Here is the law in Virginia, admittedly it's an old case but I think it's still good law:
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[2-4] The general rule throughout the civilized world is that the law of the place of its celebration governs as to the form and ceremonies incident to marriage. Thus arises the often cited rule that a marriage valid where celebrated is valid everywhere. But to this rule there are two well recognized exceptions, as universal as the rule itself, namely: (1) Marriages deemed contrary to the laws of nature as generally recognized in Christian countries, such as polygamous and incestuous marriages; and (2) marriages positively forbidden by statute because contrary to local public policy. Kinney v. Commonwealth, 30 Gratt. (71 Va.) 858, 32 Am. Rep. 690; Greenhow v. James' Ex'r, 80 Va. 636, 56 Am. Rep. 603; Heflinger v. Heflinger, 136 Va. 289, 118 S.E. 316, 32 A.L.R. 1088; Long on Domestic Relations chapter 6, Conflict of Laws; Minor, Conflict of Laws, page 160, et seq.; Story on Conflict of Laws (8th Ed.) page 188, et seq.; Bishop on Marriage, Divorce and Separation, page 359, et seq.; Tiffany on Persons and Domestic Relations, page 46; 12 Corpus Juris, Conflict of Laws, section 43. [Page 430]
We are not concerned with the form and ceremony of the celebration of the marriage in the instant case. We are confronted with the question of the capacity of one of the parties to contract a marriage in another state, which will be binding and lawful in Virginia, and out of which relation a benefit may be claimed under a Virginia statute.
[5, 6] Marriage is very properly regarded as the foundation of human society. Every state in the Union has its own peculiar laws regulating marriage and the effect of the marriage contract upon the parties and their property. Every state has the power to determine who shall assume or occupy the matrimonial relationship within its borders. Unfortunately, there is no great uniformity in these laws, except that they are designed to promote public morality and the moral and physical development of the parties. The control and regulation of marriage for this useful purpose is left to the statutes and not to the federal government. In this control and regulation, the states are fully sovereign and are foreign as to each other. Pennegar and Haney v. State, 87 Tenn. 244, 10 S.W. 305, 10 Am. St. Rep. 648, 2 L.R.A. 703; Long on Domestic Relations, chapter 6 Conflict of Laws.
[7, 8] One state, however, cannot force its own marriage laws, or other laws, on any other state, and no state is bound by comity to give effect in its courts to the marriage laws of another state, repugnant to its own laws and policy. Otherwise, a state would be deprived of the very essence of its sovereignty, the right of supremacy within its own borders. Such effect as may be given by a state to a law of another state is merely because of comity, or because justice and policy may demand recognition of such law. Such recognition is not a matter of obligation. Minor, Conflict of Laws, chapter 1; 11 American Jurisprudence, Conflict of Laws, sections 4, 5, 6 and 126.
It is in recognition of the principle of comity or of justice, that, in testing the validity of a foreign marriage, the law of the place of the celebration of the marriage, as applied to the marriage in question, is usually adopted as a [Page 431] law of the forum, unless such law is contrary and opposed to the statutes or public policy of the forum state.
[9] "The Legislature is fully competent to declare what marriages shall be void in its own state, notwithstanding their validity in the state where celebrated, whether contracted between parties who were in good faith domiciled in the state where the ceremony was performed, or between parties who left the state of domicile for the purpose of avoiding its statute, when they come or return to the state. * * * This right in the Legislature is generally conceded by all the courts which have pronounced upon the subject." Osoinach, Administrator, etc. v. Watkins, 235 Ala. 564, 180 So. 577, 581, 117 A.L.R. 179, with cases cited and annotation on page 186.
The pages of the reports and textbooks are replete with statements of the general rules, exceptions, and qualifications, which apply to the varying circumstances under which conflicts between lex fori and the lex loci have arisen. In our citations and references, we shall endeavor to confine ourselves as closely as possible to the peculiar circumstances of this particular case.
Polygamy is now prohibited in all of the States and territories of the American Union. It is repugnant to the moral sense of Christendom, contrary to public policy, and is made criminal by statutes. In Virginia and West Virginia, the offense of bigamy is punishable as a felony. Virginia Code 1936, section 4538; West Virginia Code 1937, section 6056.
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Toler v. Oakwood Smokeless Coal Corp., 173 Va. 425, 429-431, 4 S.E.2d 364, ___ (1939)
BTW, the law is different when it comes to divorces. There, the principle isn't comity, but full faith and credit. |
