TN 7 (10-15)
PR 05105.006 California
A. PR 15-195 Validity of Marriage Under California Law
September 21, 2015
The blessing ceremony between Claimant and S~ did not create a valid marriage under California law because it did not meet the state’s statutory requirements for marriage. They did not comply with California’s marriage licensing, authentication, and recording requirements and as a result, they never legally married under California law. Because the Claimant never validly remarried, she did not lose her entitlement to widow’s benefits on the DWE’s account. The evidence shows that Claimant and S~ never intended to enter into a legal marriage. Accordingly, the Claimant did not remarry after the DWE’s death and remains unmarried for purposes of establishing her entitlement to widow’s benefits on the DWE’s account. To the extent the agency based its overpayment assessment on a determination that Claimant remarried, that determination should be reconsidered.
You asked whether D~ (Claimant) validly remarried such that she was not eligible for widow’s benefits on the record of her former husband, deceased wage earner (DWE) F~.
No. The blessing ceremony between Claimant and S~ did not create a valid marriage under California law because it did not meet the state’s statutory requirements for marriage. Because she never validly remarried, Claimant did not lose her entitlement to widow’s benefits on the DWE’s account.
Claimant validly married the DWE on September XX, 1956, and they remained married until his death on December XX, 1992. On December XX, 1997, Claimant filed for widow’s benefits on the DWE’s account and stated that she was not married at the time of her application. The agency granted widow’s benefits beginning in February 1998 when Claimant reached the age of 60.
On December XX, 2014, Claimant filed for widow’s benefits on S~s record. In support, she presented a “Certificate of Marriage” for “S~” and “D~,” dated May XX, 1996, and signed by Father M~ of St. Lawrence Martyr Catholic Church. Claimant stated that she remained married to S~ until his death on May XX, 2011 (15 full years). Claimant stated that she and S~ lived as a married couple in the community, shared a residence, and that she was listed as S~’s spouse on his death certificate. When Claimant applied for widow’s benefits on the DWE’s account in December 1997, she did not disclose her remarriage to S~. Claimant explained that S~ advised her not to report their marriage because she could obtain higher benefits on the DWE’s account.
In the course of investigating her entitlement on S~’s account, the service representative contacted St. Lawrence Martyr Catholic Church by telephone. Rev. M~. P~ told the service representative that the church typically performs a convalidation ceremony to bless the union of a couple who are already married. He further stated that the ceremony that the church performs constitutes a ceremonial marriage, and that no filing with the state was required. The agency initially recognized Claimant’s remarriage to S~ as valid.
On December XX, 2014, Claimant withdrew her application for benefits on S~’s account, stating that she never married him and that the ceremony was actually a church “blessing.” On February XX, 2015, the agency notified Claimant that she was not eligible for benefits on the DWE’s account because of her remarriage. The agency also assessed an overpayment of $221,123.20 on the same date. On February XX, 2015, the agency denied the claim on S~’s account based on Claimant’s withdrawal of the claim.
Claimant retained an attorney to represent her before the agency in her appeal of the termination and overpayment decisions. In her appeals, Claimant stated that what she previously asserted was a marriage ceremony was actually a church blessing. She alleged that she never entered into a valid marriage with S~ under California law. Therefore, she alleged that the agency incorrectly terminated her benefits on the DWE’s account. Claimant’s requests for reconsideration remain pending.
The priest who performed the blessing ceremony is now deceased. Claimant’s attorney submitted a signed but unsworn letter from Rev. Msgr. D~ dated December XX, 2014. Rev. Msgr. D~ stated that church records reflect that Father L~ did not obtain a copy of a civil marriage license or marriage certificate. Rev. Msgr. D~ wrote that the church should have titled the marriage certificate a “convalidation,” which is a church blessing.
The church marriage certificate states that S~, Jr. witnessed the ceremony. S~, Jr. is the eldest son of S~, co-trustee of his estate while he was living, and sole trustee and executor of his estate after his passing. In a written statement, S~, Jr. advised that Father L~ told Claimant and his father that the ceremony would not result in a legal marriage. Further, S~, Jr. stated that the parties did not obtain or file a civil marriage license. S~, Jr., explained that S~ was a devout Catholic and had obtained a church annulment of his prior marriage so that he could continue to participate in the sacraments of the church. He further stated that, with respect to estate planning, his father did not provide for Claimant in his estate pursuant to his intent that he and Claimant would maintain separate estates.
In a signed but unsworn letter dated February XX, 2015, Claimant stated that she lived with, but did not marry S~. She stated that S~ was a devout Catholic and wanted the blessing of the Catholic Church in order to live with Claimant. She further stated that S~’s priest, Father L~, counseled them that a blessing did not constitute a legal marriage. Claimant stated that she never obtained a marriage license because she did not want to remarry after the DWE’s death, and she did not want to lose the medical insurance or Social Security benefits she received on the DWE’s account. Finally, she stated that she was not named as S~’s spouse on any trust, property documents, or income tax filings, and that she did not have power of attorney over his estate.
Claimant requested that the Los Angeles County Registrar-Recorder/County Clerk search the county’s public indexes for marriage documents recorded from December 1992 (the month of the DWE’s death) to November XX, 2014 in her full name (D~). She also requested that the clerk search the county’s public indexes for marriage documents recorded from January 1996 (the year of the church blessing ceremony) to December 2011 (the year that S~ passed away) under her first and last names (D~). The clerk certified that there were no marriage records within these search parameters.
