COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, McCullough and O’Brien Argued by teleconference

DEBORAH MacDOUGALL

v. Record No. 1981-14-4

RICHARD S. LEVICK OPINION BY JUDGE STEPHEN R. McCULLOUGH RICHARD S. LEVICK FEBRUARY 23, 2016

v. Record No. 1982-14-4

DEBORAH MacDOUGALL

UPON A REHEARING

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Randy I. Bellows, Judge James Ray Cottrell (Joh n K. Cottrell; Cottrell Fletcher Schinstock Bartol & Cottrell, on briefs), for Deborah MacDougall. Edna Ruth Vincent (Richard J. Colten; James A. Watson, II; Colleen M. Haddow; Mary C. Hu ff; Colten Cummins Watson & Vincent, P.C., on briefs), for Richard S. Levick.

We consider a number of issues in these consolidated appeals. 1 Deborah MacDougall challenges the trial court’s ruli ngs with regard to wh ether she contracted a valid marriage with Richard S. Levick and the enforceability of the pa rties’ marital agreement. Levick challenges the court’s refusal to compel reimbursement of pendente lite support and attorneys’ fees following its

1 To avoid piecemeal opinions on interrelated an d consolidated cases, we vacate our prior opinion and reissue this single co nsolidated opinion as the cont rolling opinion for both cases.PUBLISHED- 2 - declaration that the marriage was vo id. Upon rehearing, and for the reasons note d below, we affirm

the trial court.

BACKGROUND

I. T HE PARTIES HOLD A MARRIAGE CEREMONY WITHOUT A MARRIAGE LICENSE Levick and MacDougall decided to get married at “an extraord inarily busy time.” They had just purchased a home, and the wedding planning occurred whil e they were busy packing their belongings in anticipation of the move. At the same time, they were still caring for two young children, and Levick wa s busy running his business. The couple set their wedding date for December 21, 2002. The wedding ceremony was to take place at their new home in McLean, Virginia. Neither Levick nor MacDougall thou ght about obtaining a marriage license because

neither realized that th ey needed one. Rabbi Binyamin Raviv Biber had never perfor med a wedding in Virginia. He registered with a Virginia circuit court so he could officiat e on this occasion. On the wedding date, Rabbi Biber checked final preparations and noticed that there was no marriage li cense. This “was a surprise” to him because he had never performed a wedding “where the ma rriage license wasn’t actually there.” The rabbi and the parties decided to “deal with that later because” everyone was “ready to do the wedding. ” Rabbi Biber instructed the parties to deliver a marriage license for his signature, as soon as possible, once they obtain ed one. The ceremony we nt on as scheduled. Approximately two weeks later, on January 6, 2003, the couple went to the Fairfax County courthouse and obtained a marriage license. That same day, Levick mailed it, via FedEx, to Rabbi Biber at his Maryland address. Rabbi Biber wa s traveling at the time but signed the marriage license upon his return on January 21, 2003. He listed the marriag e date as January 21, 2003, the date he signed it. He listed McLean, Virginia, as th e place of marriage. Neither Levick nor MacDougall was present when Rabbi Biber signed the marriage license, and Rabbi Biber performed- 3 - no other ceremony for the couple. Ov er the years that followed, both parties assumed th at they were

husband and wife.

II. T HE PARTIES LITIGATE DIVORCE AND ANNULMENT MacDougall filed for divorce on March 21, 2011. She attached to her divorce complaint a marital agreement dated Ju ly 20, 2009. This mar ital agreement stated that it “shall form the foundation of a divorce or separation agreement, should either come to pass” and, among other clauses, stipulated that Levick would pay M acDougall annual spousal su pport of $150,000. MacDougall sought an award of pendente lite support in accord with this agreement. On September 16 and November 2, 20 11, the court ordered pendente lite support for MacDouga ll in the amount of $8,000 per mont h. Following protract ed litigation over the validit y of the marital agreemen t, the court ruled, on August 27, 2012, that Levi ck had made a knowing, ex plicit, voluntary, and valid waiver of his right to contest the marital ag reement. The trial cour t relied on counsel’s statements at a hearing on February 17, 2012, that Levick was withdrawing hi s challenges to the agre ement and that he would “live with the agreem ent, as must Ms. MacDougall.” The court vacated the prior pendente lite support orders and entered a new order incorpora ting the marital agreement. This order required Levick to pay monthly su pport of $12,500 ($150, 000 annually). On February 27, 2013 , the litigation took a sharp turn when Le vick filed a petition for declaration of marriage status. He contended that the parties’ failure to follow statutory prerequisites meant that they never lawfully married . He argued that ther e was no marriage license when the rabbi performed the cer emony, and after the parties obta ined a license, they did not solemnize a marriage. He argued th at the invalidity of the marriage required the court to set aside the marital agreement. He moved for leave to amend his pleadings to re flect “newly discovered evidence of the nullity of the ma rriage.” Levick explained that he had always assumed that he was- 4 - lawfully married but began to investigate further when he and his attorney s noticed the discrepancy between the date that the marriage ceremony took place and the date that Rabbi Biber listed on the

certificate. On March 1 5, 2013, over MacDougall’s objection, the trial co urt granted Levick leave to amend. On April 12, 2 013, Levick filed a motion to suspend support payments. On August 23, 2013 , the court granted MacDougall’s motion for pendente lite attorneys’

fees in the amount of $191,288. On October 10, 2013, followin g an evidentiary hearing, the court entered an order holding

that the marria ge was void ab initio because the parties had not complied with the statutory requirements for contracting a lawful marriage in Vi rginia. The court declin ed to resolve at that time the other relief Levick sought. In the wake of this ruling, on October 3, 2014, the court held that the marital agreement was invalid, predicated as it was on the parties’ mistaken be lief that they were ma rried. The court held

that Levick’s earlier waiver did not foreclose hi s new challenge, explaining that, because Levick was not aware of the potential inva lidity of the marriage on Februa ry 17, 2012, any waiver of the right to challenge the marital ag reement on the absence of a marri age would not have been knowing and voluntary. The cour t suspended, effective November 21 , 2013, any pendente lite support orders. The court declined to order MacDougall to reimburse Le vick for past support payments, although it observed that it had the discretion to do so. Finally, on Au gust 15, 2014, the court ordered Levick to pay additiona l attorneys’ fees in the am ount of $100,000 – rejecting MacDougall’s request for $513,252 . MacDougall received a total of $291,288 in attorneys’ fees and $304,500 in sup port during the course of the litigation. These consolidated appeals followed.- 5 - ANALYSIS

I. T HE TRIAL COURT WAS WELL WITHIN ITS DISCRETION WHEN IT ALLOWED L EVICK TO AMEND HIS PLEADINGS TO CHALLENGE THE VALIDITY OF THE MARRIAGE

. MacDougall argues that Levick should not ha ve been granted leave to amend to challenge the validity of the marria ge. She notes that the am endment followed extensive and cos tly litigation. She also points out that, from the litigation’s in ception, Levick had full kn owledge of th e facts that gave rise to the claim on which his amendment wa s based. She argues that allowing Levick to amend, under those circumstances, di d not serve the “ends of justice.” Rule 1:8 provides, in relevant part, that “[n]o amendments sh all be made to any pleading after it is filed save by leave of court. Leave to amend shall be liberally granted in furtherance of the ends of justice.” “Amendment serves the underlying policy of litigating the actual controversy between the parties, rather than the approximation of it that was initially pleaded.” Kent Sinclair & Leigh B. Middleditch, Jr., Virgin ia Civil Procedure § 11.2[A], at 813 (6th ed. 2014). “[T]he decision to permit amendments of pleadings rests in the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion.” Adkins v. Dixon, 253 Va. 275, 279, 482 S.E.2d 797, 800 (1997).

We find no abuse of discretio n. At the time Levick moved to amend, the lit igation, while extensive, had not reached anything close to fi nality. There was no prejudice to MacDougall’s ability to investigate and litigate th e facts alleged in Levick’s amen ded pleading. Moreover, “public policy forbids that a [party ] should be barred from bringing a suit to declar e null a marriage contract which never had any valid existence. ” Heflinger v. Heflinger, 136 Va . 289, 301, 118 S.E. 316, 320 (1923). With that threshold question resolved, we proceed to the merits of MacDougall’s appeal.- 6 - II. A PPLICABLE STATUTES AND LONGSTANDING CASE LAW POINT UNMISTAKABLY TO THE CONCLUSION THAT NO MARRIAGE IS CREATED WHEN THE PARTIES CELEBRATE A MARRIAGE WITHOUT A MARRIAGE LICENSE OR OBTAIN A LICENSE BUT DO NOT TIMELY CELEBRATE

. A. Historical background of our marriage statutes “Marriage is very properly regarded as th e foundation of human society.” Toler v.

