Georgia law presumes a foreign marriage is valid, where it is shown that two individuals have entered into a solemnization or contract that reflects an undertaking to marry, and there is no evidence to disprove the validity of the foreign proceeding.

QUESTION

You have asked whether Georgia would recognize a purported marriage between two Georgia residents performed at sea by a cruise ship’s captain and in front of witnesses, where the marriage certificate was registered in Bermuda.

OPINION

We believe the marriage would be valid in Georgia. The claimant presented a marriage certificate registered in Bermuda, and the information provided contains no relevant evidence to disprove the validity of the marriage.

BACKGROUND

Kevin J~, the number holder (NH), and Sebrena J~ (Claimant) were married and had one minor child together. After NH died in July 2001, Claimant applied for and received mother’s benefits on NH’s earnings record. In 2002, Claimant started dating Shawn M~ and became pregnant shortly after. On May 6, 2003, Claimant and M~ married on a cruise ship. Claimant was thirty-four years old at the time. The ship’s captain performed the marriage in front of two witnesses, and the marriage certificate was registered in Bermuda. Both Claimant and M~ are Georgia residents and were residents of Georgia when they participated in the marriage ceremony. Claimant did not notify the Agency of her marriage to M~ and continued to receive mother’s benefits on NH’s record for several years.

Claimant alleges her marriage to M~ was not legal. Claimant states she never took a blood test or filed any paperwork in Georgia, and both Claimant and M~ submitted income tax returns from 2003 to 2007 indicating each filed separate tax returns, she as a widow and he as head of household. In interviews conducted by agents with the Social Security Administration’s Office of the Inspector General, however, neighbors and family members stated Claimant and M~ were married, lived as a married couple, and introduced themselves as husband and wife.

DISCUSSION

Under the Social Security Act (Act) an insured individual’s surviving spouse may be eligible for mother’s benefits if she is unmarried and has in her care the insured’s child who is under the age of 16. See Act §§ 202(g)(1); 20 C.F.R. § 404.339 (2010); Program Operations Manual System (POMS) RS 00207.003. Claimant contends she remains eligible for mother’s benefits because her marriage to M~ is invalid under Georgia law.

Georgia law presumes the validity of a marriage, which is overcome only by disproving every reasonable possibility of its validity. See Brown v. State, 66 S.E. 2d 745, 748 (Ga. 1951). Georgia law presumes a foreign marriage is valid, where it is shown that two individuals have entered into a solemnization or contract that reflects an undertaking to marry, and there is no evidence to disprove the validity of the foreign proceeding. See POMS PR 02706.012 (PR 06-265). Moreover, the United States Supreme Court has stated a foreign marriage is presumed valid where there is proof of solemnization in accordance with foreign law. See id. Claimant has provided a marriage certificate registered in Bermuda and does not dispute that her marriage was solemnized in accordance with Bermuda law.^[1] Thus, no evidence rebuts the presumed validity of the marriage under Bermuda.

Claimant instead focused on the requirements for a valid marriage under Georgia law. Claimant notes she never took a blood test and did not file any paperwork in Georgia. The essentials for a valid marriage in Georgia are (1) parties able to contract, (2) an actual contract, and (3) consummation according to law. See Ga. Code Ann. § 19-3-1 (2010). While the Georgia legislature prescribed various other formalities for the execution of a marriage contract, Georgia courts have held that compliance with such provisions was not essential to a valid marriage contract. See Lefkoff v. Sicro, 6 S.E.2d 687, 693 (Ga. 1939) (citations omitted). A presumption favoring the validity of a marriage arises where, as here, there is proof of a ceremonial marriage between the parties and proof of cohabitation. See Reed v. Reed, 43 S.E. 2d 539, 543 (Ga. 1947). “All the presumptions necessary to make a marriage valid attach on proof of a formal ceremony of marriage and cohabitation by the parties under the belief that they were lawfully married; and the burden is on those who attack the validity of the marriage to show its invalidity by clear, distinct, positive, and satisfactory proof.” Fanning v. State, 169 S.E. 60, 62 (Ga. Ct. App. 1933). While Claimant has alleged that her marriage is not legal, Claimant did not provide sufficient evidence to rebut the presumption that her marriage to M~ is valid. Moreover, neighbors and family members stated Claimant and M~ were married, lived as a married couple, and introduced themselves as husband and wife. Thus, it appears Georgia would consider Claimant’s marriage to M~ valid.

CONCLUSION

We believe Georgia would recognize Claimant’s marriage to M~ as valid. Therefore, Claimant would be married for the purposes of determining her eligibility for mother’s benefits on NH’s earnings record.

Very truly yours,

Mary A. S~

Regional Chief Counsel

Natalie L~

Assistant Regional Counsel

The NH did not obtain a marriage license before his ceremonial marriage to the claimant. Under Georgia law, failure to obtain a marriage license is not essential to the validity of the marriage. The presumptions necessary to make a marriage valid attach on proof of a formal ceremony of marriage and cohabitation by the parties under the belief that they were lawfully married. The 9 month of marriage requirement does not need to be met since the claimant and the NH were the natural parents of a child.

