The following is an article from Virginia Lawyers Weekly written by Peter Vieth and published on October 14, 2011:
Man seeks divorce, is told he never was married
‘Affirmation of marriage’ statute used in rare case
A Fairfax County man who asked for a divorce instead got a court ruling that he was never married in the first place, with the judge finding he and his "wife" displayed "a complete lack of good faith" when they took their vows.
The judge determined neither "husband" nor "wife" believed they were really entering into a marriage when they went through with a ceremony in Florida for the benefit of family and friends who attended the wedding.
In fact, as the judge found, the couple had disagreed before the wedding day over a pre-nuptial agreement and decided to withhold their marriage license so they could decide afterwards whether to make their union official.
Discounting the man version of events, the judge even awarded $15,000 in attorneys’ fees to the woman’s attorney. The circumstances make the case unique, according to lawyers for both sides.
The decision of Fairfax County Circuit Judge Randy I. Bellows is contained in a transcript of a court hearing and resulting orders in Namvar v. Bittner.
The man invoked Virginia’s affirmation of marriage statute, Virginia Code § 20-90, which states, "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 decreed to be valid, and such decree shall be conclusive upon all persons concerned."
Bellows put the burden on the wife, but he found she carried her burden of disproving the claim of a valid marriage "by a wide margin."
The couple had a fight before the ceremony about their prenuptial agreement and decided to call off the marriage, according to David N. Webster II of Herndon, the wife’s lawyer. The feuding fiancés had a problem, however. Their family and friends had flown to Singer Island, Fla., for the wedding. Rather than just send everyone home, Webster said, the couple decided to hold the ceremony but pocket the license so it could not be recorded.
Afterwards, the couple lived together in Fairfax County for about a month before separating, according to the man’s complaint. Four months after the ceremony, the woman gave birth to the couple’s daughter. Several months later, the man recorded the marriage license in Florida, Webster said.
The man insisted it was a real marriage – filing the license was just paperwork, he said.
"My client firmly believed they were married and wanted to conclude the marriage with divorce," said his attorney, Stephanie J. Smith of Fairfax.
The judge was not buying the man’s story.
"What I see happened here is that the parties could not reach agreement on the prenuptial, and a decision was made by the parties, mutually, that the license would be withheld from the officiant and therefore no marriage would take place that day," Bellows said.
By the time the man filed the license in Florida, he was facing his "wife’s" child support suit in New York state.
"[The filing] only occurred when it became a chip to be played by the plaintiff in the litigation that was taking place in New York," Bellows said. "So when they stood up and took their vows, I don’t find any good faith on the part of either of them."
Bellows declared the marriage invalid and dismissed the complaint for divorce. He refused to take up the issue of child support, which remains pending in a New York court. No appeal was noticed for the final order, entered Sept. 16.
The case is one of kind, Webster said, and analogous case law is rare. "There are so few cases involving Virginia’s affirmation statute," he said.
"It was fascinating for sure," said Smith.
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