Oakwood Smokeless Coal Co rp., 173 Va. 42 5, 430, 4 S.E.2d 364, 366 (1939). Aside from narrow constitutional constraints, the legislature “has the power to determine who shall assume or occupy the matrimonial relationship within its borders.” Id. The status of marriage . . . differs from other contracts in this, that the rights, obligations or duties arising from it are not left entirely to be regulated by the agreement of the parties, but are to a certain extent matters of muni cipal regulation over which the parties have no control by any declaration of their will. Herring v. Wickham, 70 Va. (29 Gratt.) 628, 63 5 (1878) (quoting Duntze v. Levett (Dec. 21, 1816), in James Fergusson, Reports of Some R ecent Decisions by the Consistorial Court of Scotland App. at 397 (1817)). Marriage, as creating the most impor tant relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it create s, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution. Maynard v. Hill, 125 U.S. 190, 205 (1888). The importance of marriage prompted legisla tive attention early in Virginia’s history. Indeed, “the formal validity of marriage took a substantial share of the legislation” promulgated before independence. Dominik La sok, Virginia Bastar dy Laws: A Burdensome Heritage, 9 Wm. & Mary L. Rev. 402, 414 (1967); se e Offield v. Davis, 100 Va. 250, 25 3-55, 40 S.E. 91 0, 911 (1902) (detailing statutory marriage forma lities enacted from 1631 to 1849). One early law, proclaimed in- 7 - 1628, forbade marriage “‘without lycence,’ or asking in church.” 1 Statutes at Large in Virginia 130 (William Waller Hening ed., 2d ed. 1823). 2 This general requirement of license or banns

remained in force until 1 849, see Offield, 100 Va. at 253-55, 40 S. E. at 911, wh en the General Assembly enacted a revised Code to specify that “[e]very marriage in this state shall be under a license, and solemnized in the manner herein pr ovided,” Code tit. 31, ch. 108, § 7 (1849). That statute’s requirements remain materially unchanged in our current Code § 20-13. For nearly its entire history, from the earli est colonial times down to the present day, the legislature has spelled out what formalities are required to contract a lawful marriage in Virginia. It has long stated what sorts of formal defects will not affect a marriage’s validity. See Code § 20-31; Code tit. 31, ch. 108, § 7 (1849) (addr essing a marriage performed by a celebrant professing, but lacking, authority to solemnize marriages). B. Lawful marriage is presumed. “The public policy of Virginia . . . has been to uphold the valid ity of the marriage status as for the best interest of society, except where marriage is prohibited between certain persons.” Needam v. Needam, 183 Va. 681, 686, 33 S.E.2d 288, 290 (1945) . “The presumption of marriage from cohabitation apparently matrimonial is on e of the strongest presumptions known to the law.” Eldred v. Eldred, 97 Va. 606, 625, 34 S.E. 477, 484 (1899). Further, a properly recorded, returned, and certified marriage certificate “shall be prima facie evidence of the facts therein set

forth in all courts of this Commonwealth.” C ode § 20-20. However, th ese are not conclusive presumptions. A party can defeat the presumpti on of lawful marriage but only by “clear, cogent,

2 This “asking in church” was also known as “publication of banns.” See, e.g., Act of Mar. 1, 1819, ch. 106, reprinted in 1 Statutes at Large, supra, at 393-94. “The practice was to announce the marriage, usually on three successi ve Sundays preceding the nuptials, that any objection on the ground of relations hip or other disability might be brought forward.” 1 George Elliott Howard, A History of Matrimonial Ins titutions 361 (1904); see also Thomas Jefferson, Notes on the State of Virginia 193-94 (2d Am. ed. 1794).- 8 - and convincing evidence.” Rahnema v. Rahnema, 47 Va. App. 645, 664, 626 S.E.2d 448, 458 (2006) (quoting 2 John W. Strong, McCormick on Evidence § 344, at 449 (5th ed. 1999)). C. Virginia law requires a license, followed by solemnization, to contr act a lawful marriage. Code § 20-13, titled “License and solemni zation required,” provides that “[e]very marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided.” This statute estab lishes two requirements for a va lid marriage: a license and solemnization. Code § 20-13 does not expres sly state that the license must precede solemnization, but that is its most reasonable reading. A license “confer[s] a right to do something which otherwise one would not have the ri ght to do; it is a prere quisite to the right to . . . do certain acts.” Commonwealth v. Shell Oil Co., 210 Va. 163, 166, 169 S.E.2d 434, 437 (1969). By analogy, where such a license is requ ired, one cannot drive, hunt, or practice law or medicine before acquiring the necessary license. By the same token, one cannot marry before acquiring a marriage license. A marriage licen se “grants a couple permission to marry.” Marriage license, Black’s Law Di ctionary (10th ed. 2014). Code § 20-13 thus indicates that, to contract a lawful marriage in Virginia, the parties must obt ain a license and, afterward,

solemnize their union un der that license. To the extent there might be any doubt on the subject, however, other st atutes dispel it. Most significantly, Code § 20-28 provides that, “[i]f any person knowingly perform the ceremony of marriage without lawful license, or o fficiate in celebrating the rites of marriage without being authorized by law to do so, he shal l be confined in jail not exceeding one year, and fined not exceeding $500.” By attaching a criminal penalty to the performance of a ceremony of marriage without a license, the General Assembly cl arified its intention that a lawful marriage be contracted by solemnization af ter a license has been obtained. See Offield, 100 Va. at 254, 40 S.E. at 911 (construing a forerunne r statute to similar effect).- 9 - Code § 20-14.1 bolsters this conclu sion. It provides as follows: Every marriage license issued under § 20-14 shall constitute authority for a period of only sixty days from the date of issuance for the solemnization of a marriage of the licensees . Whenever such sixty-day period shall have elapsed without the solemnization of a marriage of the licensees , the license shall expire. The provisions of this section sh all not be construed to prevent licensees from applying for or receiving an additional license, either before or after expiration of any license, bu t no new license shall be issued except in complia nce with all provisions of law applicable to the issuance of a license in the first instance. Code § 20-14.1 (emphasis added). This statute plai nly contemplates a specifi c order: the parties must obtain a license and, within the sixty days following, solemnize their union. If a ceremony does not occur within that time, the license expires. At that point, if the parties still wish to be married, they must apply for a new license. Finally, “[t]he clerk issuing any marriage li cense shall require the parties contemplating marriage to state, under oath, the information re quired to complete the application for marriage license,” Code § 20-16, and “[e]ve ry person who officiates at a marriage ceremony shall certify to the facts of marriage and file the record in duplicate with the officer who issued the marriage license within five days after the ceremony . . . ,” Code § 32.1-267(C). These statutes further make plain the General Assembly’s intent th at a license must precede the solemnization

ceremony. When MacDougall and Levick held their marriage ceremony, it was not “under a license.” The clear, cogent (i ndeed, undisputed) evid ence is that they obtained a license only after holding the ceremony. As our statutes indicate, 3 this does not conform to the requirements of Virginia law.

3 Although we do not discuss them in detail, we do not overlook the language of other related statutes, which further supports the conc lusion that the parties must obtain a marriage license before holding the marriage ceremony. See, e.g., Code § 20-14 (“Every license for a- 10 - D. The parties never solemnized a marriage “under a license.” MacDougall contends that the parties did, in fact, solemnize thei r marriage after they obtained a license. She argues that “the fact of mailing the license to the Rabbi coupled with the prior understanding that it would be an act communicating their assent to marriage also was

sufficient to constitute a solemnization after the issuance of the license.” She further argues that no Virginia authority defines “solemnization” an d maintains that submitting the license to the rabbi, having already exchanged vows before hi m, was solemnization as the parties chose to

define it. In analyzing a statute, we give each word “its ordinary meaning, given the context in

which it is used.” Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (quoting Dep’t of Taxation v. Ora nge-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980)). To “solemnize” means “[ t]o enter into (a marriage, contract, etc.) by a formal act, usu[ally] before witnesses.” Sole mnize, Black’s Law Dictionary, supra; see also Webster’s Third New International Dictionary 21 68 (unabr. 2002) (defining “solemnize” as “to perform with pomp or ceremony or according to legal forms; esp : to unite a coupl e in (marriage) with religious ceremony : celeb rate (a marriage) with religious rites”). As our Supreme Court has noted, “[t]he state has no official interest in the place where a marriage occurs, or in the ceremony or ritu al which surrounds the act.” Cramer v. Commonwealth, 214 Va. 561, 565, 202 S.E.2d 911, 914 (1974) (per curiam). Under Virginia law, “[n]o particular form of marriage ceremony is required.” Alexander v. Kuykendall, 192 Va.

