§ 10.05 DETERMINING VALIDITY OF MARRIAGES
[1] Presumption of Validity
Since the days when legislatures began to regulate marriage, formerly regulated by common law, courts across the country have struggled to determine the effect of noncompliance with the formal and substantive requirements of these statutory schemes (e.g., solemnization, licensing, age). Compare Goode v. Goode, 183 W.Va. 468, 396 S.E.2d 430 (1990) (no valid marriage when couple failed to comply with statutory marriage requisites of licensing and solemnization) with De Potty v. De Potty, 226 Ark. 881, 295 S.W.2d 330 (1956) (defect in procurement of license did not affect validity of marriage); see also Nelson v. Marshall, 869 S.W.2d 132, 136 (Mo. Ct. App. 1993) (no marriage recognized when long-term couple engaged in ceremonial marriage in hospital but ill spouse died before they could complete paperwork); Tisdale v. Tisdale, 121 Wash. 138, 141, 209 P. 8 (1922) (marriage upheld despite violation of age requirement).
In general terms, courts in different states either declare the marriage statutes directory (i.e., regulatory) or declare them mandatory. Rivera v. Rivera, 149 N.M. 66, 69, 243 P.3d 1148 (N.M. Ct. App. 2010). "Noncompliance with a directory statute " 'is attended with no consequences,' " whereas violation of a mandatory statute " 'either invalidates purported transactions or subjects the noncomplier to affirmative legal liabilities.' " State v. Rice, 174 Wn.2d 884, 895-96, 279 P.3d 849 (2012) (internal citations omitted).
Washington's Supreme Court aligned itself, early on and in principle at least, with those states holding the statute's requirements to be mandatory, declaring "that all attempts to establish the relationship, other than in accordance with the ways provided by the statute, would be void, and would be so held." McLaughlin's Estate, 4 Wash. at 589 (holding a bigamous marriage to be void).
The court also observed that the question of whether a marriage is a valid one is "so often before the courts, and involved in so many contradictions and shades of distinctions, it is impossible to reconcile them." Id. at 588. Indeed, Washington's courts have frequently strayed from the "mandatory" rule announced in McLaughlin's Estate, upholding marriages despite noncompliance with provisions of the statute. These decisions reflect a policy in favor of validating putative marriages, a policy apparently originating in moral and utilitarian concerns. See, e.g., Weatherall v. Weatherall, 63 Wash. 526, 530, 115 P. 1078 (1911) ("presumption of marriage from cohabitation is indulged in the interest of decency, and because of the law's regard for virtue as against licentiousness"); State v. McPherson, 72 Wash. 371, 375, 130 P. 481 (1913) (marriage valid although contracted in violation of age requirement, making husband liable for support of wife).
This policy gave rise to a presumption of legality. See, e.g., Donofrio v. Donofrio, 167 Wash. 80, 83, 8 P.2d 966 (1932) ("Where a marriage has been shown, whether regular or irregular, the law raises a strong presumption of its legality, . . . ."); see also In re...
