Is a marriage valid in Virginia if the couple got a Virginia license but had their ceremony in another state, with a Virginia-authorized officiant?

Plain-English summary

A couple bought a marriage license from the Prince William County Circuit Court Clerk's office, then traveled to Bethesda, Maryland and were married there. The minister was a person authorized to celebrate marriages in Virginia under an order from the Fairfax County Circuit Court. Was the marriage valid? Clerk Michele McQuigg asked.

AG Cuccinelli concluded no. Virginia marriages require two steps: licensure and solemnization (§ 20-13). The license was fine. The problem was solemnization. Section 20-23 (ministers) and § 20-25 (other authorized persons) both explicitly limit the authority to celebrate marriages "in this Commonwealth." Once the ceremony moved to Maryland, the officiant's Virginia authorization did not travel with him.

The AG also addressed § 20-37.1, which on its face appears to validate out-of-state marriages by Virginia-authorized ministers under Virginia licenses. The catch is the word "heretofore." The statute uses past-tense language ("All marriages heretofore solemnized outside this Commonwealth …"). The General Assembly enacted § 20-37.1 in 1952, and "heretofore" means before, up to, or hitherto. Reading it any other way would render "heretofore" superfluous. So § 20-37.1 was a one-time validation of marriages performed before 1952, not a continuing exception to the territorial limit.

Practical implication: couples wanting a destination wedding outside Virginia have to either (1) have a separate (even brief) ceremony in Virginia performed by a Virginia-authorized officiant, or (2) get married validly under the law of the destination state, which usually involves getting that state's marriage license.

Currency note

This opinion was issued in 2010. 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: What about active or retired Virginia judges performing weddings out of state?
A: The third class of authorized officiants (active or retired Virginia judges and justices) is authorized to celebrate marriages "anywhere in the Commonwealth." The opinion noted that class is irrelevant to the question; the same in-Virginia territorial limit appears in their authorization.

Q: Does Maryland recognize the marriage?
A: That depends on Maryland law and on whether the couple obtained a Maryland marriage license. The opinion only addresses the Virginia view.

Q: What's the safest way to have a destination wedding and have it recognized in Virginia?
A: Have the destination state's officials solemnize it under the destination state's license. Marriages valid where solemnized are generally recognized in Virginia under conflict-of-laws principles, separate from the question this opinion addressed.

Q: What does § 20-37.1 actually do, if it doesn't help destination weddings now?
A: The AG read § 20-37.1, enacted in 1952, as a one-time validation of marriages already solemnized outside Virginia before the statute took effect (the operative word is "heretofore"). It did not create a continuing exception to the in-Virginia territorial limit going forward.

Background and statutory framework

Section 20-13 sets the two-step structure for a valid Virginia marriage. Sections 20-23 and 20-25 grant celebration authority by court order, and both expressly limit the authority to the Commonwealth. Section 20-37.1 read in isolation looks like a broader exception, but the use of "heretofore" plus the 1952 enactment date together confine its reach. The AG followed the canon that statutes should be read to avoid surplusage and that the legislature "chose, with care, the words it used."

Citations

• Va. Code Ann. § 20-13 (license and solemnization required)
• Va. Code Ann. § 20-23 (minister authorization, in this Commonwealth)
• Va. Code Ann. § 20-25 (other officiant authorization, in the Commonwealth)
• Va. Code Ann. § 20-37.1 (1952 validating statute, "heretofore solemnized")
• Barr v. Town & Country Props., 240 Va. 292 (1990) (legislature chose its words with care)
• Cook v. Commonwealth, 268 Va. 111 (2004) (avoid surplusage canon)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-025_McQuigg.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General

Kenneth T. Cuccinelli, II
900 East Main Street
Richmond, Virginia 23219

Attorney General
May 18, 2010
804-786-2071

The Honorable Michele B. McQuigg
Prince William County Circuit Court Clerk
9311 Lee Avenue
Manassas, Virginia 20110

Dear Ms. McQuigg:

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

Issue Presented

You ask if a valid marriage exists where: (a) the bride and groom are issued a marriage license by a clerk of a Virginia circuit court; (b) the ceremony is performed by a minister or other person authorized in Virginia to celebrate the rites of marriage; and (c) the solemnization of the marriage occurs in a state other than Virginia.