marriage shall be issued by the clerk or deputy clerk of a circuit co urt of any county or city.” (emphasis added)); Code § 20-30 (“The clerks of th e circuit courts . . . ar e authorized to issue marriage licenses . . . to any persons desiring to be married on any of the government reservations of this Commonwealt h, . . . .” (emphasis added)).- 11 - 8, 11, 63 S.E.2d 746, 748 (1951). Indeed, acceptable practice varies from, for example, formal church ceremonies, to relaxed beac hfront solemnizations, to (as he re) celebrations in the home. Mailing a license via express mail for a signatu re when the parties are not even present

does not constitute “solemnization” under any reasonable definition of the term. 4 E. Virginia’s statutory formalities for contracting a lawful marriage are mandatory, not directory. In Offield, 100 Va. at 251, 40 S.E. at 910, our Supreme Court considered whether or not a contract, if prov ed, entered into between a man and a woman . . . by which they mutua lly agreed to be come husband and wife, without any celebra tion and without license , constitutes a valid marriage in this State . . . . In other words, is a common law marriage entered into in this State valid? The Court answered that question in the negative, observi ng that Virginians, “from the passage of our earliest statutes on the subject of marriage,” had regarded the statutory formalities as mandatory rather than directory. Id. at 260, 40 S.E. at 913. The Court acknowledged that this holding “may result in hardship in some cases” but took the view that “the lesser injury will come from an adherence to the statutory requisi tes than otherwise.” Id. at 261, 40 S.E. at 914 (quoting In re Estate of McLaughlin, 30 P. 651, 659 (Wash. 1892)). The Court observed that “[o]ur marital laws are plain a nd simple, not difficult to understand by the humblest citizen.” Id. at 262-63, 40 S.E. at 914 (quoting Eldred, 97 Va. at 629, 34 S.E. at 485). The Court concluded, “no marriage or attempted marriage, if it took place in this State, can be held valid here, unless it has been shown to have been under a license, and solemnized according to our statutes.” Id. at 263, 40 S.E. at 914. Although Offield dealt with f acts different from those now before us, the

4 We reached a similar conclusion in Davidson v. Davidson, No. 2356-08-3, 2009 Va. App. LEXIS 313, at *4-5 (Va. Ct. App. July 14, 2009) (“The marriage license presupposes a ‘marriage ceremony’ solemnizing the union. And whatever formalities the ceremony requires, at the very least it requires the atte ndance of both the prospective br ide and groom . . . .” (quoting Code § 32.1-267(C))).- 12 - underlying rationale of the decisi on makes clear that, to lawfully marry in Virginia, a couple must follow the requirements of the statute. F. The parties never married under Virginia law. MacDougall counters that the trial court er red in breaking down the process they employed into “unrelated, discrete events,” rather than viewing it as a continuum. But a simple sequence of events is precisely what Code § 20-13 requires. Fi rst, the parties must obtain a marriage license. Second, the pa rties must participate in a ceremony of some kind, however brief or formal, to solemnize their marriage. “Marital status, of course, arises not from th e simple declarations of persons nor from the undisputed claims of litigants. It is rather crea ted and dissolved only according to law.” Hames v. Hames, 316 A.2d 379, 382 (Conn. 1972) (citation omitted). And we “can but construe the law as it is written,” Eldred, 97 Va. at 629, 34 S.E. at 486, and “[t]here is no authority for the parties by their actions outside of the la w to invest the courts with power to treat a relationship as a lawful marriage,” Shoustari v. Zamani, 39 Va. App. 517, 520, 574 S.E.2d 314, 315 (2002) (quoting Kleinfield v. Veruki, 7 Va . App. 183, 190, 372 S.E.2d 407, 411 (1988)).

“It is not for this court to devise means of making marriage difficu lt. It is our duty, however, to recognize the law as it exists.” Hames, 316 A.2d at 385. Applicable statutes and cases all point to the inescapable conclusion: the parties’ failure to follow the formal requirements to contract a lawful marriage means th at they never married under Virginia law. It is undisputed that MacDougall and Levick did not have a license when they held their marriage ceremony; thus, their marriage ceremony was not “ under a license.” Code § 20-13. When they did obtain a license, several week s later, they did not perfor m any kind of solemnization. Virginia’s statutory formalities for contracting ma rriage are mandatory – not merely aspirational. It is clear that the parties did not fulfill thes e requirements and, therefore, did not contract a- 13 - lawful marriage. Accordingly, we affirm the tr ial court’s decree that the parties never married under Virginia law. 5

III. N EITHER THE CURATIVE STATUTE NOR EQUITABLE DOCTRINES COMPEL A DIFFERENT OUTCOME

. A. Code § 20-31, the cura tive statute, does not apply. The General Assembly has enacted the following curative statute, titled “Belief of parties in lawful marriage validates certain defects”: No marriage solemnized under a license issued in this Commonwealth by any person profe ssing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity ther eof be in any way affected on account of any want of authority in such pe rson, or any defect, omission or imperfection in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of th em, that they have been lawfully joined in marriage. Code § 20-31. The trial court’s in terpretation of this statute is a question of law, which we

review de novo . See Gilliam v. McGrady, 279 Va. 703, 708, 691 S.E.2d 797, 799 (2010). For several reasons, we conclude that this statute does not apply. Fi rst, the parties did not solemnize their marriage “under a license” – a prerequisite to the application of this statute. Second, the defects Code § 20-31 aims to cure, “any want of authority” in th e person performing the marriage and “any defect, omission or imperfection in [the marriage] licen se,” are not present

here. 6 Nothing in the record indicates that Ra bbi Biber lacked the authority to perform weddings, and the license was not defective in any way – there was no license when the

5 Although the decisions are sparse, other cour ts facing a similar situation have reached the same conclusion. See, e.g., In re Kha lil, No. 2001/183, 2003 U.S. Dist. LEXIS 6229 (D.V.I. Apr. 4, 2003) (per curiam); Pinkhasov v. Peto cz, 331 S.W.3d 285 (Ky. 2011); Kisla v. Kisla, 19 S.E.2d 609 (W. Va. 1942) (applying a West Virginia statute derive d and materially indistinct from our Code tit. 31, ch. 108, § 7 (1849)).

6 MacDougall argues that the pa rties relied on the rabbi’s auth ority to sign a subsequently issued marriage license when, in fact, he la cked the authority to do so. Code § 20-31- 14 - ceremony was performed. When the parties did obt ain a license, there was no defect associated with it. The medicine in Code § 20-31’s cabinet is not formulated so as to spring to life a marriage that, in the eyes of Virginia law, never was. B. The marriage was voidable rather than void ab initio

. MacDougall, contending that he r marriage is voidable rather than void, offers a final line of defense by invoking equitable doctrines. Spec ifically, she argues that laches and estoppel preclude Levick from challenging the marriage’s validity. Levick, in contrast, argues that a purported marriage like this one is void ab initio

. Initially, we agree with MacDougall’s conten tion that the defect here rendered the marriage voidable. In determini ng whether the marriage is void ab initio or voidable, Code § 20-89.1 sheds little light on the void/void able distinction, because it provides that “[w]hen a marriage is alleged to be void or voidable for any of the causes mentioned in §§ 20-13 . . . and upon proof of the nullity of the marriag e, it shall be decreed void by a decree of annulment.” (Emphasis added). This code sec tion does not specify that a marriage like this one

is void “ ab initio” or “voidable,” only that if the marriage is contracted in violation of Code § 20-13, it is to be held “voi d” by decree of annulment.

