Can a Virginia court retroactively validate a wedding ceremony where the couple never obtained a marriage license?

Plain-English summary

Fairfax Circuit Court Clerk John Frey told AG William Mims that several couples had come to him asking what to do about their wedding ceremonies. Each couple had participated in a religious ceremony but never obtained a marriage license. Some of the celebrants were authorized to officiate at Virginia weddings, some were not, and the status of others was unknown. Was there any way to fix this after the fact? Could a court "affirm" the marriage? Could the court order the clerk to issue a license retroactively?

The AG said no on both fronts. Virginia law treats the marriage license as the foundational requirement, not a paperwork step that can be filled in later. Section 20-13 says, "Every marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided." The Supreme Court of Virginia put it bluntly in 1902: "no marriage or attempted marriage, if it took place in this State, can be held valid here, unless it has been shown to have been under a license, and solemnized according to [the] statutes." Officiating without a license is itself a crime under § 20-28, punishable by jail time and a fine.

There is a statutory cure provision (§ 20-31), but it only saves marriages that were performed "under a license issued in this Commonwealth" from later attacks based on the celebrant's authority or a defect in the license itself. It does not cure the absence of a license. The affirmance statute, § 20-90, requires "due proof of the validity" of the marriage. With no license, no such proof exists. The AG also declined to invent an equitable workaround. Calling a ceremony a "marriage" when no license issued would not be affirming a marriage; it would be creating one, and the AG found no grant of authority for Virginia courts to do that.

On the retroactive-license question, § 20-14 lets a circuit court judge issue a marriage license only when neither the clerk nor a deputy clerk is able to do so. That backup authority is narrow. The clerk's office in this scenario was perfectly able to issue licenses, just not retroactively, so the statute did not apply. The clean outcome for the couples: redo the ceremony with a proper license.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does Virginia recognize common-law marriage?
A: No. Virginia has long refused to recognize common-law marriage formed within the Commonwealth. A licensed ceremony is required. (Virginia will sometimes recognize common-law marriages that validly formed in states that do allow them.)

Q: What does § 20-31 cure?
A: It cures defects in the celebrant's authority, or "any defect, omission or imperfection" in a license that was actually issued. So if a license issued but the celebrant turned out not to be properly authorized, the marriage holds. But § 20-31 only operates once a license issued in the first place.

Q: Could the couple sue under § 20-90 to have the marriage "affirmed"?
A: Section 20-90 requires "due proof of the validity" of the marriage. The AG read that to mean proof that a license issued, which by hypothesis these couples could not provide. So the suit would fail.

Q: When can a circuit court judge issue a marriage license under § 20-14?
A: Only when neither the clerk nor deputy clerk is able to issue it. That covers situations like a clerk's office closed or unavailable, not a request to backdate a license that should have issued months or years earlier.

Q: What was the practical fix for these couples?
A: Obtain a marriage license and have a new ceremony solemnized by an authorized celebrant. The earlier ceremony, however meaningful religiously, did not produce a legally valid Virginia marriage.

Background and statutory framework

Title 20 of the Code governs domestic relations. Section 20-13 establishes the license-and-solemnization rule. Section 20-14 governs the rare circuit-court-judge-issues-license fallback. Sections 20-14.2, 20-15, 20-16, 20-16.1, 20-20, and 20-21 fill in the clerk's duties around health information, license tax, oaths, indexing, and reporting. Section 20-28 criminalizes performing the ceremony without a lawful license. Section 20-31 is the statutory cure for celebrant/license defects, limited to marriages that issued under a license. Section 20-90 is the affirmance procedure when one spouse denies the marriage's validity.

The 1902 Offield v. Davis decision still drove the rule on no-license marriages: they are not valid. Virginia treats the license as a structural requirement, not a recordkeeping detail.

Citations

• Va. Code Ann. § 20-13 (license-and-solemnization requirement)
• Va. Code Ann. § 20-14 (judge as backup issuer of license)
• Va. Code Ann. § 20-28 (criminal penalty for unlicensed officiating)
• Va. Code Ann. § 20-31 (cure for celebrant or license defects)
• Va. Code Ann. § 20-90 (suit to affirm validity of marriage)
• Offield v. Davis, 100 Va. 250 (1902) (no license, no valid marriage)
• Hager v. Hager, 3 Va. App. 415 (1986) (Virginia law governs in-state marriage validity)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-072-Frey.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

December 10, 2009

The Honorable John T. Frey
Fairfax Circuit Court Clerk
4110 Chain Bridge Road
Fairfax, Virginia 22030-4048

Dear Mr. Frey:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire about the status of certain marriages for which the parties did not obtain marriage licenses. Specifically, you ask whether a court may affirm such marriages when the marriages were performed by a religious or civil celebrant: (1) authorized to perform marriages in Virginia; or (2) not authorized to perform marriages in Virginia. Further, you ask whether a court may order the clerk of the circuit court ("clerk" or "circuit court clerk") to issue a marriage license retrospectively under these circumstances.

