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Decree of validity for a marriage occurring prior to divorce in another marriage

On Behalf of | Sep 25, 2015 | Divorce, Family Law |

This blog discusses the law and procedure to obtain a court order declaring the validity of a marriage that was mistakenly entered into prior to the termination of another marriage. A decree of validity of marriage may resolve immigration issues that could arise in a deportation proceeding.

The statute: RCW 26.09.040

RCW 26.09.040 provides “(2) If the validity of a marriage…is denied or questioned at any time, either or both parties to the marriage …may petition the court for a judicial determination of the validity of such marriage…. …(4) After hearing the evidence concerning the validity of a marriage…, if both parties to the alleged marriage…are still living the court: (a) If it finds the marriage…to be valid, shall enter a decree of validity; (b) If it finds that: (i) The marriage…should not have been contracted because of …a prior undissolved marriage of one or both of the parties…that has not been terminated or dissolved….shall declare the marriage…invalid as of the date it was purportedly contracted; (ii) The marriage…should not have been contracted because of any reason other than those above, shall upon motion of a party, order any action which may be appropriate to complete or to correct the record and enter a decree declaring such marriage…to be valid for all purposes from the date upon which it was purportedly contracted….”

What happens if two people get married before one of them gets divorced?

What happens if two people mistakenly go through a marriage ceremony under the mistaken belief that a divorce for one of the parties has become final, when it has not? If that person’s divorce occurs later than the second wedding ceremony, can they ask the court to declare the second marriage valid? In most cases, the answer is yes; a Decree of Validity should be granted pursuant to RCW 26.09.040 (4)(b)(ii). RCW 26.09.040(4)(b)(i) does not apply if the first marriage was subsequently “terminated and dissolved.” RCW 26.09.040 (4)(a)(ii) does apply, and a decree of validity should be granted, because the reasons for invalidity listed in RCW 26.09.040(4)(i) do not include a prior marriage which was terminated after the second marriage. The Court should enter a decree of validity declaring the second marriage to be valid.

When and how can the petition be heard?

The State of Washington has a governmental interest in validating the marital status of its citizens. See, eg, H. Clark, The Law of Domestic Relations in the United States, sections 3.1 and 3.2 (second ed. 1987). A proceeding under RCW 26.09.040 may be filed even if only one of the spouses is a Washington resident. See RCW 26.09.040(1); Cf. Sasse v. Sasse, 41 Wn.2d 363, 249 P.2d 380 (1952). The other spouse can file a Joinder to the Petition. “A 90 day cooling off period is not applicable to a proceeding concerning the validity of a marriage.” See L. Rieke, “The Dissolution Act of 1973: From Status to Contact?”, 49 Wash. L. Rev. 375, 392 (1974); Saville v. Saville, 44 Wn.2d 793, 793-94, 271 P.2d 432, 433 (1954); see also State v. Denton, 97 Wn. App. 267, 271, 983 P.2d 693 (1999), quoting Feehley v. Feehley, 129 Md. 565, 99 A. 663 (1916). For that reason, it would appear that the parties can have the Ex Parte department hear their joint Motion for Decree of Validity immediately after filing the Petition.

How is the hearing conducted?

Since RCW 26.09.040(4) indicates that the Court should entered its order “After hearing the evidence concerning the validity of a marriage…,” the Court should take brief testimony from the parties. The hearing on this issue is subject to the normal rules of evidence. ER 1101 provides that the rules of evidence apply to virtually all civil proceedings, including the validity of a marriage.

What evidence is needed?

The strong public policy in favor of marriage raises a presumption in favor of validity. See, e.g., Davis v. Davis, 3 Wn.2d 448, 453-55, 101 P.2d 313, 315-16 (1940). To support this strong public policy, the Court must utilize all available presumptions in favor of validity. Thomas v. Thomas, 53 Wash. 297, 101 P. 865 (1909); Goldwater v. Burnside, 22 Wash. 215, 60 P. 409 (1900). These presumptions make it possible to validate a marriage, even when witnesses are unavailable and documents have been misplaced. See H. Clark, supra, section 3.7 (second edition 1987); and Potter v. Potter, 45 Wash. 401, 404, 88 P. 625, 626 (1907). The solemnization of a marriage (evidenced by the Marriage Certificate and the Marriage License) gives rise to a presumption that all legal requisites for the marriage existed. See, e.g., In re Slone’s Estate, 50 Wash. 86, 89, 96 P. 684, 685 (1908).


Please keep in mind that although my blogs are often informative, they are no substitute for legal advice from an attorney you have retained for consultation or representation. There are always exceptions to the general rules.