The common law drew a distinction betw een “canonical” impediments, that is, impediments to marriage drawn from church or canon law, such as consanguinity, affinity, and impotence, which rendered a marriage voidable, a nd “civil” impediments, such as bigamy and lack of mental capacity, which rendered a marriage void ab initio . Toler, 173 Va. at 432, 4 S.E.2d at 367. Levick argues that the impediment he re is not canonical and, therefore, it must be a civil one that renders the marriage void ab initio . The General Assembly, however, has

contemplates the want of author ity in an officiant who, while “professing to be authorized to solemnize” the marriage, has not actually been aut horized to “celebrate the rites of matrimony in this Commonwealth” under Code §§ 20-23, -25, or -26.- 15 - comprehensively regulated marriage by statute, incl uding regulations directed at what previously constituted canonical impairments. See Code § 20-38.1 (listing marriages, such as between brother and sister and others, th at are prohibited); Code § 20-45.1 (specifying that such marriages under Code § 20-38.1 are void). We are re luctant to declare a marriage void ab initio for failing to comply with Code § 20-13 when the Genera l Assembly has not taken that step. This

conclusion is consistent with the holdi ng in Payne v. Commonwealth, 201 Va. 209, 211, 110 S.E.2d 252, 254 (1959), where the Supreme Court held that In Virginia there is no statutory provision declaring that marriages involving persons under the age of consent are either void or voidable, and there are no Virgin ia cases so holding. Under the circumstances here, the marriage of the parties was voidable only and not void. . . . The parties are husband and wife unless and until the marriage is annulled. According to Bishop’s influential treatise, 7

7 Many decisions of the Supreme Court cite Bish op’s treatise as author itative. See, e.g., Wallihan v. Hughes, 196 Va. 117, 123, 82 S.E.2d 553, 558 (1954) (citing 1 Joel Prentiss Bishop, New Commentaries on Marriage , Divorce, and Separation § 1261, at 539 (1891) [hereinafter “Bishop, Marriage, Divorce, and Separation” ]); Arrington v. Arrington, 196 Va. 86, 93, 95, 82 S.E.2d 548, 552-53 (1954) (citing 1 Bishop, Marriage , Divorce, and Separation § 1261, at 539; 2 Bishop, Marriage, Divorce, and Separation § 696, at 286); Anderson v. Anderson, 196 Va. 26, 29-30, 82 S.E.2d 562, 565 (1954) (overruled by Petachenko v. Petachenko, 232 Va. 296, 350 S.E.2d 600 (1986)) (citing 1 Bishop, Marriage, Di vorce, and Separation § 15, at 7); Foster v. Foster, 195 Va. 102, 106, 108-09, 77 S.E.2d 471, 474- 75 (1953) (citing 2 Bishop, Marriage, Divorce, and Separation §§ 858, 1161, at 349, 45 3); Shelton v. Stewart, 193 Va. 162, 166, 67 S.E.2d 841, 843 (1951) (citing 2 Bishop, Marriage , Divorce, and Separation § 696, at 286); Menefee v. Commonwealth, 189 Va. 900, 910, 55 S.E.2d 9, 14-15 (1949) (citing 2 Bishop, Marriage, Divorce, and Sepa ration § 1663, at 634); Haskins v. Haskins, 188 Va. 525, 530, 534, 50 S.E.2d 437, 439, 441 (1948) (citing 2 Bishop, Ma rriage, Divorce, and Separation §§ 340, 365, 370, 1359-60, at 165, 174-75, 520); Needam v. Needam, 183 Va. 681, 686, 33 S.E.2d 288, 290 (1945) (citing 1 Bishop, Marriage, Divorce, and Separation §§ 571-72, 582, at 244-45, 249-50); Pretlow v. Pretlow, 177 Va. 524, 538, 14 S.E.2d 381, 385 (1941) (citing 2 Bishop, Marriage, Divorce, and Separation § 803, at 327); Ho lt v. Holt, 174 Va. 120, 123, 5 S.E.2d 504, 505 (1939) (citing 2 Bishop, Marriage, Divorce, and Separa tion §§ 1359-60, at 520-21); Toler, 173 Va. at 429, 432, 4 S.E.2d at 366-67 (citing 1 Bishop, Ma rriage, Divorce, and Separation §§ 258, 267, 841 at 107, 113, 359-60); Martin v. Martin, 166 Va. 109, 117, 184 S.E. 220, 224 (1936) (citing 2 Bishop, Marriage, Divorce, and Separation § 1351, at 517-18); Counts v. Counts, 161 Va. 768, 775, 172 S.E. 248, 250 (1934) (citing 2 Bishop, Marr iage, Divorce, and Se paration § 527, at 234-35); Kirby v. Kirby, 159 Va. 544, 555-56, 559, 166 S.E. 484, 487-89 (1932) (citing 2- 16 - A marriage is termed void when it is good for no legal purpose, and its invalidity may be mainta ined in any proceeding, in any court, between any parties, whet her in the lifetime or after the death of the supposed husband a nd wife, and whether the question arises directly or collaterally. 1 Joel Prentiss Bishop, New Comm entaries on Marriage, Divorce, and Separation § 258, at 107 (1891). In contrast, [a] marriage is voidable when in its constitution there is an imperfection which can be inquire d into only, during the lives of both of the parties, in a proceedi ng to obtain a sentence declaring it null. Until set aside, it is practically valid; when set aside, it is rendered void from the beginning. Id. at § 259, at 107-08. Bishop’s summary is consistent with Virginia law. In Toler, the Supreme Court embraced the passage we cite above, noting that [a] void marriage confers no le gal rights, and, when it is determined that the marriage is vo id, it is as if no marriage had ever been performed. . . . A voi dable marriage differs from a void marriage in that it may be afterwar ds ratified by the parties . . . and usually is treated as a valid marriage until it is decreed void

.

Bishop, Marriage, Divorce, and Separati on §§ 1351, 1359-61, at 517-18, 520-21); Barnes v. American Fertilizer Co., 144 Va. 692, 710, 130 S.E. 902, 907 (1925) (citing 2 Bishop, Marriage, Divorce, and Separation § 884, at 356-57); Harman v. Harman, 139 Va. 508, 541-42, 124 S.E. 273, 282-83 (1924) (citing 2 Bishop, Marriage, Divorce, and Separa tion § 304, at 148-49); Kirn v. Kirn, 138 Va. 132, 134, 120 S.E. 850, 851 (1924) (overruled by Haskins, 188 Va. 525, 50 S.E.2d 437) (citing 2 Bishop, Marriage, Divorce, and Separation § 340, at 165); Cumming v. Cumming, 127 Va. 16, 25, 29-30, 102 S.E. 572, 574, 576 (1920) (citing 1 Bishop, Marriage, Divorce, and Separation §§ 1261, 1277, at 539, 5 46; 2 Bishop, Marriage, Divorce, and Separation § 663, at 276); Shelton v. Shelton, 125 Va. 381, 383, 99 S.E. 557, 557 (1919) (citing 2 Bishop, Marriage, Divorce, a nd Separation §§ 698, 704, at 286-87, 289); Craig v. Craig, 118 Va. 284, 292, 87 S.E. 727, 730 (1916) (citing 1 Bis hop, Marriage, Divorce, and Separation § 1757, at 730); Owens v. Owens, 96 Va. 191, 195-96, 31 S. E. 72, 74 (1898) (citing 1 Bishop, Marriage, Divorce, and Sepa ration § 1569, at 651-52; 2 Bi shop, Marriage, Divorce, and Separation §§ 269, 304, at 134-35, 148-49); Hutc hins v. Hutchins, 93 Va. 68, 71, 24 S.E. 903, 904 (1896) (citing 1 Bishop, Marriage, Di vorce, and Separation § 1587, at 659).- 17 - 173 Va. at 432, 4 S.E.2d at 367 (emphasis added) (quotin g Frank H. Keezer, The Law of Marriage and Divorce, § 24, at 16 (1906)); see also Alexander, 192 Va. at 13, 63 S.E.2d at 748-49. 8 Whether void or voidable, either way, a declar ation that an attempted marriage like this one is void results in a ju dicial declaration that the marriage is a nullity. 9 The difference lies in who can challenge the marriage and when such a challenge can be raised. The General Assembly has not declared a ma rriage like this one to be void ab initio . It has done so for bigamous marriages. Code § 20-43 (“All marriag es which are prohibited by law on account of either of the parties having a former wife or hus band then living shall be absolutely void, without any decree of divorce, or other legal process.”). This legislat ive silence suggests a voidable marriage rather than one that is void ab initio . See Marblex Design Int’l, Inc. v. Stevens, 54 Va. App. 299, 304, 678 S.E.2d 276, 278 (2009) (stating th at a sham/green card marriage is not included among the statutes specifying which marr iages are void, therefore, such a marriage is voidable). A number of other courts have similarly found legislative silen ce dispositive in concluding that formal defects in contracting a marriage rendered the marriage voidable rather

than void ab initio . See Barrons v. United States, 191 F .2d 92, 98-99 (9th Cir. 1951); Hames, 316 A.2d at 385; Dodrill v. Dodrill, 2004 Ohio App. LEXIS 1977, at *9 (Ohio Ct. App. 2004).

8 The parties have not raised the question of whether and how ratification would work in a situation like this one. Cf. Toler, 173 Va. at 432, 4 S.E.2d at 367. Accordingly, we do not address this question.