Response

It is my opinion that a court does not have the statutory or equitable authority to affirm marriages that were not performed under a license of marriage. Further, it is my opinion that a court may not direct a circuit court clerk to issue marriage licenses retrospectively under these circumstances.

Background

You advise that several couples have inquired about the status of their respective marriages. In each case, you note that the couple did not obtain a marriage license, but did participate in a religious ceremony of marriage. You state that some of the celebrants were authorized to perform marriages in Virginia, some were not, and the status of some celebrants is unknown.

Applicable Law and Discussion

The Virginia Code is clear that a marriage license is required. "Every marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided."[1] In each of the situations you present, the couple did not obtain a marriage license. Thus, the status of the celebrant is irrelevant with respect to the marital status of the couple. The Supreme Court of Virginia also has spoken clearly on this issue. "[N]o marriage or attempted marriage, if it took place in this State, can be held valid here, unless it has been shown to have been under a license, and solemnized according to [the] statutes."[2] Therefore, in the situations you present, it is my opinion the marriages are not valid under Virginia law.

The centrality to marriage of a properly issued license is underscored by § 20-28, which provides criminal sanctions for celebrants who perform ceremonies without licenses being obtained.[3] Further, the General Assembly has placed numerous statutory duties upon a clerk or deputy clerk regarding the issuance of a marriage license[4] as well as responsibilities subsequent to such issuance.[5] A marriage performed "under a license issued in this Commonwealth" cannot be adjudged to be void "on account of any want of authority" in the celebrant, or by "any defect, omission or imperfection in such license."[6] However, this statutory cure is limited to the status of the celebrant or errors in a properly issued license.[7] Section 20-13 presumes the issuance of a marriage license.[8]

Section 20-90 provides that:

When the validity of any marriage shall be denied or doubted by either of the parties, the other party may institute a suit for affirmance of the marriage, and upon due proof of the validity thereof, it shall be deemed to be valid, and such decree shall be conclusive upon all persons concerned.

Based on the facts you present, it appears that the parties could not provide "due proof of the validity"[9] because no marriage licenses were issued. Without the statutorily required proof, a court is without authority to decree the marriage to be valid.

Further, I find no authority for a court to exercise "equitable authority" to affirm marriages. The Court of Appeals of Virginia has held that "the law of Virginia must be applied to determine the question of validity of the marriage within this state."[10] For a court to declare a "marriage" when no license was issued would not be an affirmation of a marriage. Such an action would be the creation of a marriage. I find no such broad grant of authority to Virginia's courts.

Finally, you ask whether a court may order a clerk to issue a marriage license under these circumstances. A circuit court judge has the authority to issue a license only when "neither the clerk nor deputy clerk is able to issue the license."[11] It is well settled that "the primary objective of statutory construction is to ascertain and give effect to legislative intent."[12] When the language of a statute is plain and unambiguous, courts are bound by the plain meaning of that language.[13] Thus, a circuit court judge may issue a marriage license only when the clerk or deputy clerks are unable to issue the license. A court has no other statutory or equitable authority to issue or direct the issuance of a license.

Conclusion

Accordingly, it is my opinion that a court does not have the statutory or equitable authority to affirm marriages that were not performed under a license of marriage. Further, it is my opinion that a court may not direct a circuit court clerk to issue marriage licenses retrospectively under these circumstances.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. VA. CODE ANN. § 20-13 (2008).
2. Offield v. Davis, 100 Va. 250, 263, 40 S.E. 910, 914 (1902).
3. "If any person knowingly perform[s] the ceremony of marriage without lawful license, or officiate[s] in celebrating the rites of marriage without being authorized by law to do so, he shall be confined in jail not exceeding one year, and fined not exceeding $500." Section 20-28 (2008).
4. See § 20-14.2 (2008) (providing that certain health information be furnished to marriage applicants); § 20-15 (2008) (directing clerk to collect license tax); § 20-16 (2008) (requiring clerk to take oath).
5. See § 20-20 (2008) (providing that clerk shall file and preserve returned licenses and certificates and index names of parties); § 20-21 (2008) (mandating that clerk compile list of all marriage licenses issued during calendar year that were not returned by celebrant and to furnish list to Commonwealth's attorney).
6. Section 20-31 (2008).
7. See 1982-1983 Op. Va. Att'y Gen. 336, 337.
8. I note that § 20-16.1 allows a clerk, under certain circumstances, to amend marriage records. However, § 20-16.1 also presumes the issuance of a license.
9. Section 20-90 (2008).
10. Hager v. Hager, 3 Va. App. 415, 416, 349 S.E.2d 908, 909 (1986) (emphasis added).
11. Section 20-14 (2008).
12. Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983).
13. Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001).