Legal Question in Family Law in Virginia

Re: Bigomy?

Your Canadian marriage is what Virginia considers a legal nullity, and now absolutely without legal effect in the Commonwealth which is all that matters. It could not be the basis for bringing the criminal charge of bigamy(even if gay arrangements were to be recognized by Virginia at some future time) against you in the event that you were to now solemnize a marriage with a woman in full conformity with the laws of the Commonwealth.

Re: Bigomy?

I think that you should do WHATEVER IT TAKES TO GET DIVORCED IN CANADA. If he still lives in Canada, maybe you can convince him to file for divorce.

Sincerely,

Tiziana Ventimiglia.

Re: Bigomy?

Wow! This would make a terrific exam question for a law school family law course. In my opinion, the issue of same sex marriage is headed for a clash, which at some point will have to be dealt with by the US Supreme Court. I will attempt to answer as best as I can.

Currently, Virginia does not recognize same sex marriages, so your Canadian marriage in Virginia is a null and void. Thus, as a Virginia resident, you could not bring a divorce action against your ex-partner. So, in my opinion, it would be highly unlikely (I hesitate to say "impossible") that you would be criminally charged with bigamy, or that a court would find you guilty of such.

The confusion begins when we start injecting interstate and cross-border issues. What happens if you, say, move to Massachusetts? Since presumably Massachusetts would recognize the Canadian marriage, your ex-partner could conceivably bring a divorce action there, with any of the usual claims for equitable distribution. However, if you move back to Virginia, it is anybody's guess if courts there would give full faith and credit to enforce Massachusetts court orders pertaining to alimony, property division, or anything else.

It may get even more convoluted if there are issues involving federal social security benefits or other federal marriage-based issues. Under the Defense of Marriage Act (DOMA), the federal government does not recognize same-sex marriages, but that statute may be unconstitutional for a variety of reasons. Also, if you move back to Canada, your Virginia marriage would possibly be viewed as a nullity, with all of the ramifications. (I'm not a Canadian lawyer, so I haven't a clue.)

Insofar as the simple problem of Virginia changing its law (highly unlikely, in my opinion), you would not be criminally liable for bigamy because such a prosecution would violate the US Constitution's bar against ex post facto prosecutions.

Bottom line: The law regarding the issue of same-sex marriage is ever changing and has a multitude of conflicting ramifications. In my opinion, the only way to be certain about avoiding any and all remnants of your Canadian marriage coming back to haunt you would be to go back to Canada and get a divorce. Good luck.

The above is meant as a general observation based on limited facts (and uncertain law), and is not intended to be legal advice. No attorney/client relationship is created or implied.

Re: Bigomy?

You should consult with a Virginia lawyer concerning the application of the law to the facts of your particular situation. The following is general legal information on the current status of same sex marriage in Virginia and the distinction between a void and a voidable marriage. No one is able to predict the future course of this issue in Virginia.

Same sex marriages are currently violative of the public policy of Virginia.

� 20-45.2. Marriage between persons of same sex. � A marriage between persons of the same sex is prohibited. Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable. (1975, c. 644; 1997, cc. 354, 365.)

Virginia Code � 20-45.2

�A void marriage, unlike a voidable marriage, does not require an action of annulment to render it void. Without obtaining an annulment, a party to a void marriage is free to marry again. Conversely, a party to a voidable marriage must obtain an annulment, or any subsequent marriage is bigamous.�

Kleinfield v. Veruki, 7 Va. App. 183, 186, 372 S.E.2d 407, ___ (1988)