9 By statute, not all voidable marriages result in a retrospective d eclaration of voidness. See Code § 20-45.1(b) (providing that marriages solemnized when eith er party lacked capacity to consent by virtue of mental incapacity or infirmity are void from the date so declared). Since the defect at issue here goes to the creation of the marriage, the declaration of voidness is retrospective.- 18 - Like those courts, we conclude that the part ies’ purported marriage was voidable, not void ab

initio

. 10 The consequences of a contrary holding do not escape our notice. If such marriages are

deemed void ab initio , anyone could challenge the validity of the marriage, at any time. Thus, for example, disgruntled heirs could preclude a mother from inheriting under the intestacy statutes (or receiving her elective share under a will) if the ceremony preceded the marriage license. An insurance company could seek to shed life insurance, workers’ compensation, or health insurance obligations by atta cking the validity of a marriage. Children could be portrayed as illegitimate even though th ey and their parents thought the marriage was a valid one. 11 Although we find ourselves constrained by our exis ting statutory scheme to declare the marriage void upon a challenge by the husband to its validit y, we see little reason to take a further and highly disruptive step by holding such marriages void ab initio , particularly when nothing in Virginia statutes or precede nt compels that conclusion.

10 Levick contends that our finding that such a purported marriage is vo idable rather than void contradicts Offield, which he contends ruled all marriages not properly solemnized under license “illegal and void.” 100 Va. at 261, 40 S.E. at 914. First, we also find such marriages illegal and void. We do not, however, find that such marriages are void “ ab initio ” – something Offield did not state. Second, the full sentence that Levick excerpt s states as follows: “None of these authorities [addressing whether statutory formalities are mandatory or directory], however, question the power of the Legisl ature, by plain language or cl ear implication, to declare all marriages or pretended marriages not entered in to in accordance with the requirements of the statute illegal and void.” Id. at 261, 40 S.E. at 913-14. This pa ssage does not bear the weight Levick places on it. It does not answer or even address the questi on before this Court, whether a ceremony that precedes a marriage license, fo llowed by a license obtai ned without a ceremony “under license” is voidable or void ab initio . This passage from Offi eld simply states that legislatures can (1) regulate how and when a marriage is ente red into and (2) specify the consequences for failing to follow those requirements.

11 We acknowledge Code § 20-31.1, which provid es, in relevant part, that “[t]he issue of marriages prohibited by law, deemed null or void or dissolved by a cour t shall nevertheless be legitimate.” Legitimation in the eyes of the law w ill not always palliate the stigma that might be inflicted on such children.- 19 - Levick argues that finding marriages lik e this one voidable rather than void ab initio would be tantamount to recognizing common law marriages, in contravention of longstanding Virginia public policy. We disagr ee. First, the parties here in fact held a ceremony and obtained a marriage license, and, except for performing the ceremony under license, otherwise fulfilled the obligations imposed on them by law such as filing the marriage certif icate in the clerk’s office. Therefore, unlike common law marriages , where no celebration was necessary and where there was no necessity of record evidence attes ting to the parties’ marriage, the parties here attempted (but failed) to follow the strictures of the law. Second, a marri age like this one can in fact be declared void once the pa rties move to set it aside. We certainly do not ignore the strictures of Code § 20-13; we simply conclude that such purported marriages like this one are

best treated as voidabl e rather than void ab initio

. 12 For her part, MacDougall argues that if the ma rriage is voidable, she should be entitled to equitable distribution and spousal support. She relies on McConkey v. McConkey, 216 Va. 106, 215 S.E.2d 640 (1975), and Payne, 201 Va. 209, 110 S.E.2d 252. In McConkey, the Supreme Court observed that “[a] voidable marriage is ‘ usually treated as a valid marriage until it is decreed void.’” 216 Va. at 107, 215 S.E.2d at 641 (emphasis added) (quoting Toler, 173 Va. at 432, 4 S.E.2d at 367). First, neither McConkey nor Payne specifically addresses what remedy is appropriate in a situation like the one before us. Second, McConkey and Toler contain an important qualifier: the Court was careful to say that a voidable marriage is “usually” treated as a valid marriage until it is decreed void. This is not the “usual” case because we conclude that there was no marriage. Our conclusion that the parties were never married means that

12 Levick also contends that our decision w ill require Virginia to retroactively ratify same-sex marriages that were en tered into prior to the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Our decision in this case simply has no bearing on that issue. Accordingly, we decline to address in advisory fa shion a question of law not before this Court.- 20 - MacDougall cannot obtain the distribution of ma rital property through equitable distribution because no marital estate ever existed, and neith er can she obtain post-divorce spousal support, because in the eyes of the law sh e was never a spouse to Levick. C. Equitable doctrines do not apply. We generally reject the applic ation of equitable doctrines in modern divorce suits because this body of law is now chiefly statutory in ch aracter. See Bajgain v. Bajgain, 64 Va. App. 439, 457-58, 769 S.E.2d 267, 276 (2015). 13 Assuming, however, without deciding, that these equitable doctrines can be brought to bear in th e context of annulment litigation, we nevertheless conclude that these equitabl e doctrines do not apply here. “Laches is the neglect or failure to assert a known right or claim for an unexplained period of time under circumstances prejudicial to the adverse party.” Princess Anne Hills Civic League, Inc. v. Susan Constant Real Esta te Trust, 243 Va. 53, 58, 413 S.E.2d 599, 602 (1992). “The burden of proving laches is upon the party w ho asserts it.” Id. The “[e]lements necessary to establish equitable estoppel, absent a show ing of fraud and decept ion, are a representation, reliance, a change of position, and detriment.” Lataif v. Commercial Indus. Constr., Inc., 223 Va. 59, 63, 286 S.E.2d 159, 161 (1982) (quoting T v. T, 216 Va. 867, 873, 224 S.E.2d 148, 152 (1976)). “Because the doctrine of estoppel prevents the showing of the trut h, it is applied rarely and only from necessity.” Princess Anne Hills Civic League, 243 Va. at 59, 413 S.E.2d at 603. “[T]he party who relies upon estoppel must prove each element by clear, precise, and unequivocal evidence.” Id.

13 We note our Supreme Court’s discussion of a forerunner to Code § 20-89.1: “Divorce is the creature of stat ute; annulment rests within the inhe rent power of equity, inherited by it from the ecclesiastical courts of England.” Pretlow v. Pr etlow, 177 Va. 524, 548-49, 14 S.E.2d 381, 387 (1941); cf. Heflinger, 136 Va. at 296, 118 S. E. at 318 (“The right to bring a suit for annulment is expressly given by . . . the Code, but this is probably merely declaratory of a pre-existing ground of equ itable jurisdiction.”).- 21 - The Supreme Court applied the principles of unclean hands, equitable estoppel, and “estoppel by laches” in Mc Neir v. McNeir, 178 Va. 285, 290-91, 16 S.E.2d 632, 633-34 (1941). In that case, the former wife had challenged the validity of a divorce decree, not a marriage. Id. at 289, 16 S.E.2d at 633. With resp ect to “estoppel by lach es,” the Court held that the doctrine

barred the former wife from challenging the validity of the divorce because she did not challenge it until four years after ob taining the decree. The Court conc luded that “she must have known” that her former husband had remarried and yet sh e took no prompt action to set aside the divorce decree. Id. at 291, 16 S.E.2d at 633-34. The C ourt explained the rationale for barring the challenge to the divorce decree: The safety of society imperatively demands that one who seeks to overthrow an apparently valid decree of divorce should proceed with the utmost promptness upon discovery of the facts claimed to show its invalidity. It must be apprehended that a man who has secured a decree of divorce, valid on its face, may endeavor to marry again, thus en tangling some innocent woman in most intolerable difficulties, s hould the divorce be afterwards annulled. In such a cas e, one who seeks the aid of equity should, in limine, make it appear that she has proceeded in good faith and with reasonable diligence. Id. at 292, 16 S.E.2d at 634 (quoting Dry v. Rice, 147 Va. 331, 340, 137 S.E. 473, 475-76 (1927)). Those principles, which gove rn challenges to the validity of a divorce , are inapplicable in a suit seeking a declaration that a marriage was never lawfully contracted. In addition, unlike

the wife in McNeir who failed to act with “u tmost promptness” in learning of the problems associated with the divorce, Levick acted pr omptly upon discovering th at the marriage might have been, or was, invalid. Furthermore, both Levick and MacDougall were aware of the fact that the marriage had taken place without a license. It is essential to the application of the principles of equitable estoppel, or estoppel in pais, that the party claiming to have been influenced by the conduct or declar ations of another to his injury,- 22 - was not only ignorant of the true state of facts, but had no convenient and available means of acquiring such information, and where the facts are known to both parties, and both had the same means of ascertaining the truth, there can be no estoppel. Fitzgerald v. Fitzgerald, 194 Va. 925, 930, 76 S. E.2d 204, 207 (1953) (quoting Lindsay v. James, 188 Va. 646, 659, 51 S.E.2d 326, 332 (1949)). Here, the parties were equally knowledgeable about the operative facts. MacDougall, citing decisions from other states , also urges us to adopt the concept of marriage by estoppel. We must decline the invitati on. The legislature is th e rightful branch of government to set Virginia’s public policy with re gard to an institution so foundational, and of such paramount importance to society, as marriage. This area of Virginia law has been comprehensively regulated since 1628, if not ear lier, and it is for the General Assembly to consider any modification to the statutory formalities for contracting lawful marriage. 14

IV. T HE TRIAL COURT DID NOT ERR IN SETTING ASIDE THE PARTIES ’ M ARITAL A GREEMENT

. On July 20, 2009, the parties entered into a ma rital agreement that spelled out Levick’s obligations to MacDougall in the ev ent of a separation or divorce. Following Levick’s successful challenge to the validity of the marriage, he persua ded the trial court to set aside this agreement on the ground that it was the product of mutual mi stake of fact. MacDouga ll challenges the trial court’s ruling setting aside the agreement.

