Legal Question in Criminal Law in Virginia

Re: Obtaining a License to Perform Marriage with False Information

You asked: Would this be a crime?

According to the Code of Virginia, yes.

� 20-28. Penalty for celebrating marriage without license.

If any person knowingly perform the ceremony of marriage without lawful license, or officiate 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.

(Code 1919, � 4542.)

You also asked: "What would be the effect on the two people he married?"

Again, if they meet the requirements of the following Code section, apparently they are still legally married. I'd need to know a lot more facts to say authoritatively that they are, though. They probably should see a lawyer right away.

� 20-31. Belief of parties in lawful marriage validates certain defects.

No marriage solemnized under a license issued in this Commonwealth by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, or any defect, omission or imperfection in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

(Code 1919, � 5082.)

Re: Obtaining a License to Perform Marriage with False Information

As with many questions of law posed by laypersons, it would appear that more facts are needed in order to give definitive answers to your two questions. Title 20-28 of the Va. Code clearly prohibits (with criminal penalty) the celebration of marriage rites by persons without a "lawful license" issued by the appropriate circuit court of the Commonwealth (with certain exceptions). However, from the scenario that you've described, it's not clear that any such actual license was ever issued by a circuit court. What you have described sounds more like an application for such license which the applicant had endorsed by the two witnesses.

However, if in fact this is not correct and

a license was actually issued by the court based upon a fraudulent application, followed by marriage rites performed by the recipient of the

license, there would not necessarily be a violation per se of Sec. 20-28, as I read it, since there was a license valid on its face issued to the one who performed the ceremony.(Whether the license was lawfully issued is another matter.) The perpetrator of this fraud upon the court, nonetheless , might be subject to other criminal sanctions even if he were not liable under 20-28.

The marriage performed under this scenario,

nevertheless, would not, according to Va Code Sec.

20-31 be void or subject to having its validity tainted by the fraud as long as one or both of the

marrying parties who participated in the rite believed it to be valid and entered into the marriage intending it to be so.

I know of one case in Fairfax a few years back where a person of the so-called Wiccan religion (white witch) had applied for a license to perform marriages. Her application was scrutinized, and subsequently denied by the

court after a hearing. The Wiccan then

appealed, I believe, to the appellate court,

but was rejected, if memory serves.

The courts do scrutinize these applications

and do not issue licenses willy nilly without verifiable documentation. It may be that the person you describe in your scenario never was actually issued a license to perform marriages in the Commonwealth but rather had merely applied for one that was never approved and subsequently issued by the court. Or,perhaps,the alleged malefactor forged a license when the court denied his application. MH