On February XX, 2002, you asked us for a legal opinion on which state's law would
apply regarding the marital relationship of B~ and M~. You also asked for an opinion
as to whether the marriage would be valid under applicable law.
Based on our review of the facts in this case and our research of the relevant statutes
and case law, we believe that Maryland law would apply in assessing the validity of
the marriage of B~ and M~. However, Maryland law provides that a marriage is valid
if it is valid under the law of the jurisdiction in which it was celebrated unless
it is contrary to the public policy of Maryland. The marriage of M~ and B~ would most
likely be valid under West Virginia law, but is against public policy of the state
of Maryland. Accordingly, the marriage of M~ and B~ would not be valid under Maryland
In your request, you stated that M~ was married to M2~ in June 1997 in Kentucky. They
ceased cohabitation as man and wife in July 1999, but did not obtain a divorce until
June 2001. M~ alleges that her marriage to M2~ was not valid because he was married
to another individual who was alive at the time of his marriage to M~.
B~ filed an application for father's benefits on the account of his first wife, B2~,
in July 1998. He was awarded benefits beginning in June 1998. On August XX, 1999,
B~ married M~ in West Virginia. B~ continued to cohabit with M~ after her divorce
from M2~. B~ continued to receive father's benefits on the account of his first wife,
B2~, through November 2001.
Both B~ and M~ currently live in Maryland.
Marriage of M~ and M2~
In order to determine whether the marriage of M~ and B~ was valid, we must first determine
whether M~ was legally married to another individual, M2~, at the time of her marriage
A claimant's marital status is determined under the law of the jurisdiction in which
he resides on the date of his application for benefits. 42 U.S.C. § 416(h)(1)(A)(i).
B~ was a resident of Maryland when he applied for father's benefits. Accordingly,
Maryland law applies in assessing B~'s marital status.
Maryland law and social security policy provides that a marriage is valid everywhere
if it is valid in the state in which it was celebrated. United States v. Seay, 718 F.2d 1279, 1285 n.10 (4th Cir. 1983); Blaw-Knox Construction Equipment Co. v. Morris, 596 A.2d 679, 685-86 (Md. Ct. Spec. App. 1991); POMS GN 00305.005. Accordingly, the marriage of M~ and M2~ is valid in Maryland if it was valid in
Kentucky, where the marriage was celebrated.
If M2~ was in fact married to another individual at the time he married M~, then his
marriage to M~ was void. Ky. Rev. Stat. Ann. § 402.020 (Banks-Baldwin 1998); Ferguson v. Ferguson, S.W.2d 925, 926-27 (Ky. Ct. App. 1981). In other words, Kentucky law does not require
a judicial decree of nullity for bigamous marriages. If M~ can provide proof that
M2~ was already married at the time of their June 1997 wedding, then her first marriage
was void and she was never legally married to M2~. Proof of M2~'s alleged conviction
for bigamy would establish that M2~ was already married at the time he attempted to
If M~ cannot provide proof that M2~ was legally married to another individual at the
time of their June 1997 wedding, then her marriage to M2~ would be presumed to be
legal under Kentucky law. Griffin v. Beddow, 268 S.W.2d 403, 404-05 (Ky. 1954); see Scott's Adm'r v. Scott, 77 S.W. 1122, 1124-25 (Ky. 1904) (holding that there is a favor in presumption of
the legitimacy of a second marriage absent evidence of bigamy).
Marriage of B~ and M~
If M~'s marriage to M2~ was void, then there is no doubt that her marriage to B~ was
valid. Maryland law would again apply, directing that a marriage is valid everywhere
if it is valid in the state where it was celebrated. Blaw-Knox, 596 A.2d at 685-86; POMS GN 00305.005. B~ and M~ were married in August 1999 in West Virginia. West Virginia law would
provide no impediment to the marriage of M~ and B~ if M~'s earlier marriage to M2~
was void under Kentucky law.
