Deborah MacDougall and Richard Levick have been in and out of divorce court since 2011. Their primary problem? They never were actually married.
That has been the legal conclusion of a trial court and the Virginia Court of Appeals.
But the Court of Appeals recently revisited the case, not to change the outcome, but to address a related point argued by Levick: If the court did not declare the couple’s marriage void ab initio, “it would be tantamount to recognizing common law marriage.”
Something was missing
The couple were ceremonially joined by a rabbi in December 2002, just after they had moved into a new home, where they were rearing their two children. They had engaged the rabbi, but neglected to get a marriage license.
The couple secured a license two weeks later and sent it to the rabbi, who signed it and returned it to them. When troubles arose in 2009, the parties negotiated a marital agreement that gave MacDougall $8,000 in monthly spousal support. She filed for divorce in 2011, and the couple litigated the validity of the marital agreement into 2012, when Levick said he would “live with the agreement.”
Lo and behold, his lawyers observed a discrepancy between the date of the wedding and the date on the marriage license. Because the marriage had not been solemnized “under a license,” it did not follow Virginia statutory requirements for a marriage.
A Fairfax Circuit Court declared the couple were not husband and wife and a Virginia Court of Appeals panel upheld that decision.
A second look
The appeals court panel has reheard the case, MacDougall v. Levick, in order to review the question of whether the faux marriage was void ab initio, from its inception, or whether it was merely voidable, and ultimately declared void.
Fairfax Circuit Judge Randy I. Bellows held the “marriage” was void, and he did not reach issues of laches or estoppel, legal principles that would only apply, if at all, if the marriage were deemed “voidable.”
In its first opinion in the case, the panel said that whether void or voidable, a declaration that the marriage was void meant the marriage was a nullity, and that equitable doctrines of laches and estoppel would not apply.
In seeking rehearing last fall, the parties asked the panel to consider the consequences of a finding that the marriage was voidable, and what implications that ruling could have on the availability of equitable remedies of spousal support and property division under the parties’ 2009 agreement.
The panel issued its opinion on rehearing on Feb. 23.
Initially, the panel agreed with MacDougall’s contention that the defect in this case rendered the marriage voidable. The panel said it was reluctant to declare a marriage void ab initio for failing to comply with Va. Code § 20-13 when the General Assembly had not taken that step.
A voidable marriage usually is treated as a valid marriage until it is decreed void, the panel said. The distinction lies in who can challenge the marriage and when such a challenge can be raised.
If a marriage is regarded as void ab initio, anyone could challenge the validity of the marriage, at any time – disgruntled heirs, an insurance company, children whose legitimacy could be questioned.
Here, the purported marriage was voidable, not void, under the existing statutory scheme, the panel held, based on Levick’s challenge to its validity.
But the panel said it saw “little reason to take a further and highly disruptive step by holding such marriages void ab initio, particularly when nothing in Virginia statutes or precedent compels that conclusion.”
No change in outcome
Judge Stephen R. McCullough rejected Levick’s argument that finding marriages like this one voidable rather than void would have the practical effect of recognizing common law marriages. Unlike in a common law marriage, the parties here tried, but failed, to follow the legal requirements for a marriage, and the marriage in fact could be declared void, once the parties moved to set it aside.
MacDougall argued that a recognition that the marriage was voidable should open the door to equitable distribution and spousal support. Not so, the panel said. Because it pushed through to a decision that the marriage was void, “no marital estate ever existed” and MacDougall was never a “spouse” to Levick.
The panel declined MacDougall’s invitation to adopt the concept of “marriage by estoppel.” Virginia’s statutory framework for marriage has been around since 1628, if not earlier, and it is up to the legislature to make any changes in the statutory formalities, the panel said.
The decision that the marriage was voidable made no practical difference in MacDougall’s case, but the difference in reasoning could affect future cases involving a similar defect, McCullough wrote.
The court again remanded the case for a determination of MacDougall’s legal fees in defending the appeal.