14 Fashioning a rule to uphold an attempted marriage like this one raises a number of policy questions. Should such an attempted marri age be upheld, or should the parties suffer the consequences for their neglect of what are, after all, simple and longstanding statutory requirements? If the marriage is to be sust ained, how should that be done? Should it be accomplished through a statute of repose that woul d foreclose litigation challenging the validity of the attempted marriage past a certain date, or by amending the curative statute and allowing such an attempted marriage to be considered valid when the ceremony had taken place within a certain time before obtaining the license? Th e existence of these and other alternatives strengthens our conclusion that the question is on e of policy and, therefore, for the legislative branch to address (or not ) as it deems fit.- 23 - A. The record supports the trial court’ s determination that Levick’s waiver did not encompass a claim of mutual mistake of fact. Following extensive liti gation on the subject, th e trial court found that Levick had made a “knowing, explicit, voluntary, valid bona fide waiver” of his right to ch allenge the validity of the marital agreement. MacDougall argues that the tr ial court erred in allowing Levick to challenge the validity of the marital ag reement, despite this waiver. Before making this waiver, Levick had ch allenged the agreement on various grounds but, notably, he had not raised any ar gument concerning a mutual mistake of fact with regard to the parties’ marital status. 15 Thus, when the trial court found this waiver, Levick had not yet discovered or invoked the ground that led to the eventual annulment. The trial court found that Levick did not knowingly waive his right to seek rescission of the marital agreement on the basis

of mutual mistake of fact because he was unaware of that claim’s availability when he waived.

A “waiver is an intentional relinquishment of a known right,” Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 74, 306 S.E.2d 870, 873 (1983), 16 and it is “usually a question for the trier of fact,” Link Assocs. v. Jefferson St andard Life Ins. Co., 223 Va. 479, 485, 291 S.E.2d 212, 216 (1982). See also Heinrich Schepers GmbH & Co. v. Whitaker, 280 Va. 507, 515-16, 702 S.E.2d 573, 577 (2010) (“Usually, proof of waiver is a question for the trier of fact.” (quoting Mgmt. Enters. v. The Thorncroft Co., 243 Va. 469, 474, 416 S.E.2d 229, 232 (1992))).

15 These grounds included me re agreement to agree, invalidity on its own terms, MacDougall’s first material breach, vagueness and uncertainty of terms, unconscionableness and duress, failure to disclose assets and obligati ons or waiver, revocation by MacDougall’s waiver of rights and both parties’ abandonment of th e agreement, MacDougall’s repudiation of the agreement, criminality, and contradi ction of Virginia public policy.

16 Some courts distinguish a waiver from a forf eiture. A forfeiture occurs when a litigant fails to timely assert a right. United States v. Olano, 507 U.S. 725, 733 (1993). A waiver, on the other hand, is “the ‘intentional relinquishment or abandonment of a known right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Ther e is no dispute that we are dealing with waiver here.- 24 - The essential elements of waiver are knowledge of the facts basic to the exercise of the right and intent to relinqui sh that right. Waiver of a legal right will be implied only upon clear and unmistakable proof of the inten tion to waive such right for the essence of waiver is voluntary choice. Cashion v. Smith, 286 Va. 327, 334, 749 S.E.2d 526, 530 (2013) (quoting Chawla v. BurgerBusters, Inc., 255 Va. 616, 622-23, 499 S. E.2d 829, 833 (1998)). A waiver “must be distinctly made with full knowledge of the rights waived.” Link Assocs., 223 Va. at 485, 291 S.E.2d at 216. “[T]he burden rests on the party rely ing on a waiver . . . to prove the essentials of such waiver . . . by clear, preci se and unequivocal evidence.” Uti ca Mut. Ins. Co. v. Nat’l Indem. Co., 210 Va. 769, 773, 173 S.E.2d 855, 858 (1970). The record supports the trial court’s conclusion that Levick waived the right to challenge a marital agreement in a divorce suit , i.e. his waiver presuppose d the existence of a valid marriage. There is no dispute that, when Levick made this waiver, he was unaware of any claim that he was not legally married. Because waiver is usually a question for the trial court, and because the record supports the trial court’s fi nding that Levick’s waiver did not extend to a

claim based on the lack of a valid marriage, we affirm the finding of the trial court that Levick did not waive his right to seek rescission of the marital agreement on the basis of mutual mistake

of fact. B. The trial court properly ordered rescission of the marital agreement on the basis of mutual mistake of fact. MacDougall next argues that the trial court erred in resc inding the marital agreement because the mutual mistake was one of law, not fact. The law does not s upport this contention. “Property settlement agreements are contracts . . . subject to the same rules of formation, validity, and interpretation as other contracts.” Boedeker v. Larson, 44 Va. App. 508, 518, 605 S.E.2d 764, 769 (2004) (alteration in original) (quoting Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593, 595 (1986)). A litigant must “prove by clear and convincing evidence the grounds- 25 - alleged to void or rescind the agreement. ” Webb v. Webb, 16 Va. App. 486, 491, 431 S.E.2d 55, 59 (1993) (quoting Drewry v. Drewry, 8 Va. App. 460, 463, 383 S.E.2d 12, 12 (1989)). “If certain facts are assumed by both partie s as the basis of the contract, and it subsequently appears that such f acts did not exist, the contract is inoperative.” Va. Iron, Coal & Coke Co. v. Graham, 124 Va. 692, 708, 98 S.E. 659, 664 (1919). “Generally, equity, while relieving mistakes of fact, will not give relief from a mistake of law, except in extraordinary cases.” Pigg v. Haley, 224 Va. 113, 125, 294 S. E.2d 851, 859 (1982). Our Supreme Court has explained, however, that this rule is “confined to mistakes of the general rules of law, and does not apply to the mistakes made by individuals as to their own pr ivate legal rights and interests, such as to the ownership of prope rty. Those private rights are trea ted as matters of fact, albeit the result of matters of law.” Id. Put another way, [w]henever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities, or other relation, ei ther of property or contract or personal status, and enters into some transaction, the legal scope and operation of which he correct ly apprehends and understands, for the purpose of affecting such assumed rights, interests, or relations, or of carrying out such assumed duties or liabilities, equity will grant its relief, defens ive or affirmative, treating the mistake as analogous to, if not id entical with, a mistake of fact. Burton v. Haden, 108 Va. 51, 58, 60 S.E. 736, 738 (1908) (quoting 2 John Norton Pomeroy, A Treatise on Equity Jurisprudence § 849, at 1498 (3d ed. 1905)). That is the situation with respect to th e marital agreement. When Levick and MacDougall entered into the marital agreement, both were “ignorant or mistaken” about their “antecedent and existing private legal rights” regarding their marriage. Their mutual mistake differs from those in the authority cited by MacD ougall. The mistakes at issue in those cases involved mistakes about the application of general principles of law rather than mistakes about an antecedent private right or status that lay at the foundation of an agreement. See Pillow v.- 26 - Pillow, 13 Va. App. 271, 275, 410 S.E.2d 407, 410 (1991) (mistake as to tax deductibility of spousal support payments); Piedmont Trust Bank v. Aetna Cas. & Sur. Co., 210 Va. 396, 400-02, 171 S.E.2d 264, 267-68 (1969) (mistake as to scop e of coverage of insurance policy). C. The marital agreement was not a “family settlement” of a controversy concerning the validity of the marriag e or the rescission of the parties’ marital agreement. In an effort to uphold the marital agreemen t, MacDougall invokes equitable principles that govern the settlement of family disputes . We find those princi ples inapplicable. Virginia law favors the “repose of family relationships.” Weade v. Weade, 153 Va. 540, 546, 150 S.E. 238, 239 (1929). Compromises having for their object the settlement of family difficulties or controversies are favored at law and in equity if at all reasonable. The termination of su ch controversies is considered a valid and sufficient consideration for the agreement, and the court will go further to sustain it than it would under ordinary circumstances. Accordingly, it ha s been laid down as a general rule that a family agreement en tered into on the supposition of a right, or of a doubtful right, alt hough it afterwards turns out that the right was on the other side, is binding, and the right cannot prevail against the agre ement of the parties. Id. at 548, 150 S.E. at 240 (quoting 12 Corpus Juri s, Compromise and Settlement § 16, at 322-23 (1917)). Courts will uphold an agreement the pa rties have “intentionally entered into . . . to compromise and settle those doubts.” Pigg, 224 Va. at 125, 294 S.E.2d at 859. Whatever anticipated controversy the partie s compromised or set tled by their marital agreement, it was neither the marriage’s validi ty nor the agreement’s rescission. At most, potential property and support controversies, resulting from a divorce or separation, were settled by the agreement. The question of the agreemen t’s rescission for mutual mistake of marital status, however, was not. Such a question wa s not even anticipated at the time of the agreement’s execution. MacDougall does not provide us with any authority that would support extending the “family settlements” doctrine to th e settlement of disputes between married, or- 27 - purportedly married, couples. A family that faces internal strife will, it is hoped, resume familial harmony upon the resolution of the underlying disput e. The same cannot be said about married or presumptively married parties who are se eking to permanently sunder their bond through a divorce or an annulment. Accordingly, we concl ude that the “family settlement” doctrine does not apply here.