If M~'s earlier marriage to M2~ was not void, then her second marriage to B~ would
be voidable, not void, under West Virginia law. W. Va. Code § 48-3-103 (2001); Spradlin v. State Compensation Comm'r, 113 S.E. 2d 832, 834-35 (W. Va. 1960). Accordingly, her marriage to B~ would remain
valid until a judicial decree of nullity was rendered. W. Va. Code § 48-3-103 (2001);
Harvey v. Harvey, 298 S.E. 2d 467, 470-71 (W. Va. 1982). There has been no such decree in this case.
In fact, B~ and M~ have continued to live together as husband and wife at all times
after their August 1999 marriage. In addition, West Virginia law presumes that a marriage
is valid absent clear evidence to the contrary. Meade v. State Compensation Comm'r, 125 S.E. 2d 771, 775-76 (W. Va. 1962). Accordingly, even absent proof that the marriage
of M~ and M2~ was void, the marriage of B~ and M~ would be valid under West Virginia
However, a caveat to Maryland matrimonial law may render the West Virginia marriage
of B~ and M~ invalid in Maryland despite the fact that it would be valid under West
Virginia law. Maryland law provides that a marriage is valid if it is valid where
celebrated unless it violates public policy of the state in which it is subjected
to attack. Henderson v. Henderson, 87 A.2d 403, 409 (Md. 1952). Two examples of such
violations of public policy are (1) "marriages which are deemed contrary to the law
of nature as generally recognized in Christian countries; such as polygamous and incestuous
marriages"; and (2) "marriages which the local lawmaking power has declared shall
not be allowed any validity." Id. A bigamous marriage, which is a form of polygamous marriage, would therefore be
in violation of the public policy of Maryland and would not be considered valid regardless
of whether it was valid in the state of West Virginia. Accordingly, under controlling
Maryland law, the marriage of B~ and M~ would not be valid because M~'s marriage to
M2~ had not been dissolved when she married B~ in 1999.
Two possible issues remain. The first issue is whether M~ and B~ could establish a
common law marriage after her divorce from M2~ in June 2001. Maryland does not permit
common law marriages, but will recognize common law marriages that meet the requirements
for a common law marriage in the state in which the common law marriage was contracted.
Goldin v. Goldin, 426 A.2d 410, 412-13 (Md. Ct. Spec. App. 1981); Blaw-Knox, 596 A.2d at 686. West
Virginia law does not permit common law marriages.
W. Va. Code § 48-2-101 (2001); Goode v. Goode, 396 S.E.2d 430, 432-35 (W. Va. 1990).
Accordingly, B~ and M~ do not have a valid common law marriage under Maryland law.
The second question is whether the agency would deem B~ and M~ married. However, social
security regulations appear to allow the agency to deem a valid marriage only in order
to award social security benefits, not to terminate social security benefits. 42 U.S.C.
§ 216(h)(1)(A)(ii), (B); 20 C.F.R. § 404.346 (2001). Accordingly, there does not appear
to be any basis for deeming B~ married to M~.
Based on the evidence currently available, M~'s marriage to M2~ would be presumed
valid until proven void by M~. Accordingly, she was married to M2~ at the time she
attempted to marry B~. Her marriage to B~ is voidable under West Virginia law, but
has not been voided. Nonetheless, her marriage to B~ would be invalid under Maryland
law because it is against public policy. Therefore, M~ and B~ are not married under
B~'s benefits should not have been terminated because he was not remarried under controlling
If evidence is submitted showing that M~ was married to another living individual
at the time that he purported to marry M~, then the marriage of M2~ and M~ would be
void and invalid. Accordingly, there would be no impediment to the marriage of M~
and B~. If such evidence is obtained, B~'s benefits would have been appropriately
terminated as of the date of his remarriage in August 1999.
James A. W~
Regional Chief Counsel
Kelly C. C~
Assistant Regional Counsel