Where wage earner married a second woman without benefit of termination of his first marriage in China at a time when polygamous marriages were legal, Hawaiian courts would consider the second marriage voidable due to the general public policy against polygamy. However, since Hawaiian courts would rule the marriage voidable rather than void the second wife would have inheritance rights where neither of the parties sought a divorce of nullity at any time. (C~ Tai C. RA IX (T~) to RC, 11/17/82)

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.