For entitlement to widow’s benefits, a claimant must show that he or she was the spouse of the number holder and that he or she remains unmarried. See 20 C.F.R. § 404.335(e); Program Operations Manual System (“POMS”) RS 00207.001.A.1.b; POMS RS 00207.003.A (“Generally, a claimant for widow(er)’s…benefits must be unmarried in order to be entitled”). Here, there is no question that Claimant was married to the DWE. However, the question remains whether her blessing ceremony with S~ constituted a remarriage such that she was not entitled to widow’s benefits on the DWE’s account.
The Social Security Act (the Act) recognizes a spousal relationship when the claimant and a number holder were validly married under state law. See Act §§ 202 & 216(h)(1)(A)(i), 42 U.S.C. §§ 402 & 416(h)(1)(A)(i); see also 20 C.F.R. §§ 404.335, 404.344, 404.345. The Act looks to the law of the state where the deceased wage earner lived at the time of his death to determine whether a claimant’s marriage to an insured individual is valid. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS RS 00202.001.A.1 (“A legal spouse must be validly married to the NH under the laws of the State of the NH’s domicile at the time the claimant files an application or during the life of the application.”) However, neither the Act nor our regulations address which law governs the validity of the surviving spouse’s remarriage to a third party. See Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345; POMS PR 05005.006 (Feb. 4, 2015).
Here, the DWE and S~ lived in California at the time of their deaths, and Claimant resided in California at all relevant times. Accordingly, although the Act is silent in this regard, we need not resolve the question because California law is the only state law that is relevant to determining the validity of Claimant’s purported remarriage to the DWE.
If a marriage does not satisfy state law, the Act permits the agency to consider the marriage valid in limited circumstances. See Act §§ 216(h)(1)(A)(ii) (treating a claimant as a putative spouse if she could inherit under state laws for intestate succession), 216(h)(1)(B)(1) (deeming the marriage valid if, in good faith, the claimant went through a marriage ceremony with the insured but there was a legal impediment); 20 C.F.R. §§ 404.345, 404.346; see also POMS GN 00305.055 (defining deemed marriage), GN 00305.085 (defining putative marriage), RS 00207.001 (a claimant is entitled to widow’s benefits if she was the NH’s legal souse, putative spouse, or deemed spouse). These provisions ordinarily assist a claimant seeking benefits when there is an otherwise invalid marriage. However, these provisions do not apply when determining whether remarriage would preclude payment of widow’s benefits in California. See POMS RS 00207.003.C (a putative remarriage in California will not affect entitlement to widow’s benefits).
There are five statutory requirements for creating a valid marriage in California. First, the parties must consent to the marriage. Second, the parties must obtain a valid marriage license. Third, the marriage must be solemnized. Fourth, the person solemnizing the marriage must authenticate the marriage by signing the certificate of registry on the marriage license form and arranging for at least one witness’s signature. Finally, the certificate of registry must be filed with the county clerk, at which point the marriage license becomes a marriage certificate. Cal. Fam. Code §§ 300, 306, 420; see In re Estate of DePasse, 97 Cal. App. 4th 92, 101 (Cal. App. 2002).
California courts expressly hold that the failure to comply with statutory licensing, certification, or solemnization requirements render a marriage invalid. In re Estate of DePasse, 97 Cal. App. 4th at 102-103 (holding that California Family Code requirements are mandatory, which means a marriage is invalid in the absence of a marriage license); see also Burnham v. Cal. Pub. Employees Ret. Sys., 208 Cal. App. 4th 1576, 1584–85 (Cal. Ct. App. 2012) (failure to solemnize wedding renders it invalid); In re Estate of Tollefsen, No. A123071, 2009 WL 3470401, at *6 (Cal. Ct. App. Oct. 9, 2009) (citing In re Estate of DePasse, 97 Cal. App. 4th at 92; Lockyer v. San. Fran., 33 Cal. 4th 1055, 1116 (Cal. 2004)); see also POMS PR 05405.006.C (except under special circumstances, “a marriage license must be procured to render a marriage valid in California”).
Although Claimant withdrew, and the agency denied, her application for widow’s benefits on S~’s account, the validity of her marriage to S~ remains the key issue for determining her entitlement to widow’s benefits on the DWE’s account. Under California law, Claimant did not meet the statutory requirements for a valid marriage to S~. See Cal. Fam. Code §§ 300, 306 (requiring consent, license, solemnization, authentication, and recording); accord POMS PR 05405.006.C (recognizing California’s marriage license requirement).
First, the parties did not consent to legally marry each other. The available evidence indicates that Father L~ counseled Claimant and S~ that the blessing ceremony did not create a legal marriage. Claimant stated that she did not want to remarry after the DWE’s death, in part because she wanted to preserve her status as his widow for purposes of obtaining Social Security benefits. Additionally, S~ had faith-based reasons for not seeking a full remarriage. Further, by maintaining separate legal estates, the parties did not treat each other as spouses. These facts indicate that neither party consented to marriage.
Second, the parties did not obtain a marriage license. Claimant and S~’s son, who witnessed the blessing, affirmed that the parties intentionally did not obtain a marriage license or state recognition of the marriage. The church records did not note the existence of a marriage license or marriage certificate; Father L~ did not record the blessing ceremony as a civil marriage or ceremony with proof of a prior civil marriage. See Cal. Fam. Code § 421 (before solemnizing a marriage, the person solemnizing the marriage shall require the presentation of the marriage license).
