Divorce Law and Family Law

A state may not ban the advertising of nonprescription over-the-counter contraceptives, prohibit sales to minors under 16 years of age, or require that sales be made by licensed pharmacists only. Any state action infringing upon a fundamental liberty interest can be justified only by a compelling state interest and must be narrowly drawn to express only the legitimate state interests at stake. The right to privacy for procreation extends to those areas of life necessary and proper to exercise those rights.

The requirement of notice to both a minor’s parents prior to an abortion is not reasonably related to legitimate state interests. The court held that the requirement that a minor wait 48 hours after notification of a single parent is proper, and the requirement that both parents be notified does not reasonably further any legitimate state interest.

Under a state constitution that guarantees that all citizens will be treated equally, the state must afford some equivalent of marriage and its status to same sex couples. Our marriage statutes reflect the commonly accepted position that marriage is an institution for opposite sex couples. [...]

Fraud that goes to the essence of a marriage is a common law ground for annulment. Under the common law a marriage could be annulled for fraud going to the essence of the marriage such that the fraud directly affects the marriage relationship, rather than the fraud as would be sufficient to rescind an ordinary civil contract. [...]

The legality of a marriage between persons sui juris is to be determined by the law of the place it is celebrated. Although our statute declares a marriage between an uncle and niece to be void, our statute does not state that we cannot recognize such a relationship that is valid in another state. [...]

A court cannot declare a prior marriage dissolved and a subsequent one valid if such a declaration would have the effect of disinheriting the spouse of the earlier marriage without any offsetting advantage in terms of the legitimacy of children or the sharing in the estate by the spouse or children of the second marriage. The cases that have held the subsequent marriage to be valid are based on public policy for upholding legitimacy or favoring the participation in the decedent’s estate and preserving the validity of a marriage when there is no strong public policy that would be served by doing otherwise. [...]

The law raises a presumption of the validity of a subsequent marriage. This presumption is one of the strongest in the law. When an attempt is made to annul a marriage on the ground of a prior subsisting marriage of the other party, the presumption of validity of the subsequent marriage is stronger than and overcomes the presumption of continuance of the previous marriage. [...]

The length of time a couple spends in a state recognizing common law marriage is not used to determine whether a common law marriage exists. The proof of common law marriage requires uttering words in the present tense with the intent to establish such a relationship and holding oneself out in a general and broad way to all as being married. [...]

A common law marriage is to be formed between parties by express words of agreement with the burden of proof on the party to show by clear and convincing evidence that such was the case. Courts look upon common law marriages with great disfavor because of the ability to create mischief between the parties. There must therefore be clear and convincing evidence of its existence and the courts will review such a claim with great scrutiny. [...]

In Virginia, whether a marriage is valid is to be controlled by the law of the place where the marriage was celebrated. The court held that under these facts, the ceremony performed in Pakistan was not a marriage ceremony and therefore this was not a legal marriage. [...]