What Constitutes a Valid Marriage?

• Author: Lindsay V. Mason
• Pages: 16-17

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It is axiomatic that in order to get a divorce, a couple must

rst establish that they are married, an essential if typically

easy rst 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 straight-

forward and can prove particularly dicult 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. e 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 benets.

While often a marriage license or certicate 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 specically 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 ling the notice of intention, if

What Constitutes a Valid Marriage?

By LINDSAY V. MASON

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 sucient to overcome procedural

deciencies in Massachusetts.

New York also has a similar “irregular solemnization”

statute that was recently addressed in two dierent cases, but

with two dierent 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. e 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,

ociated. e ceremony was video-taped, and there was a

party afterward for the couple and the guests. is decision

has an entire section entitled “e 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.

Critical to the court’s decision in Ponorovskaya was the

Published in Family Advocate, Volume 43, Number 2, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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