Virginia Divorce: The Marriage That Wasn’t

In MacDougall v. Levick (Case No. CL-2011-4071), the parties thought that they were married.  They had their wedding officiated by a rabbi on December 21, 2002.  They applied for their marriage license on January 6, 2003.  They sent it to their rabbi who received it on January 21, 2003.  Their rabbi signed the license with a stated marriage date of January 21, 2003.  The license itself was filed with the Clerk of the Fairfax County Circuit Court on February 11, 2003.  The parties then lived together as husband and wife for the next 8 years before commencing tumultuous divorce litigation in 2011.  What could have gone wrong?

Well, the problem with their divorce case was the simple fact that there is no one to divorce if you are not married in the first place.  And, the problem with them being married in the first place is that they failed to have their marriage solemnized under their marriage license.  Indeed, their solemnization occurred before they ever received their license.  This violates Va. Code § 20-13,[1] which is vague as to the required order of operations but the trial court looked to other associated code sections to determine that this must be the required order of operations (e.g., Va. Code § 20-16, which requires the clerk issuing the marriage license to issue it to parties contemplating marriage).  As such, this purported marriage is void ab initio (i.e., it’s like it never happened) and there is no one to divorce.

[1] Virginia Code § 20-13 states: “Every marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided.”