You have requested our opinion as to whether a marriage was valid under Georgia law where a couple was married by a minister but had not obtained a marriage license. It is our opinion that the marriage is probably valid.

Bernard I. B~, the number holder (NH), was diagnosed with cancer in February 2003 and did not obtain a marriage license before his ceremonial marriage to Debra B~ (Claimant) on April 6, 2003. The ceremony took place at a church in Perry, Georgia, and was officiated by a pastor, NH's brother, with thirty people in attendance. The couple did not obtained a marriage license prior to the ceremony because they could not afford it.

The pastor performed the ceremony despite the lack of a license because of the NH's terminal illness. Although the couple planned to go before a probate judge to obtain a marriage license after the ceremony; NH died on May 1, 2003, before taking any action. Claimant has filed an application for mother's benefits. Her child, Jessica B~, was born on February 2, 2002, and NH is listed on the birth certificate as her father.

The essentials for a valid marriage in Georgia are (1) parties able to contract; (2) an actual contract; (3) consummation according to law. Ga. Code Ann. § 19-3-1. The Georgia legislature prescribed various formalities for the execution of a marriage contract, such as the application for the issuance of marriage licenses and had provided a penalty against any judge, justice of the peace, or minister who joins in marriage any without a license. See Lefkoff v. Sicro, 189 Ga. 554, 560, 6 S.E.2d 687, 693 (1939).

Georgia courts, however, have uniformly held that compliance with these provisions was not essential to the validity of a marriage contract. See id. (citations omitted). In this regard, Georgia has recognized marriages celebrated between two people fully capable of contracting, although solemnized with no license at all. See 1965-66 Op. Att'y Gen. No. 66-240 (copy attached). Moreover, "[a]ll the presumptions necessary to make a marriage valid attach on proof of a formal ceremony of marriage and cohabitation by the parties under the belief that they were lawfully married; and the burden is on those who attack the validity of the marriage to show its invalidity by clear, distinct, positive, and satisfactory proof." Fanning v. State, 169 S.E. 60, 62, 46 Ga.App. 716 (1933). Thus, it appears that the Claimant's marriage to NH would be considered valid under Georgia law.

Section 202(g) of the Act says that the surviving spouse of a deceased individual can be entitled to a mother's/father's insurance benefit.

"Surviving spouse" is defined in § 216(a)(2) to include a widow, as defined in § 216(c). Section 216(c) explains that "widow" means the surviving wife of an individual, but only if she satisfies on of several alternative conditions. Two of these conditions are "(1) She is the mother of his son or daughter" and "(2) She was married to him for a period of not less than nine months immediately prior to the day in which he died." This duration-of-marriage requirement applies only if the surviving wife does not meet one of the other alternative conditions in § 216(c), such as the mother-of-the-child requirement.

Nevertheless, the regulations require that, in order to be entitled to mother's/father's benefits, the person must be the widow/widower of the insured individual, and "meet the conditions described in 404.335(a)(1)," which refers to the 9-month duration-of-marriage requirement for a widow(er). 20 C.F.R. § 404.339 (2004). According to the Office of Eligibility and Enumeration Policy (OEEP) within the Office of Income Security Programs (OISP), the cross-reference included in § 404.339 is incomplete, because it does not include the alternatives to the 9-month duration requirement, which are contained in sections 404.335(a)(2) through (a)(4). Section 404.335(a)(3), which is relevant to this case, provides that a claimant need not meet the 9-month duration requirement where the claimant and the insured were the natural parents of a child. The regulations, therefore, do not encompass all of the methods by which a claimant may be eligible under the Act.

On August 12, 2003, the Agency published a Notice of Proposed Rulemaking (NPRM) that would correct this error. Entitlement and Termination Requirements for Stepchildren, 68 Fed. Reg. 47,877-47,881 (proposed Aug. 12, 2003) (to be codified at 20 C.F.R.§ 404.339). Similarly, OEEP/OISP is planning a revision to the POMS which would provide accurate cross-references from sections RS 00208.001C to sections RS 00207.001C.2 and 3. Although the NPRM cannot be relied upon as a statement of policy, it is indicative of the Agency's recognition of the alternative means of entitlement to mothers' insurance benefits. Moreover, in cases where there is an apparent conflict between the Act and regulations, the Act would take priority over the regulations. See Lewis v. Barnhart, 285 F.3d 1329, 1333 (11th Cir. 2002) (citing Chevron U.S.A., Inc. v. N.R.D.C., 467 U.S. 837, 842-45 (1984)) ("If the will of Congress is clear from the statute itself, our inquiry ends - 'the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.'"). In this case § 216(c)(3) of the Act controls over the defective 20 C.F.R. § 404.339. Because Claimant and the NH were parents of children receiving benefits, the claimant does not have to meet the 9-month duration requirement. Therefore, based on the facts that you presented, she is eligible for mother's insurance benefits under section 202(g) of the Act.

