Tai C. C~ the wage earner, married Lum N. Y~ C~ in 1923 in China. (He apparently had
been living in Hawaii before that time.) The couple moved to Hawaii and lived there
until approximately 1928, when they sold their business and returned to China. Later
that year, he went through a Chinese custom wedding ceremony with the claimant, Sou
Y. K~, in Kwangtung province. The claimant moved into the home occupied by the wage
earner, his first wife, and their daughter. In 1929 the wage earner moved back to
Hawaii, leaving both wives and his children behind, where they continued to live as
a (combined) family. He returned to China at least once thereafter, for a period of
approximately five years. In 1938 he left China for good and returned to his other
home in Hawaii.
His children began to emigrate to Hawaii, one or two at a time, in the 1940's. Sometime
between 1949 and 1952, his first wife emigrated to Hawaii. Due to the communist take-over
of China, the claimant was precluded from emigrating as planned; however, the wage
earner regularly sent money to her (via Hong Kong) for the support of herself and
their youngest children. He died in Hawaii on January 24, 1973. The claimant finally
reached Hawaii years thereafter. In October 1980 she applied for widow's benefits
on the deceased wage earner's account. You asked us whether she qualifies as a "widow"
for social security benefit purposes.
Because the wage earner was a Hawaii domiciliary at the time of his death, that state's
law applies in assessing the claimant's marital status. See section 216(h) (1) (A) of the Act. Hawaii follows the usual rule that a marriage
valid in the country where contracted will be held legal by Hawaiian courts. Hawaii
Revised Statutes ("H.R.S.") §572-3. Polygamous marriages were legal in Kwangtung province,
China, at the time the wage earner made the claimant his second wife. GC Opinion re:
Chin H. T~, December 21, 1976. Tested under section 572-3 alone, the marriage would
be recognized as legal in Hawaii.
The opposing factor in this case is the general public policy against polygamy in
all states of this country. H.R.S. section 572-1 requires, for a valid marriage to
be contracted, that (inter alia) the man not at the time have a lawful wife living
and the woman similarly not have a lawful husband living. In Hawaii, however, the
public policy against polygamy is not as strong as in most states; it does not make
polygamous marriages void. 1_/ Polygamous marriages in Hawaii and voidable only. 2_/
H.R.S §580-21. A decree of nullity of a polygamous marriage may be secured by either
party (to that marriage) during the lifetime of the other party, or by a former husband
or wife. H.R.S. §580-23. Because none of the spouses in the current case sought such
a decree of nullity, both marriages must be treated as valid. The claimant therefore
would have a surviving spouse's inheritance rights under Hawaii law. Cf.
Estate of Henry Gordon, 6 Hawaii 289 (1851) (voidable on ground of age). As a result, she qualifies for
widow's insurance benefits under the Act.
1_/ Similarly, Hawaii's bigamy statute carries a lesser penalty than most; bigamy
is a petty misdemeanor rather than a felony. H.R.S. §709-900 (enacted in 1972).
2_/ We express no opinion herein concerning what result we would reach on the issue
presented, if Hawaii law treated polygamous marriages as void rather than voidable.