What Constitutes a Valid Marriage?

It is axiomatic that in order to get a divorce, a couple must first establish that they are married, an essential if typically easy first step in the process that we as practitioners probably take for granted in most cases. However, establishing that a marriage has been properly solemnized (in a legally recognizable manner) is not always so straightforward and can prove particularly difficult when dealing with marriages that took place in other countries—whether the parties to the marriage are from the United States or from the other country. The need to establish a legally recognized marriage will also arise in several other contexts such as application for a visa based on marriage to a U.S. citizen, inheriting from a deceased intestate spouse, or applying for government benefits.

While often a marriage license or certificate may be available (the origin of the requirement is quite old and predates even the Marriage Act of 1753 in the United Kingdom, which sought to make mandatory that a couple obtain a license and then be married in a church in order to reduce the frequency of clandestine marriages at the time), what are your resources when it is not or when there is a problem with the license you have?

Certain states have old and likely little-known statutes on the books that may be helpful in addressing “irregular solemnization.” For example, Massachusetts General Laws chapter 207, section 42, captioned “Irregular Solemnization of Marriage; Validity,” states specifically that a “marriage solemnized by a person professing to have the authority to solemnize marriages . . . shall not be void . . . by want of authority in such person . . . , or by an omission or by informality in the manner of filing the notice of intention, if the marriage is in other respects lawful and is consummated with a full belief of either of the persons so married that they have been lawfully married.” Accordingly, the subjective belief of only one of the parties that a lawful marriage has occurred is potentially sufficient to overcome procedural deficiencies in Massachusetts.

New York also has a similar “irregular solemnization” statute that was recently addressed in two different cases, but with two different outcomes. In Ponorovskaya v. Stecklow, 987 N.Y.S.2d 543 (2014), the putative wife sought to defend on appeal the dismissal of her complaint for divorce on the basis of lack of subject matter jurisdiction relying on section 25 of New York’s Domestic Relations law, which stated, in pertinent part to that matter, “Nothing in this article contained shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between persons of full age.” Id. at 602. The parties in this matter held a destination wedding in Mexico but failed to comply with any of the local requirements of a legal marriage in that jurisdiction. However, they did have a wedding ceremony before family and friends. A family member, ordained by the Universal Life Church to perform weddings, officiated.[1] The ceremony was video-taped, and there was a party afterward for the couple and the guests.

Critical to the court’s decision in Ponorovskaya was the failure to follow the requirements of solemnization in the jurisdiction in which the marriage allegedly occurred (the court additionally did not find credible the wife’s professed belief that the couple was legally married, relying heavily on her having continued to file her income tax returns separate from her “husband” as head of household), notwithstanding the court’s earlier conclusion otherwise in Matter of Farraj, 72 A.D.3d 1082 (N.Y. App. Div. 2010), a case decision upon which the wife’s argument rested in large part.

Matter of Farraj addressed a widow in New York seeking to validate her marriage, which had occurred in New Jersey many years earlier but which marriage had failed to comply with New Jersey law, which requires a marriage license (the parties did not obtain the license, but their wedding ceremony complied with Islamic law requirements). The court focused almost entirely on the differing reasons for these New York residents having been married outside New York (a destination wedding versus a requirement of Islamic law that the marriage take place at a particular family member’s home), as well as the Farraj couple’s (a) joint belief based upon additional evidence in that manner that they were legally married and (b) valid religious marriage.

Ponorovskaya also examined the longstanding doctrine of comity (addressed by the U.S. Supreme Court in Hilton v. Guyot, 159 U.S. 113 (1895),[2] in which a jurisdiction typically will recognize the validity of a judgment or law issued outside its jurisdiction typically with the restriction that doing so would not violate public policy. The doctrine of comity was of no assistance to the wife in Ponorovskaya because the court concluded that there was no valid marriage outside its jurisdiction to recognize—legal or religious.

A helpful resource if you have a matter in which a marriage or divorce occurred outside the United States and you need to provide evidence that the parties are either married or divorced (whether these acts occurred in their culture’s custom, in their religion, or civilly) is the U.S. State Department Visa Reciprocity Tables. These tables exist for each country and have compiled whether civil documents such as a marriage certificate exist or, if not, what is required to establish a marriage (such as witness affidavits). For example, if a party was married in Zambia, the State Department’s Visa Reciprocity Table indicates the following with respect to obtaining a marriage certificate:

Procedure for Obtaining:

  • Civil—Applicants apply for registration of a marriage to the Registrar of Marriages at any District Council Office across the Country. The Registrar of Marriages issues a Certificate of Marriage. Applicant may optionally register the marriage with the Office of the Registrar General at the following address:
    The Registrar General of Deaths, Births and Marriages
    O. Box 32311
    Lusaka
  • Customary Law—Customary law marriages are contracted by paying a Lobola (bride price) with the consent of the families. These marriages are not registered. The parties involved may elect to have their marriages registered with one of the 600 local courts where a Local Court Magistrate will order that a Marriage Registration Certificate be issued. Customary marriage certificates appear different than a civil certificate.

While these tables are a fruitful initial resource, it may be most prudent to consult with counsel in the jurisdiction in which the marriage or divorce occurred to review any issues that may be unclear from the records obtained. This is especially so where records are either unavailable or do not exist (see the example of Zambia above in which customary marriages are not registered unless the parties involved elect to register them; see also Tshiani v. Tshiani, 56 A.3d 311 (Md. Ct. Spec. App. 2012), a case decision from Maryland that addressed this situation with a couple from the Democratic Republic of Congo who had been married there according to custom).

Accordingly, the threshold inquiry is whether a couple followed local laws and traditions at the time when they were married (this inquiry is often referred to as “valid where consummated”), and if so, how did they hold themselves out after their ceremony. If a certified marriage document is not available, these are heavily fact-specific inquiries for which witness affidavits and documents like income tax returns or house of worship records, if available, are instrumental in establishing whether a marriage was properly solemnized and is legally recognizable by the jurisdiction in which the parties now reside.

 

Lindsay V. Mason, lvmason@leeandrivers.com, is an attorney with Lee & Rivers LLP in Boston, Massachusetts. She focuses her practice on family law matters and has extensive litigation and out of court settlement experience in the areas of divorce, complex asset valuation and division, child-related matters, post-divorce modifications, enforcement of judgments, child support, and drafting prenuptial agreements.

Originally published in the Family Advocate Vol. 43, NO.2 Fall 2020, a publication of the American Bar Association.

[1] This decision has an entire section entitled “The Legitimacy of a Universal Life Church Minister,” which I recommend reading, though the court does not reach any legally binding conclusion on this issue because the court’s decision rested on the failure to follow the requirements of creating a valid marriage in the jurisdiction in which the wedding took place.

[2] “‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.” Hilton v. Guyot, 159 U.S. 113, 114 (1895).