PR 05005.021 Louisiana
A. PR 04-059 Louisiana Law-Presumption of Validity of the Last Marriage (NH Sidney R~, SSN ~) - REPLY
DATE: January 8, 2004
The claimant is not entitled to widow's benefits based on her alleged first husband's record. The highest court in Louisiana, where he resided at the time of his death, would follow Mississippi law regarding the validity of the marriage. The marriage was not valid because both members of the couple were underage, did not have parental consent, and did not live together after the ceremony. The claimant is still married to her most recent husband, on whose record she has also filed. Because she obtained a separation "a mensa et thoro" from him, they are legally separated but not divorced.
We are responding to your request for our opinion regarding claimant Catherine V~ marital status and entitlement to widow's benefits on the record of Sidney R~, or wife's benefits on the record of David P~. First, you asked whether Ms. V~ marriage to Sidney R~ was valid when contracted under Mississippi law. Secondly, there is an issue as to whether Ms. V~ subsequent marriages to Robert S~, August I~, and David R~ precluded her from establishing that she is Sidney R~'s widow. Third, you inquired whether Ms. V~ is currently the legal spouse of David R~.
After reviewing the facts and relevant law, it is our opinion that Ms. V~ is not entitled to widow's benefits on the record of Sidney R~ because she and Mr. R~ were never validly married under Mississippi law. For this reason, it is unnecessary to determine the impact on widow's benefits of her subsequent marriages to Mr. S~ and Mr. I~. However, we believe that Ms. V~ is entitled to wife's benefits on the record of David R~ because she is still legally married to him, provided all other conditions for benefit entitlement are met.
Due to the complex marital history involved, we provide the following chronology of relevant facts:
1. Catherine V~ and Sidney R~ were married on August 16, 1949, in Pearl River County, Mississippi. Although the court record reports Ms. V~ age at the time as 18 and Mr. R~'s age as 21, based on the birthdates reported in their Social Security applications and on Ms. V~ admission, their actual ages were 15 and 18, respectively. Ms. V~ stated that she and Mr. R~ never lived together, but that they did not obtain a divorce or annulment.
2. On October 20, 1950, Ms. V~ married Robert S~ in Louisiana. Ms. V~ did not report her marriage to Mr. R~ on her application for a marriage license with Mr. S~. Ms. V~ and Mr. S~ were divorced by judgment entered on March 5, 1956.
3. On June 4, 1954, Sidney R~ married Gloria H~. He did not mention his marriage to Ms. V~ on his application for a marriage license with Ms. H~.
4. Ms. V~ states that she married August I~ on December 30, 1956 or March 1, 1957, in Louisiana. They were divorced by a decree dated October 20, 1969.
5. Mr. I~ married Eve Cabell on November 20, 1969.
6. Ms. V~ states that she married David R~ on January 1, 1973, in Mississippi. Mr. R~ confirms that they were married in Mississippi, but he does not recall the date.
7. Ms. V~ and Mr. R~ both state that they separated shortly after they were married. Mr. R~ thought Ms. V~ had obtained a divorce. Ms. V~ states that she learned that the divorce was never finalized. A judgment decreeing a separation "a mensa et thoro" was entered on May 2, 1975, in Jefferson Parish, Louisiana.
8. August I~ died in May 1984 while domiciled in Louisiana. Eve Cabell I~ receives widow's benefits on his record.
In 1989, Ms. V~ applied for disabled divorced widow's benefits on Mr. I~'s record. She did not mention her prior marriage to Mr. R~. Her application was denied because she was not finally divorced from Mr. R~.
10. Sidney R~ filed for disability benefits in 1991, but did not list his marriage to Ms. V~ on his disability application. He died in May 1991. Gloria H~ R~ receives widow's benefits on his record.