In similar circumstances, a California appellate court held that a religious commitment ceremony did not result in a valid marriage in the absence of a marriage license. In the case of In re Marriage of Left, 208 Cal. App. 4th 1137 (Cal. Ct. App. 2012), a woman was unable to remarry because her divorce was not yet finalized, and the parties elected to proceed with a commitment ceremony. Id. at 1141. The parties informed the rabbi 30 minutes before the ceremony that they did not have a marriage license. Id. The wife’s first husband later petitioned the court to terminate spousal support on the grounds that she remarried. Id. at 1142. The court concluded that the commitment ceremony did not constitute a valid marriage, as the parties did not have a marriage license and the rabbi knew this fact. Id. at 1145-46. The decision in Marriage of Left indicates that a California court would not find Claimant’s blessing ceremony resulted in a legal marriage, principally because the parties did not obtain a marriage license.
Third, neither Father L~ nor the witnesses authenticated a certificate of marriage registry. S~, Jr., affirmed that he did not sign such a document, in keeping with his understanding that the ceremony did not create a legal marriage.
Fourth, the available county records do not show an authenticated certificate of registry. Claimant conducted two searches of the county marriage records during the relevant time period, and the county certified that no marriage records existed.
In conclusion, the blessing ceremony did not result in a valid marriage under California law due to defects with the consent, licensing, authentication, and recording requirements for marriage.
The evidence shows that Claimant and S~ never intended to enter into a legal marriage. In addition, they did not comply with California’s marriage licensing, authentication, and recording requirements. As a result, they never legally married under California law. See Cal. Fam. Code §§ 300, 306, 420; In re Estate of DePasse, 97 Cal. App. 4th at 102-103. Accordingly, Claimant did not remarry after the DWE’s death and remains unmarried for purposes of establishing her entitlement to widow’s benefits on the DWE’s account. See 20 C.F.R. § 404.335(e); POMS GN 00305.125. To the extent the agency based its overpayment assessment on a determination that Claimant remarried, that determination should be reconsidered.
B. PR 14-053 Validity of Marriage under California Law Claimant: K~, Number Holder: A~
DATE: February 10, 2014
The Social Security Act looks to state law to determine whether a spousal relationship exists. Here, the NH is domiciled in California therefore; we apply the laws of California in determining the validity and duration of Claimant’s marriage to the NH. California, employs the presumption that once a marriage has been shown to exist, it is presumed to be legal and valid, even if it is a second marriage. The Claimants 2012 court order establishes the fact of the 1973 marriage, but the Claimant has failed to show that she properly registered the court ordered marriage and if the marriage is not registered with the state, neither she nor the NH will be afforded an opportunity to initiate an action to dissolve the marriage. Also, the Claimant has not supplied any evidence to rebut the strong presumption that her three subsequent marriages were valid. In addition, even if the claimant’s current marriage ended, she would not meet the marriage duration of 10 years immediately before divorce became final because she remarried in 1980.
The Claimant cannot show that she is presently married to the NH and a California court is unlikely to consider Claimant and the NH currently married and would not find her eligible to inherit from the NH’s intestate estate. Even if the Claimant has a good faith belief that she is presently married to the NH, she is not cohabitating with him, so she cannot meet the regulatory requirement for a deemed marriage. Her 2005 marriage remains valid and she is not entitled to spouse’s or divorced spouse’s benefits on the NH’s record.
You asked whether, under California law, K~(Claimant) is currently married to the number holder (NH), A~, or was married to him for more than 10 years, such that she is entitled to spouse’s or divorced spouse’s benefits on the NH’s account.
No. Claimant remains married to her current spouse, who she married in 2005. The 2012 California state court order merely established the existence of her 1973 confidential marriage to the NH as a matter of state record. Claimant has not produced sufficient evidence to overcome the strong presumption that her three subsequent marriages were valid. Even if Claimant’s current marriage ends, because Claimant remarried in 1980, she cannot meet the duration requirement for entitlement to divorced spouse’s benefits on the NH’s account.
Claimant was born on December. A table detailing the relevant chronology is available at Appendix A.
According to Claimant’s November XX, 2005 and April XX, 2006 Applications for Retirement Insurance Benefits (RIB), Claimant married R~ in 1961 and divorced him in 1965 in Las Vegas, Nevada. On January XX, 2014, Claimant supplied the divorce decree, which confirmed that her marriage to R~ was dissolved on February XX, 1965.
Claimant next married and divorced G~. In her initial statements to the agency, Claimant stated that she had married G~ in 1968 and divorced him in 1969. However, according to publically available records from the Church of Latter-Day Saints, Claimant married G~ on August XX, 1967 in Ventura County. At the agency’s request, Claimant provided the Final Judgment of Dissolution from the Superior Court of California, County of Ventura, which showed that her marriage to G~ was dissolved on July XX, 1970.
According to Claimant’s April XX, 2013 declaration, on March XX, 1973, she married the NH in a religious ceremony in Thousand Oaks, California, at the Church of Jesus Christ of Latter Day Saints. Claimant stated that it was her understanding that no license was necessary and that the Church would register the confidential marriage with Ventura County. According to Claimant, the NH petitioned for adoption of Claimant’s three children on February XX, 1975, allegedly submitting a verified petition confirming that he had married Claimant on March XX, 1973, and asserting that they continued to cohabitate as spouses since their marriage.
Claimant and the NH lived together until they separated in August 1980, at which time they seem to have severed contact. In her RIB applications, Claimant initially averred that she and the NH had obtained a divorce. However, in her subsequent statements, Claimant confirmed that no formal dissolution of marriage was obtained.
