular form of marriage ceremony is required. However, at the very least, the solemnization ceremony requires the attendance of both the prospective bride and groom. Here, the parties held a formal marriage ceremony before they obtained a valid marriage license. The parties’ subsequent mailing of the marriage license to the ceremony officiant for his signature without the parties being present does not constitute “solemnization” under any reasonable definition of the term.

Furthermore, Code of Virginia § 20-31 does not apply and therefore cannot validate the parties’ marriage. Code § 20-31 aims to cure “any want of authority” in the person performing the marriage and “any defect, omission or imperfection in [the marriage] license.” Here, because the parties failed to obtain a marriage license before solemnizing their marriage, as required by Code § 20-13, there could no defect, omission, or imperfection in the then non-existent license

The parties’ failure to solemnize their marriage subsequent to obtaining a license pursuant to Code of Virginia § 20-13 rendered their marriage voidable, rather than void ab initio. A marriage that is void ab initio 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 married parties, and whether the question arises directly or collaterally. A void marriage confers no legal rights, and when it is determined that the marriage is void, it is as if no marriage had ever been performed. A voidable marriage differs from a void marriage in that it may be subsequently ratified by the parties and usually is treated as a valid marriage until it is decreed void.

Whether void or voidable, a declaration that a marriage or an attempted marriage is void results in a judicial decree that the marriage is a nullity. The difference lies in who can challenge the marriage and when such a challenge can be raised.

Rights to equitable distribution and spousal support do not arise when a marriage is ultimately declared a nullity.

2015---Obergefell v. Hodges, S.C., R-73, No. 14-556
The Fourteenth Amendment requires states to license marriages between two people of the same sex, and to recognize marriages between two people of the same sex when their marriage was lawfully licensed and performed out of that state.

2009---Prashad v. Copeland and Spivey, 55 Va. App. 247
The operative language of the Virginia Marriage Amendment prohibits the Commonwealth from creating or recognizing relationships between unmarried individuals that are “assigned the rights, benefits, obligations, qualities, or effects of marriage.”

The mere registration in Virginia of orders entered by a North Carolina court which granted custody of a child to the biological father and his homosexual partner, over the objection of the child’s natural mother, did not implicate the Virginia Marriage Amendment by “tacitly” recognizing the homosexual relationship as a legal status to which marital rights could be afforded. The child’s father and his homosexual partner entered into a surrogacy agreement with the child’s natural mother, and upon the birth of the child, moved with the child away from the mother. When the father and his partner later denied the mother visitation, the mother sought relief through the North Carolina courts. The record demonstrated that the North Carolina court allowed the homosexual partner to intervene in the case and awarded him custodial rights because he had been a full time parent to the child since birth, had been originally listed as the father on the child’s birth certificate, had allowed the child to use his surname, and was believed by all parties involved to be the child’s natural father for the first fourteen months of the child’s life until DNA testing proved otherwise. The Virginia court found that, based on those circumstances cited in the record, the North Carolina court’s grant of custodial rights to the homosexual partner arose from his “legitimate interest” in the child, and not from his homosexual relationship with the child’s natural father.

(Return to top of page)