A marriage between two first cousins that was legally entered into in Virginia, and recognized as valid when the couple later moved to Arizona, was not invalidated by a subsequent amendment to the Arizona marriage law declaring such marriages to be void, the Arizona Court of Appeals decided in Cook v. Cook, Ariz. Ct. App., No. 03-0727, 1/13/05).
The court ruled that the parties' marriage was a substantively vested right, and that if the amended statute were construed to take away that right, it would run afoul of the prohibition against retroactive legislation (The parties married in Virginia in 1984 and moved to Arizona in 1989. Marriage between first cousins is valid in Virginia, but Arizona law has always provided that a marriage between first cousins in Arizona is void. However, when the parties moved to Arizona, that state's law also provided that "[m]arriages valid by the laws of the place where contracted are valid in this state." Ariz. Rev. Stat. § 25-112(A).
In 1996, Arizona lawmakers amended § 25-112(A) to add the phrase "except marriages that are void and prohibited by § 25-101." Section 25-101 is the provision that makes marriages between certain persons--including first cousins--void. Thus, under the amended language of § 25-112(A), the parties' marriage was valid in Arizona in 1989 but subsequently declared void by the 1996 amendment.
The husband filed for divorce in 1997, but then moved for a dismissal, alleging that the parties' marriage was void. The trial court denied the motion, holding that because the law prior to 1996 permitted recognition of the marriage, the amendment to § 25-112(A) could not be retroactively applied to void a marriage that was valid when the parties moved to Arizona. After a trial, the court entered various property and support orders. The husband appealed.
Significant Exception
Addressing only the validity of the parties' marriage, Judge Daniel A. Barker first confronted the question whether that validity should be determined under Virginia or Arizona law. He noted that "[w]ith a significant exception applicable here, Arizona follows the general rule that it is the law of the place where the marriage is celebrated, not the law of the place where the divorce takes place, that determines the validity of the marriage." (Citing Horton v. Horton, 198 P. 1105, 1107 (Ariz. 1921).)
That exception, Barker said, is that the power to define a valid marriage in Arizona is vested in the state's legislature and not in the legislature or judiciary of another state (or in the judiciary of Arizona). "Thus we have long recognized that the legislature of this state, notwithstanding the general rule, may declare what marriages are valid (or void) in Arizona even if the marriage pertains to persons 'who were in good faith domiciled in the state where the ceremony was performed' and the marriage is valid in that state," he explained.
Choice of Law
Barker went on to say that in examining the choice-of-law issues surrounding out-of-state marriages, it is important to consider Arizona's treatment of the principles set forth in the Restatement (2d) of Conflicts of Laws (1971) pertaining to marriage. Noting that Restatement § 283(2) invokes the element of which state had "the most significant relationship" to the parties at the time of the marriage in determining which state's law to apply, he emphasized that, as "Horton expressly holds, the Arizona legislature is free to ignore (subject to constitutional constraints) the policy considerations of another state in determining whether marriages are valid or void in Arizona regardless of whether that other state had the more significant relationship."
Commenting "that our cases instruct us to look to Arizona's statutes on the validity of marriage--even if another state has a more significant relationship--is particularly apt given the importance of marriage and the present divergent views on that subject," Barker asserted that "[u]nless constitutionally required, Arizona should not be held hostage to the policies of another state on a subject so vital as who may or may not marry." He thus concluded that it was not necessary to apply Virginia law to this case, even though Virginia had the more significant relationship to the parties at the time of the marriage.
Arizona Law
Therefore turning to the Arizona statute, Barker recognized that legislation may not disturb vested substantive rights by retroactively changing the law. Asserting that marriage is a substantive right that "goes to the bedrock of our society," he said the inquiry thus became whether the wife here had a vested right in her marriage.
Barker acknowledged that determining whether such a right (the recognition of one's marriage) has vested does not fit neatly into the jurisprudence concerning vested rights, which deals primarily with property rights. Noting, however, that the standard for determining "vested" rights has been defined as an immediate fixed right to present or future enjoyment, he said that the status of being married met that definition. "Under this standard, and by virtue of residing in Arizona for seven years when Arizona's legislature expressly authorized the marriage into which she had entered, [the wife]'s right to have her marriage recognized 'vested'," Barker declared, noting that his conclusion was also supported by the law pertaining to community property.
Prospective Application
Stressing that when the parties moved to Arizona in 1989 their marriage was valid under Arizona law, Barker held that in the context of a claim of a "void" marriage under § 25-112(A), "one's right to have an out-of-state marriage deemed valid in the state of Arizona vests upon the following conditions: (1) the marriage was valid in the state where contracted; (2) the parties to the marriage were residents of Arizona prior to the enactment of the amendment to § 25-112(A) on July 20, 1996; and (3) that during this period of residency in Arizona their marriage was validly recognized under the statutory scheme then in place in Arizona."
"Accordingly, we can give legitimate meaning to the term 'void' in the 1996 amendments by applying it to marriages from other jurisdictions in which the parties had no vested right to have their marriage recognized in Arizona," Barker said. Because the marriage here did not fall within that category, he affirmed the ruling below.
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