When contacted telephonically by the agency, the NH reported that he had attempted to obtain a divorce from Claimant, but the Ventura County Clerk told him that because a marriage license was never filed with the county, their marriage was not valid. The agency has contacted the NH, but has been unable to secure a signed statement to date.
Thus, according to the NH and as confirmed by Claimant, the parties proceeded to remarry under the belief that a divorce was unnecessary.
Claimant submitted a marriage certificate showing that she married M~ on October XX, 1980 in Clark County, Nevada. Claimant’s original statement to the agency indicated that she married M~ in 1982.
According to the divorce judgment, Claimant and M~ had one biological child together, born on. Claimant divorced M~ on August , 1990, in Ventura County.
Claimant married N~ in Ventura County in 1989 or 1990, and divorced N~ in Los Angeles County in 1990.
Claimant married W~ in Las Vegas, Nevada in 1998, and divorced W~ on February XX, 2001, in Clark County, Nevada (Court Order provided).
Claimant married K2~ on April XX, 2005, in Las Vegas, Nevada (Marriage Certificate provided). According to agency records, Claimant also changed her name a number of times, some of which, but not all, coincided with her marriages. In 1959, Claimant’s record reflects her use of K~ as her original surname. Claimant changed her surname to A2~ in 1966; however, no associated marriage was reported. During the subsequent years, Claimant changed her surname as follows: in 1969 to G~, in 1970 to H~, in 1982 to M~, in 1994 to K~, and in 1998 to W~. She does not appear to use the surname K2~.
As detailed below, we have received no documentation indicating that Claimant or K2~ have taken action to secure an annulment or divorce, and they consider themselves married. Nonetheless, Claimant subsequently filed for auxiliary spouse’s benefits on the NH’s account on the theory that she remained married to the NH since 1973.
Based on statements provided by both Claimant and the NH, Ventura County apparently had no record of Claimant’s 1973 confidential marriage. Under California law, the parties could have registered the confidential marriage by filing a declaration at any time. However, Claimant maintains that the NH refused to join in such a declaration. Therefore, on December XX, 2011, Claimant filed a petition in the Los Angeles County Superior Court to establish the fact and validity of the 1973 marriage. See Cal. Fam. Code § 309; Cal. Health & Safety Code § 103450. In documents submitted to the agency, Claimant and her representative (her attorney for that proceeding) state that the NH was present at the March XX, 2012 hearing, and admitted that the marriage had occurred. A recent statement from K2~ indicates that he was also aware of and present for the court proceedings.
On April XX, 2012, the Court issued an Order Establishing Fact of Marriage, which establishes that Claimant and NH married on March XX, 1973 (Court Order provided), and a Court Order Delayed Certificate of Marriage (Certificate provided). Claimant has provided no evidence that she subsequently registered the court ordered marriage as directed by the court and required by state law.
Claimant sent letters dated October XX, 2012, to the Superior Courts of Los Angeles, Kern, and Ventura Counties—the three counties in which she believed that the NH may have domiciled since 1973— requesting that each clerk search the county records for a divorce between Claimant and the NH, which would have occurred between March 1973 and March 1983. All three counties reported that no records were found. Claimant provided a notice from the Deputy Clerk of the Los Angeles County Superior Court dated November XX, 2012. Claimant provided a notice from the Deputy Clerk of the Kern County Superior Court dated December XX, 2012. Claimant provided an undated notice from the Court Services Assistant of the Ventura County Superior Court.
Despite Claimant’s legal actions with respect to her marriage to the NH, she appears to remain married to K2~. Claimant listed K2~ as her spouse when she applied for RIB based on her own primary insurance amount in 2005. According to the Lancaster Field Office, Claimant continues to refer to K2~ as her present spouse in communications with the agency. Claimant and K2~ continue to use the same mailing address for their RIB payments, indicating that they still live together.
K2~ did not list Claimant as his spouse when he filed for RIB in 2010. However, on January XX, 2014, in response to the agency’s request for additional information, K2~ presented at the Lancaster Field Office and completed a sworn statement declaring that he did not list Claimant as his spouse on his RIB application because, at the time he filed, Claimant was “going through the court process to find out if she was still legally married” to the NH. K2~ further stated that “[his] wife would love to be able to file under [his] Social Security Record because she would receive a higher benefit amount. The reason she has not filed yet is [that they] do not know if her marriage to [the NH] is valid or if [their] marriage is valid.” Although K2~ claims that the court proceedings began prior to his RIB application in 2010, the agency has only received documents regarding the December 2011 court petition. K2~ does not explain the date discrepancy or indicate whether some other legal proceedings may have preceded the Claimant’s 2011 petition.
The NH married B~ on November XX, 1985, and they remain married today. On February XX, 2012, the NH applied for RIB, attesting that he was presently married to B~ and had no prior marriages that lasted 10 years or more. B~ filed for and has received RIB since January 2002 based on her own primary insurance amount.
The Social Security Act (Act) looks to state law to determine whether a spousal relationship exists. Act § 216(h)(1)(A)(i); see also 20 C.F.R. § 404.345; Program Operations Manual System (POMS) RS 00202.001.A.1 (“A legal spouse must be validly married to the NH under the laws of the State of the NH’s domicile at the time the claimant files an application or during the life of the application.”) If a spousal relationship cannot be established under state law, a person may still be eligible for benefits based upon a “deemed valid marriage . . . if, in good faith, [the claimant] went through a marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment.” 20 C.F.R. § 404.346; see also POMS RS 00202.001.A.2. To be entitled to benefits as the result of a deemed valid marriage, the purported spouse must be cohabitating with the insured, if living, at the time that he or she applies for spouses benefits. 20 C.F.R. § 404.346.