V. T HE JUDICIAL DECLARATION THAT THE PARTIES NEVER LAWFULLY MARRIED DOES NOT REQUIRE THE COURT TO ORDER M AC D OUGALL TO DISGORGE HER PENDENTE LITE OR AGREED SUPPORT

. In his appeal, Levick contends that the trial court erred when it refused to order MacDougall

to refund the pendente lite and agreed support that he paid be fore the court declared the marriage void. Levick argues that, once the trial court declared the marriage void ab initio , the trial court lacked the authority to impose a pendente lite support obligation and should have required MacDougall to return all of the pendente lite support she received. He also argues that the support paid under the incorpor ated marital agreement should have been returned.

A. The trial court ha d jurisdiction to award pendente lite support. Levick first contends that the trial court lack ed jurisdiction when it awarded MacDougall pendente lite support. He points us to the language of Code § 20-103(A), which authorizes the court “to compel a spouse to pay any sums n ecessary for the maintenance and support of the petitioning spouse,” and stresses the word “spouse.” He conte nds that MacDougall “is not and was not a ‘spouse’ to whom such support could be awarded” and, therefore, the trial court had no authority to award her pendente lite support. “A question regarding jurisd iction is a matter of law. ‘We review the trial court’s statutory interpretations and legal conclusions de novo .’” Craig v. Craig, 59 Va. App. 527, 539, 721 S.E.2d 24, 29 (2012) (quoting Navas v. Navas, 43 Va. App. 484, 487, 599 S.E.2d 479, 480 (2004)). As to the jurisdictional point, this li tigation began its long jour ney as a divorce suit,- 28 - over which the court plainly had subject matter juri sdiction. “Subject matter jurisdiction is the authority vested in a court by cons titution or statute to adjudicate ce rtain categories of disputes.” Smith v. Commonwealth, 281 Va. 464, 467, 706 S.E.2d 889, 891 (2011). “The circuit court shall have jurisdiction of suits for annulling or a ffirming marriage and for divorces . . . .” Code § 20-96. The trial court had subj ect matter jurisdiction over the divorce and annulment suits. There is no dispute that the court also had ju risdiction over the parties. The court had both subject matter and pers onal jurisdiction. Relying on Iron City Savings Bank v. Isaacsen, 158 Va. 609, 164 S.E. 520 (1932), Levick

contends that the court did not ha ve “actual jurisdiction” to grant pendente lite support. His reliance, however, is misplaced. Iron City Sa vings Bank had sued to recover a debt from Isaacsen. Id. at 616, 164 S.E. at 522. After the bank obtained a judgment, Isaacsen sought to set

it aside for the bank’s failure to serve indispensable pa rties. Id. at 620-22, 164 S.E. at 523-24. The trial court did so and allowed Isaacsen to further participate in the suit, which he successfully defended on the stat ute of limitations. See id. at 622-23, 164 S.E. at 524. The bank appealed. Id. at 623, 164 S.E. at 524. In re jecting the bank’s argument, the Supreme Court addressed the failure to serve indispensable part ies, noting that, “[f]or the court to have actual jurisdiction to exercise its poten tial jurisdiction, it must acquire jurisdiction of the person of all the parties necessa ry or of the res necessary to sustain a decree granting the equitable relief prayed.” Id. at 624, 164 S.E. at 524-25. Here, the trial cour t unquestionably had jurisdiction over the parties and, in Iron City’s phrasing, bo th potential and actual jurisdiction. Of further relevance here, th e Court in Iron City observed th at “[t]he potential jurisdiction of a court of chancery, when properly invoked, is su fficient to sustain the exercise of the power of the court to do all things nece ssary or proper to perf ect its actual jurisdic tion and to preserve

the status quo while so doing.” Id. at 624-25, 164 S.E. at 525. That is precisely the object of- 29 - certain interlocutory orders, including pendente lite support orders, in divorce and annulment suits. They preserve the status quo until the ultimate entry of th e decree of divorce or annulment. An annulment decree in a spouse’s favor does not retroactively defeat the jurisdiction to enter interlocutory orders prior to the entry of the annulment decree. We previously held, in Klei nfield, 7 Va. App. at 190, 372 S.E .2d at 411, that a trial court

has the discretion to order pendente lite support in an annulment su it “even if the marriage was void.” See also Henderson v. Henderson, 187 Va. 121, 127-28, 46 S.E.2d 10, 13 (1948). This conclusion accords with the majority rule, 17 and Levick does not point to any development, since Kleinfield, to undermine the strengt h of its holding. Annulment and pendente lite support are longstanding features of Virginia law; yet, now here has the General Assembly provided that a trial court must order the repayment of pendente lite support upon a decree of annulment. Levick’s textual argument – that Code § 20-103(A) pendente lite support can only be paid to a “spouse” and, therefore, not to MacD ougall – is further undercut by that statute’s legislative history. The word “spouse” appear s in Code § 20-103(A) as the product of a legislative design to make the statute gender neutral. See Comment, Annual Survey of Developments in Virginia Law: Domestic Relations, 61 Va. L. Rev. 1732, 1749 (1975). The

17 “The authorities appear to be quite uniform in holding that trial courts have power to order alimony pendente lite and the payment of the expenses of litigation in suits brought . . . to annul the marriage.” Poupart v. Dist. Court, 123 P. 769, 770 (Nev. 1912); see, e.g., Peacock v. Peacock, 87 So. 2d 626, 628 (Ala. 1956) (per cu riam); Lee v. Lee, 83 S.W.2d 840, 841-42 (Ark. 1935); Pierce v. Otte, 142 P.2d 283, 284 (Colo. 1943) (en banc); Burger v. Burger, 166 So. 2d 433, 436 (Fla. 1964); Frith v. Frith, 18 Ga. 273, 274-75 (1855); Brown v. Brown, 61 N.E.2d 645, 646 (Ind. 1945); Ricard v. Ricard, 121 N.W. 52 5, 525-26 (Iowa 1909); Trout man v. Sternberg, 446 S.W.2d 635, 635-36 (Ky. 1969); Muwinski v. Muwinski, 200 N.W. 465, 465 (Minn. 1924); Kruse v. Kruse, 85 S.W.2d 214, 217 (Mo. App. 1935); Stat e ex rel. Wooten v. Dist. Court, 189 P. 233, 238-39 (Mont. 1920); Willits v. Willits, 107 N.W. 379, 381 (Neb. 1906); Barnes v. Barnes, 48 A.2d 890, 892 (N.J. 1946); Higgins v. Sharp, 58 N.E. 9, 10 (N.Y. 1900); Lea v. Lea, 10 S.E. 488, 490 (N.C. 1889); Hunt v. Hunt, 100 P. 541, 543-44 (Okla. 1909); Stump v. Stump, 170 A. 393, 394-95 (Pa. Super. 1934); Leckney v. L eckney, 59 A. 311, 312-13 (R.I. 1904); Arey v. Arey, 60 P. 724, 725-26 (Wash. 1900).- 30 - statute had provided that a cour t could order “the man to pa y any sums necessary for the maintenance of the woman.” 1975 Va. Acts ch. 644. The General Assembly replaced “the man” with “the spouse” and “woman” with “petitioning spouse.” Id. This amendment hardly evinces a legislative intent to compel a party to return all pendente lite support upon a declaration that the marriage was void. In short, although a marriage may ultimately be declared void, that does not alter a trial court’s power, expressly conferred by statute, to enter certain orders duri ng the pendency of the litigation. Those orders are not rendered retroactively void, ev en if the marriage ultimately proves to be. B. The facts and circumstances support the trial court’s exercise of discretion in declining to orde r MacDougall to repay the pendente lite support. Levick next argues that, even if the trial court had the authority to order pendente lite support, it should have exercised its discretion to order repayment. 18 This is so, he contends, because MacDougall benefitted financially from th e parties’ relationship, Levick supported MacDougall and her children duri ng the relationship, and he paid virtually all costs associated with the ownership and care of the home. “[T]he abuse of discretion standard require s a reviewing court to show enough deference to [the trial court’s] judgment that [it] does not reverse merely because it would have come to a

different result in the first instance.” Lawlor v. Commonwealth, 285 Va. 187, 212, 738 S.E.2d 847, 861 (2013) (quoting Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 322 (4th Cir. 2008)). “Accordingly, ‘w hen a decision is discretionary . . . . the court has a range of

