Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on the record of an insured individual who has died or an individual who is entitled to old-age or disability benefits if, he or she applies, is the individual’s child, is dependent on the individual, is unmarried, and is under age 18 (or 18 and older with a disability that began before age 22; or 18 or older and a full-time student). See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a); Program Operations Manual System (POMS) RS 00203.001. Once the agency awards child’s insurance benefits, the Act sets forth specific circumstances under which the agency must terminate those benefits, which includes when the child marries (with certain exceptions). See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b)-(e); POMS RS 00203.035.

Here, the agency terminated the Claimant’s child’s insurance benefits effective February 2022 based on her marriage to a non-Title II beneficiary. See 42 U.S.C. 402(d)(1)(D); 20 C.F.R. § 404.352(b)(4). The Claimant obtained an Arkansas annulment of her marriage in April 2022 on the basis of fraud. You asked whether the marriage that was subject to the annulment was void or voidable under Arkansas law as it impacts the Claimant’s re-entitlement to child’s benefits. See POMS GN 00305.125 (setting forth policy regarding void marriages), GN 00305.130 (setting forth policy regarding voidable marriages), GN 00305.135 (setting forth policy on when an annulment permits initial entitlement or re-entitlement), RS 00203.015 (setting forth the requirements for re-entitlement to child’s benefits); Social Security Ruling (SSR) 84-1 (annulment of a voidable marriage and the effect on entitlement or re-entitlement to benefits).

A void marriage is a marriage that is legally nonexistent from the beginning under State law, and thus, parties to a void marriage are considered never to have been validly married. POMS GN 00305.125A. Agency policy states that a prior determination terminating benefits based on a remarriage now determined to be void may be reopened and revised. POMS GN 00305.125B.2.a. The agency is to reinstate benefits previously terminated because of a marriage that is determined to be void as of the month of the prior termination, subject to the rules of administrative finality. POMS GN 00305.125C.

A voidable marriage is a marriage that is defective and can be annulled but is considered valid unless and until declared void as a result of a court action on its validity. POMS GN 00305.130A. Agency policy instructs that where a voidable marriage has been annulled, benefits previously terminated because of such marriage may be resumed upon the taking of a new application. POMS GN 00305.130B.1.a. Benefits are payable no earlier than the month the annulment decree is issued subject to the usual provisions of retroactivity. POMS GN 00305.130B.1.a.

Thus, we turn next to your question as to whether the Claimant’s marriage that was subject to the annulment was void or voidable under Arkansas law.

The Claimant has presented the agency with a Decree of Annulment, entered on April XX, 2022, finding that she was entitled to an annulment from Z~ under section 9-12-201 of the Arkansas Code because her consent to marry Z~ was obtained by fraud. The court awarded an annulment and ordered that “the bonds of matrimony heretofore existing between the plaintiff and defendant shall be declared void and set aside.”

Under Arkansas law, “[m]arriage is considered in law a civil contract to which the consent of the parties capable in law of contracting is necessary.” Ark. Code Ann. § 9-11-101. Marriage “may be annulled only for causes set forth by statute.” Stuhr v. Oliver, 363 S.W.3d 316, 320 (Ark. 2010).

At issue here, section 9-12-201 of the Arkansas Code provides:

When either of the parties to a marriage is incapable from want of age or understanding of consenting to any marriage, or is incapable of entering into the marriage state due to physical causes, or when the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.

Ark. Code Ann. § 9-12-201. The Arkansas Supreme Court has expressly addressed the issue presented. Although the statute is titled “void marriages” and declares a marriage “void,” the Arkansas Supreme Court has explained that the term “void” as used in section 9-12-201 of the Arkansas Code’s “annulment statute means that such a marriage is voidable.” Stuhr, 363 S.W.3d at 320; Vance v. Hinch, 261 S.W.2d 412, 414 (Ark. 1953). The Arkansas Supreme Court explained that the statute states that “the marriage shall be void only from the time it is declared a nullity by a court of competent jurisdiction,” and thus, “[t]he only reasonable interpretation . . . is that such a marriage is voidable, not void.” Vance, 261 S.W.2d at 414. Thus, under Arkansas law, a marriage obtained by fraud is a voidable marriage and such a marriage remains valid unless and until it is annulled pursuant to section 9-12-201 of the Arkansas Code. See id. Once annulled, however, it is considered to have never existed. See id.

Accordingly, under Arkansas law, the Claimant’s marriage subject to the annulment under section 9-12-201 of the Arkansas Code was voidable. See POMS PR 06315.005 Arkansas, A. PR 11-014 Whether a Decree of Annulment Renders a Marriage Void or Voidable under Arkansas Law – NH Charles R. B~ - Reply (Nov. 15, 2010) (advising that a marriage that a court annuls for failure to consent by virtue of a want of understanding was a voidable marriage under section 9-12-201 of the Arkansas Code). Upon entering the Decree of Annulment on April 11, 2022, Arkansas law considers the marriage to never have existed.^[2]

As stated above, a gency policy instructs that where a voidable marriage has been annulled, benefits previously terminated because of such marriage may be resumed upon the taking of a new application. POMS GN 00305.130B.1.a. Benefits are payable no earlier than the month the annulment decree is issued subject to the usual provisions of retroactivity. POMS GN 00305.130B.1.a.