If the courts in the state of domicile would not find the parties validly married, the applicant may be deemed the spouse of the insured if she could inherit as a spouse under the state laws for intestate distribution of personal property. Act § 216 (h)(1)(A)(ii); 20 C.F.R. § 404.345.
A spouse age 62 or older of an insured person who is entitled to old-age or disability benefits is also entitled to benefits if the relationship has lasted at least one year and the applicant is not entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full spouse’s benefit. Act § 202(b); see also 20 C.F.R. § 404.330; POMS RS 00202.001; SSA Handbook § 305.
In the case of conflicting marriages, most states presume that the most recent marriage is valid. SSA Handbook § 310 (“If all the information and evidence supplied still leaves doubt as to whether your last marriage(s) ended, then your most recent marriage will be presumed the valid one.”). If there is information indicating the applicant’s marriage to the NH may have terminated, the agency requires statements from both parties to establish that the marriage is not terminated. POMS RS 00202.070.B.
A divorced spouse is entitled to spouse’s benefits on the account of an insured person who is entitled to old-age benefits if the divorced spouse was validly married to the insured under state law, was married to the insured for at least 10 years immediately before the divorce became final, is presently unmarried, is age 62 or older, and is not entitled to old-age or disability benefits based upon a primary insurance amount that is equal to or larger than the full spouse’s benefit. Act § 202(b); see also 20 C.F.R. § 404.331, POMS RS 00202.005; SSA Handbook § 311.
Here, we apply the laws of California, the state in which the NH is domiciled, in determining the validity and duration of Claimant’s marriage to the NH.
In California, “[a] ceremonial marriage is presumed to be valid.” Cal. Evid. Code § 663. In order to validate a marriage, the marriage “shall be licensed, solemnized, and authenticated, and the authenticated marriage license shall be returned to the county recorder of the county where the marriage license was issued, as provided in this part.” Cal. Fam. Code § 306. However, “[n]oncompliance with this part by a nonparty to the marriage does not invalidate the marriage.” Cal. Fam. Code § 306; see also Estate of D~, 118 Cal. Rptr. 2d 143, 155 (Cal. Ct. App. 2002) (explaining that “a failure by the person solemnizing the marriage to return the certificate of registry would not invalidate the marriage”). The POMS indicate that, in California, “where at least one of the parties to an invalid [ceremonial] marriage . . . entered into the marriage in good faith believing that it was valid, the spouse had status as a putative spouse and inheritance rights as a spouse so long as such good faith belief continued.” POMS GN 00305.085.B.1. If, after learning of the defect, “the parties undertook within a reasonable time to legalize their marriage, then the status as a spouse continued.” POMS GN 00305.085.B.1.3.
California law provides for “confidential” marriages which have different licensing and disclosure requirements. At the time of Claimant’s confidential marriage to the NH, California Civil Code section 4213 (previously Section 79) did not require the parties to obtain a license in advance of the marriage ceremony if the couple were not minors, were already living together as husband and wife, and were married by a member of the clergy. California amended its confidential marriage code provision in 1977 to expand the group of persons authorized to solemnize such marriages, and a 1981 revision substantially altered the procedures. See 11 WITSUM Ch. XV, § 48 (2005).
As section 4213 then provided, “[a] certificate of such [confidential] marriage shall be made by the clergyman, delivered to the parties, and recorded upon the records of the church of which the clergyman is a representative. No other record need be made.” The state permits confidential marriages, a practice dating back to the 1800s, “to shield the parties and their children, if any, from the publicity of a marriage recorded in the ordinary manner, and thereby to encourage unmarried persons who have been living together as man and wife to legalize their relationship.” Encinas v. Lowthian Freight Lines, 69 Cal. App. 2d 156, 163 (Cal. Ct. App. 1945).
Pursuant to California Family Code section 309, the current confidential marriage provision, “[i]f either party to a marriage denies the marriage, or refuses to join in a declaration of the marriage, the other party may proceed, by action pursuant to section 103450 of the Health and Safety Code, to have the validity of the marriage determined and declared.” California’s Health and Safety Code section 103450, thus, allows a beneficially interested person to file a petition with the clerk of the superior court in and for the county in which the marriage is alleged to have occurred, or the county of residence of the person whose marriage it is sought to establish, for an order to judicially establish the fact of, and the time and place of, a marriage that is not registered or for which a certified copy is not obtainable. Cal. Health & Safety Code § 103450(a). Upon affirming such a petition, the superior court judge issues an Order Establishing Fact of Marriage and a Court Order Delayed Certificate of Marriage, which must be registered with the California Office of Vital Record. “Court Order Delayed Certificate of Marriage”, California Department of Public Health, January 2012, available at http://www.cdph.ca.gov/certlic/birthdeathmar/Documents/CourtOrderDelayed MarriagePAMPHLET-(01-13)-MERGED.pdf (last visited Nov. 7, 2013). To do so, the petitioner must submit a certified copy of the Order Establishing Fact of Marriage, the completed Court Order Delayed Certificate of Marriage, and pay a $20 fee. Id. Once the request has been received and evaluated, estimated at approximately 6 weeks, the Office of Vital records sends the petitioner a postcard notifying him or her that the request was accepted. Id. Additional time is necessary for processing the registration. Id.
“California law provides, with limited exceptions, that an individual can only be married to one person at a time.” Seaton v. Seaton, 133 Cal. Rptr. 3d 50, 52 (Cal. Ct. App. 2011) (citing Cal. Fam. Code § 2201). California Family Code section 2201 provides: “(a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning, unless: [¶] (1) the former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.”
