The marriage of a disabled adult child, which terminated his benefits, was annulled in Ohio. His benefits should be reinstated as of the month of his annulment decree because the marriage was voidable.

NOTE: Annulment of a voidable marriage would not permit reentitlement to child's benefits if the annulling court has granted, or retains power to grant, permanent alimony to the claimant. Ohio is not among the states listed in POMS GN 00305.130 in which the courts have the power to grant permanent alimony.

The Regional Commissioner in Kansas City requested our assistance in determining when Peter H~ should be entitled to reinstatement of adult child's benefits. They asked that we reply to you. Specifically, they asked whether a marriage that had never been consummated and was subsequently annulled would be a void or voidable marriage according to Ohio law. After researching the relevant state law, we believe that Peter H~'s marriage was a voidable marriage, and, therefore, he became eligible for reinstatement beginning with the month that his annulment decree issued.

BACKGROUND

Peter H~ received Social Security benefits as a disabled adult child from June 1987 until his benefits terminated due to his marriage on January 31, 1997. Mr. H~'s marriage was annulled on April 6, 1998, due to non-consummation. Pursuant to the Ohio Revised Code 31 § 3105.31(F), Mr. H~ requested reinstatement of his Social Security benefits on April 16, 1998.

DISCUSSION

Peter H~ may be entitled to reinstatement of benefits effective on the month his marriage was annulled. The Social Security Program Operations Manual System ("POMS") provides that if a marriage is considered void according to state (Ohio) law, Mr. H~ can collect benefits as if his marriage never happened. See POMS GN 00305.120 - GN 00305.125. Thus, if his marriage were void, Mr. H~ could collect retroactive benefits for the entire duration of his marriage. However, if Mr. H~'s marriage is considered voidable, his benefits may be reinstated effective on the month his annulment decree was entered. See POMS GN 00305.130. Therefore we must look to Ohio law to determine whether Mr. H~'s annulment rendered his marriage void or voidable.

The question whether an annulment for non-consummation of the marriage renders that marriage void or voidable is not addressed by Ohio statute. However, the Ohio Code clearly allows for non-consummation as ground for an annulment. Ohio Rev. Stat. 31 § 3105.31(F). Ohio, like other states, treats a marriage that was annulled for non-consummation as a voidable marriage. See Darling v. Darling, 335 N.E.2d 708, 710 (Ohio App. 1975); Lang v. Reetz-Lang, 488 N.E. 2d 929 (Ohio App. 1985); 4 Am. Jur. 2nd. Annul. § 4. Because the marriage is voidable, it is valid until one of the parties obtains a court order annulling the relationship.

Although, in Ohio, an annulment decree operates to hold the marriage as a nullity as though it had never existed, this is a legal fiction used to promote justice between the parties. See Darling, 335 N.E. 2d at 709. Ohio courts balance the interests of both parties to the annulment when deciding whether to apply this "relation back doctrine" in order to promote public policy. This doctrine should not be applicable, here, because the interests of the two parties to the annulment decree are not at issue. Therefore, there is no public policy reason to apply the relation back doctrine. Even if the relation back doctrine were to be applied, this does not change the determination that marriages annulled for non-consummation are voidable. Usually, it merely changes how the marital property is distributed or the validity of a subsequent marriage.

For the forgoing reasons, we conclude that Mr. H~'s benefits should be reinstated (on reapplication) as of the month of his annulment decree because his marriage was voidable.