18 MacDougall points us to Reid v. Reid, 245 Va. 409, 429 S.E.2d 208 (1993), to argue that a trial court cannot order a litigant to repay any spousal support. Reid addressed a trial court’s authority to order repaym ent following the entry and reversal of a final order of spousal support. See id. at 411, 429 S.E.2d at 209. Reid did not address a situ ation, like this one, involving a trial court’s author ity to order repayment of pendente lite support during ongoing trial litigation.- 31 - choice, and . . . its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.’” Id. at 212-13, 738 S.E.2d at 861 (a lterations in original) (quoting Landrum v. Chippenha m & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)). The evidence established a mutually benefici al relationship. Levick was, indeed, a very good provider. His success in business ensured the couple a very high standard of living. On the other hand, Levick benefitted personally and pr ofessionally from MacDougall’s efforts. She helped him with entertaining and networking. She not only worked without pay for Levick’s company but also loaned it money at a crucial ju ncture. She testified th at she contributed her own financial resources for the family’s well -being. Furthermore, as MacDougall points out,

when the court entered the pendente lite orders, there was no claim that the marriage was void. On these facts, we detect no abuse of discretion. C. The court had jurisdicti on to incorporate the parties’ agreement on support. Levick reiterates his jurisdictional arguments to challenge the trial court’s authority to incorporate the parties’ marital ag reement into an order. He also contends that the court could not incorporate the marital agreement, under Code § 20-109.1, because that statute applies to a “party to whom such relief might otherwis e be awarded,” see Code § 20-109(C), and a non-spouse, he maintains, is not such a party. Initially, the trial court set monthly pendente lite support at $8,000. On August 27, 2012, the trial court entered an order compelling Levi ck to pay support in accord with the marital agreement. That orde r superseded the earlier pendente lite support orders. In the wake of its ruling that the marriage was void ab initio , the court suspended pendente lite and agreed support payments, effective November 21, 2013.- 32 - The trial court’s initial decision to incorpor ate the parties’ marita l agreement into its order was not void for lack of jurisdiction. Code § 20-109.1 authorizes a trial court to incorporate property settlement (and certain other) agreements into an order, and Code § 20-109(C) precludes the court from granting reli ef that does not accord with the incorporated agreement. The trial court had subject matter jurisdiction to act under Code § 20-109.1, and it had jurisdiction over the parties. No jurisdictional impediment precluded the trial court from incorporating the marital agreement into an order, and we reject the argument that the order was retroactively voided by the later annulment decree. D. Levick did not request appropri ate restitution from the trial court.

Levick contends that the trial court wa s required to order MacDougall to repay any support expended under the marital agreement, wh ich the court later rescinded for mutual

mistake of fact. He cites Hilliard v. Fox, 735 F. Supp. 674 (W .D. Va. 1990), for the general proposition that one who pays money under a mistak e of fact is entitled to restitution, and Hall v. Graham, 112 Va. 560, 72 S.E. 105 (1911), to argue that he is entitled to in terest on the funds he paid under mutual mistake of fact. Ordinarily, a contract’s rescission, for mistake of fact, allows a part y “restitution for any

benefit that he has conferred on the other party by way of part performance or reliance.” Restatement (Second) of Contracts § 376 (1981). The court’s enforcement, by incorporation, of the contractual obligation to pay su pport did away with the earlier pendente lite obligations,

which otherwise would have continued. At mo st, Levick’s reliance cost was the difference between the agreed and the pendente lite support: $4,500 in monthly s upport over a period of approximately 17 months. Levick did not request this relief at trial and does not request it on appeal. He has maintained, instead, that he wa s entitled to a full refund. He is not.- 33 - VI. T HE COURT COMMITTED NO REVERSIBLE ERROR IN DECLINING TO ORDER M AC D OUGALL TO RETURN PREVIOUS PAYMENTS FOR ATTORNEYS ’ FEES

. A. The trial court had jurisdiction to order Levick to pay attorneys’ fees. Levick again contends that the trial court lacked jurisdiction to award attorneys’ fees once the court determined that the marriage was void. Code § 20-103(A)(ii) authorizes a court “[i]n suits for divorce, annulment and separate main tenance . . . [to] make any order that may be proper . . . to enable such spouse to carry on the suit.” “An award of atto rney’s fees is a matter

submitted to the trial court’s sound discretion and is reviewable on appeal only for an abuse of discretion.” Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987).

For the same reasons noted in connection with Levick’s challenge to the award of pendente lite support, we conclude that the trial cour t had actual and pote ntial jurisdiction to order Levick to pay attorneys’ fees. The tr ial court had jurisdicti on over the divorce and annulment suits and had jurisdiction over the part ies. By statute, it could enter various interlocutory orders. The later a nnulment decree did not render void ab initio the interlocutory

orders entered in connecti on with the litigation. B. The court committed no abuse of discretion in assessing attorneys’ fees against Levick. As with his challenge to the pendente lite support order, Levick argues that awarding attorneys’ fees const ituted an abuse of discretion both fo r the initial award of $191,288 and the later award of $100,000. He argues that MacDougall was fully awar e of the facts that led the trial court to conclude that the marriage was void but, instead of conceding, chose to litigate. He complains of her “obstructionist” conduct and makes much of the trial court’s ultimate rejection of her arguments. He argues that, because he ultimately prevailed, MacDougall should not have

received additional fees. He also contends that MacDougall demonstrated an ability to pay attorneys’ fees.- 34 - “The key to a proper award of counsel fees is reasonableness under all the circumstances.” Lightburn v. Lightburn, 22 Va. App. 612, 621, 472 S.E.2d 281, 285 (1996) (citing McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985)). In making such an award, a trial court is directed to consid er “the circumstance of the parties,” Barnes v. Barnes, 16 Va. App. 98, 106, 428 S.E.2d 294, 300 (1993), and the “equities of the entire case,” Davis v. Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643 (1989). Levick chose to extensively litigate the validity of the marital agreement, only to concede that he was bound by it, followed by an attempt to retract that concession. Only after this extensive (and unsuccessful) challenge to the mari tal agreement’s validity did Levick switch to the legal theories that ultimately prevailed. The trial court, while noting that it did not charge Levick with bad faith, stated from the bench that Levick could have raised the validity of the marriage “at the beginning of this litigation a nd Mrs. MacDougall would not have had to spend several hundred thousand dollars in litigating marita l related issues before we get to the validity of the marriage.” The trial court also heard evidence concerning the significant disparity in resources available to Levick and to MacDougall . The court rejected Levick’s argument that MacDougall had refused to negotiate in good faith or adopted positions that increased the cost of litigation. Moreover, it is hard ly surprising that MacDougall cont ested Levick’s claim that the marriage was void. MacDougall’s arguments, even if unsuccessful, were hardly frivolous.

VII. A PPELLATE ATTORNEYS ’ FEES Finally, both parties request attorneys’ fees for their efforts on appeal. Regarding MacDougall’s appeal, the parties have “addressed appropriate and substant ial issues” and have not “generated unnecessary delay or expense in purs uit of [their] interests.” Estate of Hackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004). We conclude that an award of fees is not justified as to that appeal. Our review of the grounds ra ised in Levick’s appeal, however,- 35 - leads us to conclude that appellate attorneys’ f ees are justified. Accordingly, we remand the case

to the circuit court for an assessment of the fees that MacDougall incurred in defending Levick’s appeal.

CONCLUSION We affirm the judgment of the trial court. 19

Affirmed and remanded.

19 Unlike the trial court, we conclude that th e parties’ marriage was voidable rather than void ab initio . This difference in reasoning may affect fu ture cases involving a similar defect in the formation of a marriage, but it does not aff ect in practical terms the outcome of this case.