California, like most jurisdictions, employs the presumption that once a marriage has been shown to exist, it is presumed to be legal and valid, even if it is a second marriage. E.g., Vargas v. Superior Court, 88 Cal. Rptr. 281 (Cal. Ct. App. 1970). This presumption is said to be one of the strongest presumptions known to the law. Marsh v. Marsh, 250 P. 411 (Cal. Ct. App. 1926). Even a bigamist may be estopped from questioning the validity of a second marriage. See 32 Cal. Jur. 3d Family Law § 79 (citing Rediker v. Rediker, 221 P.2d 1 (Cal. 1950) (holding that a person who sought a foreign divorce and remarried was estopped from later asserting the invalidity of the foreign divorce to avoid obligations to the second spouse); In finding that the plaintiff was estopped from asserting the invalidity of a divorce because he had aided and counseled the defendant in getting it so that she would marry him, the court in R~ notes that “To hold otherwise protects neither the welfare nor the morals of society but, on the contrary, such holding is a flagrant invitation to others to attempt to circumvent the law, cohabit in unlawful state and when tired of such situation, apply to the courts for a release from the indicia of the marriage status.” R~, 221 P.2d at 7 (quoting Harlan v. Harlan, 161 P.2d 490 (Cal. Ct. App. 1945)). In re Marriage of R~, 187 Cal. Rptr. 887 (Cal. Ct. App. 1982) (holding that a person who participates in a formal marriage ceremony with a second person knowing that the second person had not obtained a final divorce is estopped from asserting the invalidity of marriage to the second person to avoid spousal support)). POMS GN 00305.175 similarly recognizes that a party may be estopped to deny the validity of the termination of a marriage if she remarried or otherwise accepted or acted in recognition that the termination was valid (e.g., knew of the termination of marriage and allowed it to stand unchallenged for many years).
The validity of a second marriage arises as soon as the second marriage is proved, and even where there is no proof regarding termination of the first marriage. Luckett v. La Tour, 9 P.2d 886 (Cal. Ct. App. 1932) (holding that “[e]ven without evidence of the divorce proof of the second marriage would raise the presumption that it was valid and the burden of proving the contrary was upon the appellant”). “The basis of the presumption as applied to a subsequent marriage is a policy decision that a person entering into a subsequent marriage will be presumed not to have committed bigamy.” 32 Cal. Jur. 3d Family Law § 74 (citing Estate of S~, 507 P.2d 78 (Cal. 1973), and Patillo v. Norris, 135 Cal. Rptr. 210 (Cal. Ct. App. 1976)). The presumption in favor of the second marriage is stronger where there are children born of the later marriage, and increases as time passes. 55 Corpus Juris Secondum Marriage § 55 (collecting cases).
California’s policy decision to presume the validity of the second marriage has significance for any party seeking to prove the continuation of the first marriage. “The presumption of the validity of the second marriage displaces the presumption of continuance of the first relation.” 32 Cal. Jur. 3d Family Law § 78; see, e.g., M~, 250 P. at 413 (noting that “[i]t has been held time and again by the supreme court of this state that mere proof of a prior marriage and the continued life of both spouses is not sufficient to make a case against a second ceremonial marriage, that there must be a further showing that the first marriage has not been set aside by judicial decree”). “[T]he burden is cast upon the party asserting guilt or immorality to prove the negative—that the first marriage had not ended before the second marriage.” M~, 250 P. at 413 (internal citation omitted); see also Estate of S~, 507 P.2d at 83 (relying on Estate of S~, 201 P.2d 539 (Cal. 1949) and V~, 88 Cal. Rptr. 281). Because of the strength of this presumption, courts have generally required a high degree of proof to overcome it. See In re H~’s Estate, 160 P. 548 (Cal. 1916); Moran v. Superior Court, 100 P.2d 1096 (Cal. Ct. App. 1940).
A search of the public records in jurisdictions where the insured resided could rebut the presumption that the second marriage was valid. See, e.g., Estate of S~, 201 P.2d at 541 (stating that, “had an annulment [of the first marriage] been secured[,] the existence of such a decree would have been discovered in the search of [such] records”); see also V~, 88 Cal. Rptr. at 283 (citing Cal. Evid. Code §§ 604, 606, 663) (holding that no search need be performed in jurisdictions other than those where the decedent resided or was domiciled); accord Cal. Evid. Code § 605. Other “cogent and compelling” evidence could also rebut the presumption. See V~, 88 Cal. Rptr. at 285 (relying on rebuttal evidence such as decedent’s continued cohabitation with his first wife).
