§ 20-38.1. Certain marriages prohibited.----------
(a) The following marriages are prohibited:
(1) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
(2) A marriage between an ancestor and descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption;
(3) A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood.
§ 20-39. Prohibition continues notwithstanding dissolution of previous marriage.Now § 20-39 is obviously aimed at § 20-38.1(2) & (3), but it does not limit itself to those sub-sections. The plain language of § 20-39 does require it to be applied to § 20-38.1(1). So, how does § 20-39 apply to § 20-38.1(1)?
In the cases mentioned in § 20-38.1, in which the relationship is founded on a marriage, the prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or by divorce, unless the divorce be for a cause which made the marriage originally unlawful or void.
First you must look at the language in § 20-39 "in which the relationship is founded on a marriage" and ask what relationship there is in § 20-38.1(1). There are only two possible relationships and a marriage before a divorce of a prior marriage is void ab initio so the only actual legal relationship is the "earlier marriage."
Now that we know the "relationship . . . founded on marriage" is the "earlier marriage" we must look to what restrictions are placed upon individuals in the earlier marriage by § 20-39. This is very clear. "[T]he prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or by divorce." What prohibition? The one in § 20-38.1: "The following marriages are prohibited."
As a consequence of all this, is it plain to see that the "earlier marriage" which is "founded on marriage" prohibits marriage "prior to the dissolution of an earlier marriage" and "the prohibition shall continue in force, notwithstanding the dissolution of such marriage by death or by divorce." Under § 20-39, the effect of the earlier marriage never ends, thus prohibiting a second marriage forever.
So, if someone gets divorced under Virginia law he or she is forbidden by law from marrying again. The punishment? Under § 20-40, "[i]f any person marry in violation of § 20-38.1 he shall be confined in jail not exceeding six months, or fined not exceeding $500, in the discretion of the jury."
Isn't statutory interpretation fun?