Very truly yours,

Mary A. S~

Regional Chief Counsel

Joseph P. P~, III

Assistant Regional Counsel

The marriage of a man receiving father's benefits that was performed in Georgia with a South Carolina marriage license is valid. Marriages solemnized on the authority of a marriage license procured in the wrong state, county, or municipality are generally considered valid if the parties are competent to marry and the laws of the state where the marriage was celebrated do not specifically nullify marriages for noncompliance with licensing requirements. Georgia statutes do not specifically nullify marriages for noncompliance with licensing requirements.

You have requested our opinion as to whether a marriage performed in Georgia with a South Carolina marriage license is valid. We believe that the marriage is valid.

Thomas B~ was receiving father's benefits on his deceased wife's record. To receive these benefits he needed to be unmarried. 20 C.F.R. §404.341(3) (2002). On September 9, 2000 he was married in Augusta, Georgia. He and his wife obtained a marriage license in South Carolina. The minister who married them falsely certified that the marriage had taken place in South Carolina. However, Mr. B~ and the minister now admit that the marriage took place in Augusta, Georgia. The parties were Georgia residents and appear to be competent to marry. Mr. B~ did not report his marriage to the Agency and continued to receive father's benefits.

Marriages solemnized on the authority of a marriage license procured in the wrong state, county or municipality are generally considered valid if the parties are competent to marry and the laws of the state where the marriage was celebrated do not specifically nullify marriages for noncompliance with licensing requirements. See 61 A.L.R.2d 847, §5 (2003 Suppl.) Georgia has recognized the validity of a marriage where the license was issued in the wrong county. Minshew v. State, 25 Ga.App. 240, 102 S.E. 906 (1920). Georgia statutes do not specifically nullify marriages for noncompliance with licensing requirements. A marriage is considered valid in Georgia, even if the license was invalid or no license at all was taken out. 1965-66 Op. Att'y Gen. No. 66-240. ^[2] Accordingly, we believe that Mr. B~'s marriage was valid.

Very truly yours,

Mary A. S~

Regional Chief Counsel

Laurie G. R~

Assistant Regional Counsel

MARRIAGE — CEREMONIAL - MARRIAGE - STATUTORY REQUIREMENTS — GEORGIA

Under Georgia law, a marriage between a man and his stepson's divorced wife is not prohibited as incestuous.

(P~, Robert R. (DNH) - ~ - RAIV - [Jarrett] - to Dir., Ins. Progs. Br., Atl., 07/09/85)

In your memorandum you asked whether the Georgia law prohibits a stepfather from contracting a valid marriage with his former stepson's divorced wife.

The facts are as follows. The wage earner, Robert R. P~, married Lucille P~ on June 12, 1972. He became the stepfather of Paul C~, Lucille's son. Lucille gave birth to another child, Bobi, on January 8, 1973. The wage earner and Lucille divorced. in Rhode Island on September 22, 1981.

Paul C~, the insured's former stepson, divorced his former wife, Catherine C~, in 1982, in Rhode Island. Catherine C~ married the wage earner in Georgia in October 1983. Catherine gave birth to Christopher P~ on November 5, 1983. The wage earner died domiciled in Georgia on November 7, 1983. Catherine filed for survivor's benefits on behalf of herself and Christopher. They became entitled to benefits effective November 1983. Lucille C~, on behalf of Bobi P~, protested Catherine's and Christopher's claim to benefits alleging that the marriage between Catherine' and the insured was invalid because Catherine had been the insured's daughter-in-law and, thus, was unable to contract a marriage in Georgia. For reasons hereinafter stated, the marriage between the insured and Catherine was a validly contracted marriage.

Ga.Code.Ann. SS53-105 provides as follows:

“Marriages between persons related by affinity in the following manner are prohibited, VIZ: A man shall not marry his stepmother or mother-in-law or daughter-in-law, or stepdaughter, or granddaughter of his wife. A woman shall not marry her corresponding relatives. Marriages within the levitical degrees of consanguinity shall be void. Marriages within the degrees prohibited by this section shall be incestuous.”

Consanguinity is defined as “kinship”; blood relationship, the connection or relation of persons descended from the same stock or common ancestor. Affinity is defined as the connection existing in consequence of marriage between each of the married persons and the kindred of the other. (Black's Law Dictionary Revised 4th Ed. 1968)

Since the statute does not include a former stepson's divorced wife, the marriage between the insured and his former daughter-in-law is not incestuous under Georgia law. There is no blood relationship between the parties. Moreover, any relationship which may have existed between the two parties was extinguished upon the divorce of the insured and Lucille, the former wife. see, Bennett v. Bennett, 290 S.E.2d 206 (April 12, 1982), cert. denied (June 25, 1982). Also, see opinion Re M~ Fred - RAVI [Cart] - to AO, B'ham., 03/07/51. Consequently, the marriage of Catherine and the insured was validly contracted.