California law also provides that a court may enter an order of dissolution of a marriage retroactively, i.e., “nunc pro tunc,” Nunc pro tunc means “now for then” in Latin. It is a phrase applied to acts allowed to be done after the time when they should have been done, with a retroactive effect. Black’s Law Dictionary 964 (5th ed. 1979). if it determines that by “mistake, negligence, or inadvertence, the judgment has not been signed, filed and entered.” Cal. Fam. Code § 2346(a). The history of nunc pro tunc dissolution of marriages in California is set forth in In re H~ Estate, 182 P.2d 253 (Cal. Dist. Ct. App. 1947). As the H~ court explained, when enacted by the California Legislature in 1935, the purpose of then-Civil Code Section 133 (now Family Code Section 2346), was to “validate otherwise void marriages and thus relieve the parties to such marriages from the stigma and other consequences of bigamous relationships into which they might innocently fall by reason of oversight or neglect to have a final decree entered. Mere entry of the nunc pro tunc judgment acts retroactively to restore them to the status of single persons and at the same time gives them and their later acquired spouses legal married status.” Id. at 553; see also Hurst v. Hurst, 39 Cal. Rptr. 162, (Cal. Dist. Ct. App. 1964) (“entry of a final decree of divorce nunc pro tunc usually has as its purpose the validation of a marriage which would otherwise be bigamous”). Section 2346(b) provides that the court may act on its own motion or upon the motion of either party to the proceeding. Upon entry of judgment, the parties have the same rights that they would have had if the dissolution of marriage had been entered on the date when it originally could have been entered. Cal. Fam. Code. § 2346(d); see also POMS PR 06205.006 (specifically PR 03-015) (discussing prior California law, and explaining rationale for nunc pro tunc entry of judgment).
Although unpublished, the case of In re Marriage of L~, 2006 WL 697905 (Cal. Dist. Ct. App. March 20, 2006), is helpful for analyzing how a California court would view Claimant’s current marital status. Based on the advice of the clerk of the court that she would automatically be divorced six months after she served her husband with process, the appellant in L~ did not complete the necessary steps to obtain a final judgment of dissolution of marriage to her first husband. Id. at *1. Upon realizing the oversight, appellant obtained a dissolution, but she had already remarried. Id. When appellant and her second husband began having marital trouble, he sought to annul the marriage on the ground that appellant had been married to her first husband at the time of her second marriage. Id. at *2. The appellant then sought an ex parte application to have the dissolution of marriage entered nunc pro tunc to a date before her second marriage, which the court granted. Id. A court subsequently granted the second husband’s request to nullify the marriage, explicitly disregarding the nunc pro tunc dissolution. Id. at *2. In reversing the judgment of nullity, the Court of Appeals found that “[a]s established by long-standing case law, a nunc pro tunc dissolution judgment should be considered by a court in evaluating an annulment petition, even when the nunc pro tunc judgment was obtained after the filing of an annulment action by a subsequent spouse.” Id. at *5 (collecting cases).
Here, Claimant has reached age 62, rendering her potentially entitled to spouse’s or divorced spouse’s benefits; however, she has not sustained her burden of proof for the remaining elements of either benefit on the NH’s account. Under California law, Claimant cannot show that she is presently married to the NH. Even if the Claimant has a good faith belief that she is presently married to the NH, she is not cohabitating with him, so she cannot meet the regulatory requirement for a deemed marriage. See 20 C.F.R. § 404.346.
See 20 C.F.R. §§ 404.330, 404.346. Alternatively, Claimant cannot show either that she was married to the NH for 10 years or is presently unmarried; thus, she cannot meet the requirement for divorced spouse benefits. See 20 C.F.R. § 404.331.
Claimant apparently maintains that the 2012 Court Order Delayed Certificate of Marriage means that her 1973 confidential marriage to the NH continues to exist. Based on the factual background provided and the law as it existed in 1973, the California court appears to have properly found that the NH and Claimant entered into a confidential marriage as Claimant contends. As the POMS reflects, the agency has previously issued opinions pertaining to the validity of confidential marriages in California. See POMS PR 05405.006 California. In PR 86-006, issued on February 13, 1986, the agency held that a couple who exchanged vows in a ceremony presided over by an acquaintance who claimed to be a self-ordained minister could meet the requirements to establish a confidential marriage in accordance with California Civil Code section 4213 even though they had not obtained a marriage license, were not issued a marriage certificate, and for whom no civil record of marriage existed. As PR 86-006 found, as long as there is credible evidence that the parties held themselves out as married prior to the confidential marriage ceremony, “a confidential marriage can be made out despite the dubious credentials of the officiating minister or the failure of this clergyman to issue a marriage certificate.” As PR 86-006 further noted, “Section 4200 of the Civil Code provides that noncompliance with procedural requirements such as these ‘by others than a party to a marriage does not invalidate it.’” Similarly, PR 82-004, issued on March 19, 1982, found that a confidential marriage solemnized in a private ceremony performed under section 4213 was neither void nor voidable despite the parties having allegedly misrepresented that they were living together as husband and wife prior to the marriage. Here, Claimant’s 1970 surname change to B~ indicates that the parties were likely cohabitating and presenting themselves as married prior to their alleged confidential marriage ceremony in 1973.
PR 87-013, issued on August 14, 1987, concluded that although the participants in a confidential marriage ceremony had misrepresented that they had both obtained the age of consent prior to entering a confidential marriage pursuant to Civil Code Section 4213, voluntary cohabitation after attaining the age of consent negated any defects in the marriage ceremony. Therefore, the agency held that because the marriage was not legally terminated prior to the number holder’s death, the claimant (and not the number holder’s subsequent wife) was his widow under California law and, consequently, for purposes of Social Security benefits. This case is, however, distinguishable from the instant matter because the number holder in PR 87-013 could have obtained a divorce and in not doing so, knowingly entered into a bigamist marriage that was void or voidable (based on the unclear timing of the separation and subsequent marriage and birth of an additional offspring, the second wife could have also been aware that she was entering into a bigamist marriage). Further, here, unlike in Opinion B, Claimant has not sufficiently proven that the NH has not sought to terminate the marriage or alternatively that a court would not enter a nunc pro tunc divorce as discussed in the text.
However, Claimant misunderstands the legal significance of that court order.
