Pasternak & Fidis Reporter

May 26, 2017

On your way to the altar . . ., don’t forget to get married!

The trend in recent years has been toward greater creativity in marriage ceremonies, including locations, vows, and officiants. In personalizing the ceremony, it is important to keep in mind that the legal requirements for marriage are set forth in the laws of each jurisdiction, both as to the qualifications for a person to marry and the legal steps necessary to ensure that the marriage is valid.

Historically, marriage has been subject to the control of state legislatures (in the District of Columbia, the City Council). Statutes set forth the requirements for who is allowed to marry, the required procedure to marry, and the legal effects of marriage.  Spouses who marry in religious or other ceremonies that do not comply with the statutory requirements may be considered married according to their religion, but not under the law, and they do not obtain any of the legal rights of marriage.

The laws of D.C., Virginia, and Maryland do not go so far as to mandate any particular form of ceremony or vows. However, all three jurisdictions by statute require applicants for ceremonial marriage to obtain a marriage license and to thereafter solemnize their marriage in the presence of an officiant authorized according to the local statute.  In the District of Columbia, starting in 2013, the statute has allowed self-officiated marriages in which the two people marrying act as their own officiants.  The District of Columbia, alone among the three local jurisdictions and unusual in the United States, recognizes common law marriage.

All three jurisdictions require the applicants to obtain a marriage license from the court clerk in the jurisdiction where the marriage will be performed, not where the applicants reside.  In Maryland, the applicants must go to the clerk of the county where they will marry.  Also, in Maryland, for out-of-state residents (unless in the military), the license is not effective until 6 a.m. on the second calendar day after the license is issued.  The applicants must state under oath in the license that they meet the basic requirements:  minimum age to marry, lack of close familial relationship, and unmarried status.  Although there is no expiration date for a license in the District of Columbia, Maryland licenses expire after six months and Virginia licenses expire after sixty days.  After expiration, the license is no longer valid authority for a marriage.  The officiant of the ceremony must complete the license by certifying that the marriage ceremony took place and returning the completed marriage certificate to the court within five days in Maryland and Virginia and ten days in the District of Columbia.

The statutes of all three local jurisdictions spell out who is authorized to officiate a ceremony within the jurisdiction. Judges, retired judges and, in the District of Columbia, the Mayor and City Council members, may perform weddings.  In Maryland and D.C., court clerks may officiate.  Members of the clergy can officiate marriage ceremonies; in Virginia, however, they must have court approval.  All jurisdictions have a statute allowing marriages to be solemnized according to the practice of religious societies that do not have any members designated comparable to a minister, priest, rabbi, or imam.  Courts, by statute, also have the authority to approve applications of other individuals, including a representative of a secular organization or another individual who applies to officiate a particular wedding.

The District of Columbia allows the marrying couple to self-officiate by selecting that option on the marriage license and returning the license, completed with their certification of their marriage, within ten days of the marriage.

The Virginia Court of Appeals ruled that a divorcing couple, who thought they were married, never had a valid marriage because their marriage ceremony was performed without a marriage license. After the ceremony, they obtained a license and the rabbi who performed the ceremony filled it out and sent it back to the court.  The Virginia court ruled that these actions did not cure the lack of a license; the two non-curable statutory requirements – to obtain the license and thereafter to solemnize the marriage with an authorized officiant – were not met.  Although there are no cases that consider the consequences if an officiant fails to return the completed marriage certificate after the ceremony, all three jurisdictions impose small fines on an officiant who fails to do so.  The implication of these statutes and the lack of any court case on the subject suggest that failure to timely return the license will not be grounds for invalidating the marriage.

All three local jurisdictions prohibit a marriage of a person who is currently married to another person. Such a bigamous marriage is void, and no legal rights of marriage are created.  If persons registered as domestic partners under D.C. law marry each other, the marriage terminates their domestic partnership as a matter of law.  There are no statutes or cases requiring a registered domestic partnership to be dissolved before one of the parties enters into marriage with someone else.  Nor do the marriage license bureaus inquire into this.  However, it is prudent for a party in a registered domestic partnership to terminate it before marrying someone else.  In addition, all three jurisdictions allow a marriage to be voided when one of the parties lacked mental capacity to give consent.  Marriage is also prohibited to a person within certain degrees of familial relationship, including, for example, sibling, grandparent, parent, child, aunt, uncle, niece, and nephew.

Statutes impose minimum ages to marry. In the District of Columbia, a person must be 18 or older to obtain a license without parental permission (unless the person has been previously married).  Persons ages 16 to 17 require parental consent.  Although legislation is pending in the Maryland General Assembly to prohibit marriage under the age of 18, at present minors can marry under certain conditions.  A person age 15 may not marry unless two requirements are met:  parental consent and a medical certification that the woman is pregnant or has given birth.  A person age 16 or 17 may not marry without parental consent, or, in the case of a woman, if by medical certification, she is determined to be pregnant or have given birth.  Persons 18 years old or older are adults and eligible to marry.  In Virginia, the minimum age to marry is 18 or age of emancipation, if younger.  Virginia also recognizes marriages contracted legally in other states at a younger age, if the person was not a resident of Virginia at the time of the marriage.

In 2010, the District of Columbia recognized the right of persons to marry someone of the same gender. In 2013, Maryland did the same.  In 2015, the United States Supreme Court, in Obergefell v. Hodges, held that state laws prohibiting same-sex couples from marrying are invalid, thereby invalidating a Virginia statute prohibiting same-sex marriage.

For the most part, each of the three local jurisdictions recognizes the validity of marriages contracted legally in another jurisdiction. The District of Columbia, however, does not extend this recognition to a marriage of a District of Columbia resident who, in another jurisdiction, enters into a marriage that would be illegal if it had taken place in D.C.

In the District of Columbia, parties who have not met the requirements for a ceremonial marriage may nevertheless be spouses as a result of a common law marriage. The party who wishes to prove a common law marriage must establish that both parties intended and considered themselves married, that they engaged in sexual relations at the time they considered themselves married, and that they held themselves out in the community as married.  Needless to say, both parties to the common law marriage must be unmarried to anyone else at the time they assert that the common law marriage exists.  If a couple intend to be married under common law, despite one of the parties having an impediment to marry, such as an existing marriage to someone else, a common law marriage may arise if the impediment is removed, for example, by divorce or by death of the existing spouse, and other necessary elements are present.  Both Maryland and Virginia recognize a common law marriage that arose in D.C. (or another jurisdiction where common law marriage is recognized).  A common law marriage can only be terminated by formal judgment of divorce.