11. On January 28, 2003, Ms. V~ applied for widow's benefits under 42 U.S.C. § 402(e), on Mr. R~'s record.
12. Also on January 28, 2003, Ms. V~ applied for wife's benefits under 42 U.S.C. § 402(b) on Mr. R~'s record.
Entitlement to Widow's Benefits
A claimant is entitled to widow's benefits if she is the insured's widow. See 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.335(a). This relationship requirement will be met if the claimant and the insured were validly married under state law at the time the insured died. See 20 C.F.R. § 404.345. The controlling law is the law of the state where the insured had a permanent home when he died. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Catherine V~ applied for widow's benefits on the record of Sidney R~, who died in May 1991 while domiciled in Louisiana. Therefore, Louisiana law is controlling.
Under Louisiana law, a marriage that is valid in the state where contracted, or in the state where the parties were first domiciled as husband and wife, shall be treated as a valid marriage unless to do so would violate a strong public policy of the state whose policies would be most seriously impaired if its law were not applied to the particular issue. See La. Civ. Code Ann. art. 3519, 3520(A) (West 1994). Catherine V~ and Sidney R~ underwent a ceremonial marriage in Pearl River County, Mississippi, on August 16, 1949. We do not believe the public policy of either state at the time of the marriage would be seriously impaired by the application of Mississippi law in this case because Louisiana public policy regarding underage marriages appears to be consistent with Mississippi law on this issue. Compare La. Civ. Code Ann. art. 92 (West Supp. 1941) and La. Civ. Code Ann. art. 97, 112 (West 1932) (parental consent required, but its absence does not necessarily invalidate the marriage) with Miss. Code Ann., §§ 460, 461 (1942) (parental consent required, but its absence does not invalidate the marriage where the parties cohabitate after the ceremony). Therefore, Louisiana courts would look to the laws of Mississippi to determine whether Ms. V~ marriage to Mr. R~ was valid.
At the time the marriage ceremony between Ms. V~ and Mr. R~ was performed, Ms. V~ was fifteen years old, and Mr. R~ was eighteen years old, although they stated their ages as 18 and 21, respectively, on the marriage application. Ms. V~ states that she and Mr. R~ never lived together, and no evidence has been provided to the contrary. No divorce record has been located, and Ms. V~ states that no divorce or annulment was secured.
Under Mississippi law applicable in 1949, a female under the age of eighteen, and a male under the age of twenty-one, could marry, but the clerk of court was required to obtain the consent of the parents or guardian of the minor child as a condition of the marriage license. See Miss. Code Ann., § 460 (1942). There does not appear to be parental consent in Ms. V~ case, as she misrepresented her age to the clerk of the court. Further, Ms. V~ stated that upon learning of her marriage to Mr. R~, her parents destroyed the marriage certificate. Nonetheless, the absence of parental consent and an irregular license do not invalidate a marriage. Section 461 of the Mississippi Code states that the failure to comply with the provisions of that section shall not affect the validity of any marriage duly solemnized and followed by cohabitation. See Miss. Code Ann., § 461 (1942). The Supreme Court of Mississippi interpreted an earlier version of this section to apply to the requirement of parental consent for underage marriages. See Hunt v. Hunt, 161 So. 119, 121-22 (Miss. 1935). In the Hunt case, the Court held valid the ceremonial marriage of the thirteen-year-old appellant where she and the appellee lived together and publicly acted as if they were married, even though they did not consummate the marriage. Id. The irregular license arising from their age was cured by their conduct after the marriage. The parties' cohabitation was the decisive factor for the Court. Id.
IApplying the Hunt case to Ms. V~ situation, it appears that a Mississippi court would find that her marriage to Mr. R~ was not valid because the element of cohabitation is absent. Both parties were underage at the time of the issuance of license and the ceremony, they did not have parental consent, and they did not live together or hold themselves out to the public as husband and wife following the ceremony. Significantly, neither Ms. V~ nor Mr. R~ mentioned their marriage when they applied for subsequent marriage licenses with other persons, and Mr. R~ did not list Ms. V~ as a former spouse when he applied for disability benefits. These omissions, as well as the fact that they each married other individuals, indicate that Ms. V~ and Mr. R~ did not view their marriage as valid. Due to the absence of cohabitation, we believe that a Mississippi court would not recognize Ms. V~ as Mr. R~'s legal wife.