Claimant maintains that her 1973 marriage continues to exist because neither party sought dissolution of this marriage. Claimant provided notices from November and December 2012 from the three counties in which the NH was believed to have domiciled since 1973, all stating that no records were found for a divorce between Claimant and the NH occurring between March 1973 and March 1983. The NH does not claim to have sought a divorce; rather, he claims that he relied on advice that a divorce was not necessary. Claimant’s theory that the marriage continues fails for two reasons: First, while the court order establishes the fact of the 1973 marriage, Claimant has failed to show that she properly registered the court ordered marriage. If the marriage is not registered with the state, neither she nor the NH will be afforded an opportunity to initiate an action to dissolve the marriage (e.g., a nunc pro tunc divorce). Notably, a search of divorce records prior to the 2012 court order (as Claimant provided here) could not provide information about whether the NH sought or obtained a dissolutation after that order.
Second, Claimant has not supplied any evidence to refute the strong presumption that her subsequent marriages were valid and she would be estopped (prevented) from doing so under California law based on her conduct in remarrying three more times. See 32 Cal. Jur. 3d Family Law § 79 (collecting cases); POMS GN 00305.175. Any argument that Claimant would make regarding putative spouse status would similarly not refute the strong presumption that her subsequent marriages were valid, most notably her current marriage to K2~.
Further, Claimant admitted being separated from the NH for over 30 years, and having entered into and ending several marriages before she sought the Court Order Delayed Certificate of Marriage. She, thus, obtained a legal benefit from not having the 1973 confidential marriage registered – ease of remarriage – and could not credibly claim lack of knowledge with respect to divorce proceedings. Because Claimant divorced several times before marrying the NH, she was aware and knowledgeable of divorce proceedings. California courts will look to the equities and entirety of circumstances in making determinations on the existence or continuation of marriages. See Estate of S~, 201 P.2d at 540 (“In any particular case, the question must be determined, like any other question of fact, upon a consideration of the attending facts and circumstances, and such inferences as fairly and reasonably flow therefrom.”). Were Claimant to assert any current spousal rights under California law in relation to the NH, a California court would likely conclude that her marriage to the NH ended in 1980 when she married M! and could order a formal nunc pro tunc dissolution of Claimant’s marriage to the NH. See Cal. Fam. Code § 2346.
In sum, a California court is unlikely to consider Claimant and the NH currently married and would not find her eligible to inherit from the NH’s intestate estate. Claimant and the NH provided consistent statements regarding their separation and each has subsequently remarried. Claimant’s subsequent marriages are presumptively valid under California law and Claimant has not submitted any contrary evidence; rather, she has submitted valid marriage and divorce records for all of her other marriages. Her 1980 marriage to M~ (which lasted 9 years and produced biological offspring) served to effectively terminate her marriage to the NH and her 2005 marriage to K2~ continues to date. Similarly, the NH is still married to the spouse he married in 1985 and, as set forth above, the law provides a strong presumption that parties acting in good faith are not bigamists.
Claimant bears the burden of establishing all eligibility requirements. As such, because Claimant failed to rebut the presumption that her marriage to the insured ended at the latest when she married M~ in October 1980 and that her 2005 marriage to K2~ remains valid, she is not entitled to spouse’s or divorced spouse’s benefits on the NH’s record. See 20 C.F.R. §§ 404.330, 404.331, 404.345, 404.346.
Claimant was born
Claimant listed her surname as K~
Claimant married R~
Claimant divorced R~
Claimant changed her surname to A2~
Claimant married G~
Claimant changed her surname to G~
Claimant divorced G~
Claimant changed her surname to B~
Claimant allegedly married the NH
The NH allegedly adopted Claimant’s children
Claimant and the NH separated
Claimant married M~
Claimant changed her surname to M~
Claimant had a biological child with M~
The NH married B~
Claimant divorced M~
Claimant married and divorced N~. Claimant has provided disputing accounts regarding when she married N~.
Claimant changed her surname to K~
Claimant married W~ and changed her surname to W~
Claimant divorced W~
Claimant married K~
Claimant filed for RIB
Claimant filed a petition to establish the fact of her marriage to the NH
The NH applied for RIB
A hearing was held regarding Claimant’s petition to establish the fact of marriage
The court issued an order establishing fact of Claimant’s 1973 marriage to the NH
Claimant sent letters to three counties regarding divorce records
. Claimant applied for, and received, disability benefits beginning October XX, 1999.
. S~’s death certificate lists “D~,” Claimant’s maiden name, as the surviving spouse. In California, a death certificate is created with information that medical facilities or funeral directors enter into the California Electronic Death Registration System (CEDRS). The state does not require verification of marital information entered into the CEDRS. Thus, this information is not reliable evidence of a legally valid spousal relationship.
. The second witness, K~, is deceased.
. You did not ask for an opinion, and we did not review, whether Claimant meets the other criteria for widow’s benefits.
. If a claimant for widow’s benefits is remarried, the agency will disregard the marriage for purposes of determining widow’s benefits in limited circumstances that are not applicable here: (1) the claimant remarried after the age of 60; (2) the claimant remarried between the ages of 50 and 60, is now age 60 or older, and at the time of remarriage was entitled to disabled widow’s benefits; (3) the claimant is now between age 50 and 60, remarried after age 50, and met certain disability-related requirements before remarriage. See 20 C.F.R. § 404.335(e); POMS RS 00207.003.
. The failure of a nonparty to the marriage to comply with the statutory requirements does not invalidate the marriage, such as would be the case if the person performing the marriage ceremony did not return the authenticated certificate of registry to the county recorder. Cal. F