Response

It is my opinion that the authority vested in a minister or other person authorized to perform the rites of matrimony in Virginia does not extend to a celebration of marriage under a Virginia marriage license when the ceremony is conducted outside the territorial boundaries of the Commonwealth of Virginia.

Background

You advise that a couple obtained a marriage license from your office. You relate that the couple travelled to Bethesda, Maryland, and were married in a ceremony conducted in Maryland. You note that the individual who performed the marriage ceremony was properly authorized to do so within the Commonwealth of Virginia under an order issued by the Circuit Court of Fairfax County.

Applicable Law and Discussion

There are two mandatory steps for a valid marriage in the Commonwealth: licensure and solemnization. Section 20-13 states that "[e]very marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided." In this instance, there is no question regarding the propriety of the license issued by your office. The issue concerns the solemnization of the marriage.

The General Assembly has authorized three distinct classes of persons to celebrate the rites of matrimony in the Commonwealth. The first class consists of ministers of any religious denomination who present to the circuit court, or a judge or clerk of such court, the credentials listed in § 20-23 and receive an order "authorizing such minister to celebrate the rites of matrimony in this Commonwealth." The second class consists of persons, other than ministers, to whom a circuit court judge has issued an order permitting them "to celebrate the rites of marriage in the Commonwealth." The third class, which is not relevant to your inquiry, consists of certain active or retired judges or justices who "may celebrate the rites of marriage anywhere in the Commonwealth without the necessity of bond or order of authorization."

In interpreting statutes, "[w]e must … assume that the legislature chose, with care, the words it used when it enacted the relevant statute, and we are bound by those words as we interpret the statute." The authorization granted to a minister of any religious denomination, pursuant to § 20-23, specifically limits that authority to the celebration of the "rites of matrimony in this Commonwealth." Likewise the authorization granted to a person, other than a minister, pursuant to § 20-25, extends only "to celebrate the rites of marriage in the Commonwealth." In the facts you present, the individual performing the marriage ceremony was properly authorized by either § 20-23 or by § 20-25. As such, his authority to perform the rites of matrimony is limited to the Commonwealth of Virginia.

The inquiry does not end with §§ 20-23 and 20-25. The General Assembly has enacted "an exception to the requirement of celebrating the marriage in the state where the license is issued." Section 20-37.1 provides that:

All marriages heretofore solemnized outside this Commonwealth by a minister authorized to celebrate the rites of marriage in this Commonwealth, under a license issued in this Commonwealth, and showing on the application therefor the place out of this Commonwealth where said marriage is to be performed, shall be valid as if such marriage had been performed in this Commonwealth.

The term "heretofore" "'in its common acceptation, means before: before and up to the present time; before, or down to, this time; hitherto; in time past, previous time, or previously; up to this time; and it may mean in times before the present; formerly.'" Therefore, it is my opinion that § 20-37.1 is limited in its application to marriages performed before this statute went into effect. To read the statute otherwise would render the term "heretofore" superfluous. "Words in a statute should be interpreted, if possible, to avoid rendering words superfluous." Section 20-37.1 was enacted in 1952. Of course, a couple wishing to be married outside of the boundaries of Virginia by a minister licensed in Virginia has any number of avenues to ensure their marriage is valid in Virginia.

Conclusion

Accordingly, it is my opinion that the authority vested in a minister or other person authorized to perform the rites of matrimony in Virginia generally does not extend to a celebration of marriage under a Virginia marriage license when the ceremony is conducted outside the territorial boundaries of the Commonwealth of Virginia.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General