Until something changes regarding same-sex marriage, Pennsylvania generally has a few pretty simply criteria for getting married: be over eighteen years of age; be of “sound mind;” be sober (at least at the time the license is issued); don’t marry your first cousin (or sister, or uncle, or mom – there are fourteen different iterations in the code), and; don’t be married to anybody else.
That last factor, believe it or not, is actually not listed in 23 Pa.C.S.A. § 1302 which identifies the restrictions on issuing marriage licenses. Instead, it can be found in § 1702 which addresses marriages during the existence of a former marriage. Under Pennsylvania’s law, being a “bigamist” (which is against the law) will not actually immediately invalidate a marriage. Section 1702 offers a wordy, if not pretty simple, analysis on how to handle that situation. It assumes the “bigamous” a marriage was entered into in good faith and if it turns out someone was currently married, but mistakenly thought that they were unmarried due to death, annulment, or termination of the marriage, the the subsequent marriage will be valid effective the date that prior marriage is officially terminated.
Basically, the accidental bigamist has an opportunity to cure the defect – maybe they need to have a decree entered; maybe their former spouse faked their death or they were so estranged for so long that they thought they were dead. Whatever the case, if the couple involved wants to remain married, they will have an opportunity to address the prior marriage.
On the other hand, bigamy is justification to annul a marriage under § 3304. The effect of an annulment is to treat the marriage as though it never existed. This could have major ramifications to the determination of a marital estate (i.e. there is not one). Not unlike situations we have seen with common law marriages, where a marriage is determined to be null and void, the protections a marriage affords people instantly dissolves: people own property as “joint tenants” rather than by the “entirety”; the appreciation on an asset is simply the titled party’s asset without any right by the other to the value through marriage. In short, the marital estate ceases to exist and titled ownership dictates who retains what. For a long marriage, this could leave the “dependent spouse” with little or no assets and property rights. A civil lawsuit might be the only option to recover any financial interest.
Such is the potential for Florida Congressman Alan Grayson. Congressman Grayson is in a bitter divorce with his wife and recently filed an answer to her divorce petition seeking to have the marriage annulled on the grounds that she never divorced her first husband. If successful, Congressman Grayson would have a twenty-four year marriage immediately voided. Since there would not be equitable distribution without a marriage, he is seeking civil damages against his wife in the form of ‘”all of the money and property she has received” during their “purported” marriage.’ He is also seeking custody of their five children.
Even under Pennsylvania law, if Mrs. Grayson were to cure the defect to the marriage, because there is no intent to remain married it is unlikely she would be able to establish her marriage to Congressman Grayson as valid. Moreover, even if she were successful on that point, there would be no marital estate because the establishment of the valid marriage would be superseded by the date of separation.
Photo Credit: The Bigamist
Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; firstname.lastname@example.org, and on Twitter @AaronWeemsAtty