For these reasons, we believe that Catherine V~ was not validly married to Sidney R~, and she therefore is not entitled to widow's benefits on his record. Because Ms. V~ was never validly married to Mr. R~, it is unnecessary to determine the impact of her subsequent marriages to Mr. S~ and Mr. I~ on her application for widow's benefits on Mr. R~'s record.
Although Ms. V~ also applied for widow's benefits on the record of August I~, she is not entitled to benefits on his account because, as discussed below, she is still married to David R~. See 42 U.S.C. § 405(e)(1)(A); 20 C.F.R. §§ 404.335, 404.336 (applicant is entitled to widow's benefits or surviving divorced wife's benefits only if she is not married, except under certain narrow circumstances not at issue here).
Entitlement to Wife's Benefits
A claimant is entitled to wife's benefits if her relationship to the insured as a wife has lasted at least one year. See 42 U.S.C. § 402(b)(1)(C); 20 C.F.R. § 404.330(a)(1). The controlling law is the law of the state where the insured had a permanent home when the claimant applied for wife's benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Catherine V~ applied for wife's benefits on the record of David R~. Mr. R~ was living in Louisiana six months prior to Ms. V~ application, and there is no evidence that he subsequently changed his domicile. Therefore, Louisiana law is controlling.
On May 2, 1975, a Louisiana Court issued a judgment of separation "a mensa et thoro" between Ms. V~ and Mr. R~. A separation "a mensa et thoro" is also known as a separation from bed and board. See Black's Law Dictionary, p. 494 (7th ed. 1999). At the time Ms. V~ obtained her separation judgment from Mr. R~, Louisiana law provided that a judgment of separation from bed and board meant that the parties would live apart for a period of time prior to applying for a final divorce decree. See La. Civ. Code Ann. art. 155, repealed by 1990 La. Acts 1009, §9, eff. Jan. 1, 1991. Therefore, the judgment of separation from bed and board was a provisional proceeding during which the matrimonial relation still existed. See Stallings v. Stallings, 148 So. 687, 688 (La. 1933). A decree of separation from bed and board is distinct from the proceedings for a divorce, and the divorce proceeding is not a mere continuation of the proceeding for a separation from bed and board. See Donato v. Frillot, 40 So. 634 (La. 1906). Thus, the separation "a mensa et thoro" that Ms. V~ obtained against Mr. R~ is not a final divorce.
The law providing for the separation from bed and board was repealed effective January 1, 1991. See 1990 La. Acts 1009, § 9, eff. Jan. 1, 1991. The current Louisiana statute provides that spouses who obtained a judgment of separation from bed and board rendered before January 1, 1998, shall remain judicially separated until they either reconcile, or obtain a divorce. See La. Rev. Stat. Ann. § 9:382, amended by 1997 La. Acts 1078, § 3, eff. January 1, 1998. Because Ms. V~ and Mr. R~ neither reconciled nor obtained a divorce, they are still considered to be judicially separated, but not divorced, under Louisiana law. Therefore, Ms. V~ is still married to David R~, and is entitled to wife's benefits on his record, provided all other conditions for benefit entitlement are met.
We do not believe that Ms. V~ is entitled to widow's benefits based on her ceremonial marriage to Sidney R~ in Mississippi. We believe that the highest court in Louisiana, where Mr. R~ resided at the time of his death, would follow Mississippi law regarding the validity of the marriage. Because Ms. V~ and Mr. R~ were underage, did not have parental consent, and did not live together following the ceremony, a Mississippi court would likely find that the marriage was not valid. Further, it is our opinion that Ms. V~ is still married to David R~. Although Ms. V~ obtained a separation "a mensa et thoro" from Mr. R~, this merely constitutes a judicial separation, and is not the same as a divorce. Because Ms. V~ was never divorced from Mr. R~, she remains his wife and is entitled to benefits on his record, provided all other conditions for benefit entitlement are met.
Tina M. W~
Acting Chief Counsel, Region V
Assistant Regional Counsel