This is in response to your request for our assistance in determining whether the
wage earner, Leroy J~ ,'s first undissolved marriage was valid. Even if valid, you
have inquired if Leroy's first "wife" would be estopped from denying the termination
of her marriage because of her subsequent re-marriages. You have requested our opinion
because Leroy J~ 's second wife, Christine J~ ("Christine"), has applied for wife's
benefits on Leroy's account. For the reasons discussed below, we conclude that Christine
is neither Leroy's legal nor putative spouse.
Based upon the materials furnished to us, the relevant facts are as follows. Although
on his June 9, 1975 application for benefits Leroy listed only his marriage to Christine,
the claimant, in a subsequent statement Leroy acknowledged that he was first married
to Ruth M. D~ . A marriage certificate shows that he married Ruth M. in Mississippi
on October 21, 1936. At the time of the marriage, Ruth M. was only fourteen years
old and did not have parental consent to marry. After seven or eight months, they
separated. Leroy states .that he did not get a divorce because "Down south we didn't
get a divorce, we just separated and went our own way." Ruth M. confirms that she
never obtained a divorce from Leroy.
On January 14, 1941, Leroy married Christine in Mississippi. In Leroy's 1975 application
for benefits and a 1983 report of contact, it is stated that Christine and Leroy are
separated, but apparently not divorced. In the 1983 report of contact, you also stated
that Christine cannot be Leroy's putative spouse because of her own statement that
she knows of Leroy's undissolved marriage to Ruth M. Both Christine and Leroy reside
After Ruth M.'s separation from Leroy, she married John P~ on February 21, 1940 in
Mississippi. She lived with John P~ until his death in 1976. She subsequently married
Lloyd W~ and is receiving widow's benefits on his account.
Pursuant to the Social Security Act and its implementing regulations, a claimant is
entitled to benefits as the wife or widow of a wage earner on the basis of (1) a valid
ceremonial marriage, (2) a "deemed" or de facto marriage, (3) a common-law marriage
recognized under applicable state law, or (4) a "putative" marriage recognized under
applicable state law. 42 U.S.C. §416(h)(1); 20 C.F.R. §§404.344 - 404.346, 404.723
- 404.727. The law of the state in which the wage earner is domiciled at the time
of the claimant's application governs. In this case, Illinois law controls.
A "deemed" marriage that is a marriage in which the claimant went through a marriage
ceremony with the wage earner in good faith although the marriage is later determined
to be invalid due either to a defect in the procedure followed or to a prior undissolved
marriage of one of the parties. The claimant must have been living with the wage earner
at the time the application for benefits is filed if the wage earner is living. 42
U.S.C. §416(h)(1)(B); 20 C.F.R. §404.346. Here, Christine could not qualify as Leroy's
"deemed" wife because she was separated from him at the time of her application.
Likewise, Christine could not be eligible for benefits as a common law spouse because
Illinois does not recognize common-law marriages entered into after June 30, 1985.
Ill. Ann. Stat. Ch. 40 ~214 (S~-H~). Christine is not entitled to benefits as Leroy's
"putative" spouse because her "putative" spouse status ceased when she discovered
that Leroy had a previous undissolved marriage. Upon that discovery, her good faith
belief in the validity of her marriage ceased. Ill. Rev'. Star. ch. 40 ~~305.
Therefore, only if Christine is Leroy's legal wife will she be entitled to "wife's"
benefits. We have previously determined that Illinois will not apply Mississippi's
doctrine of estoppel. That doctrine precludes a spouse, here Ruth M., who separated
from her first spouse and entered into a subsequent bigamous marriage from 'denying
the termination of the former marriage. See
Minne B~, RA V (A~) to W~, ARC, SSA-V, 1—1/4/82; Hilliard B~ , ~ , RA V (A~) to W~, ARC,SSA-V,
10/16/85. Hence, unless Leroy's and Ruth M.'s Mississippi marriage was void ab initio,
Christine cannot be Leroy's legal wife.
Illinois follows the general rule that the validity of a marriage depends upon the
law of the place where it occurs, except where contrary to the public policy of Illinois.
S.H.A. ch. 40, §213 (1980). See Walker v. Walker, 316 Ill. App. 251, 44 N.E.2d 937 (1942); Ertel v. Ertel, 313 Ill. App. 326, 40 N.E.2d 85 (1942). Thus, Illinois would recognize a marriage
validly entered into in Mississippi.
Although a ceremonial marriage with a spouse under the age of fifteen is not valid
in Mississippi, Miss. Code §93-1-5, failure to adhere to this statutory provision
will not effect the validity of such marriage if it is followed by cohabitation. Miss.
Code 893-1-9; Hunt v. Hunt, 172 Miss. 732, 161 So. 119 (1935) (Marriage of girl 13 years and 10 months of age
followed by cohabitation not voidable on account of girl's age alone). Because Leroy
and Ruth M. lived together for several months after their marriage, Mississippi would
consider the marriage valid. See Richmond P. M~, ~, ~ RA IX (F~) to RC, SSA-IX, 8/10/82.
The question remains, however, whether a marriage with a fourteen year old girl would
be void as against Illinois public policy notwithstanding its validity in Mississippi.
Three sections of the Illinois Marriage and Dissolution Act are relevant to our analysis.
Section 216 prohibits Illinois residents from going to another state to avoid prohibited
marriages in Illinois. Since neither Leroy nor Ruth M. were Illinois residents at
the time of their marriage, this section would not be applicable. Section 208 permits
the issuance of a license to a party 16 or 17 years old after a reasonable effort
has been made to notify parents. This section might be interpreted to mean that marriages
for individuals under sixteen are not allowable. Most significant, however, is Section
212 which lists the types of marriage which Illinois prohibits. Marriage with a minor
is not among the list of prohibited marriages. Therefore, it appears that the legislature
did not intend to render void those marriages entered into without full compliance
with such other statutory requirements such as age of the parties. See Boysen v. Boysen, 301 Ill. App. 572', 23 N.E.2d 231 (lst Dist. 1939).' See Chester A. B~ , ~, RA V (C~)to Reg. Rep., BRSI, Kansas City Payment Center, 7/27/72.
Further, Illinois courts have held that a marriage in which one or both of the parties
were minors, who married without their parents' consent, had to be treated as valid
unless declared void by a court. People v. Reynolds, 217 Ill. App. 577 (1920). No such declaration was obtained regarding Leroy and Ruth
M.'s marriage. Hence, we believe that Illinois would not consider Leroy and Ruth M.'s
marriage against public policy.
Leroy and Ruth M.'s marriage was valid in Mississippi. Because Illinois will not apply
Mississippi's rule of estoppel, Ruth M. would not be estopped from denying the termination
of her first marriage even though she has "re-married." Hence, Christine is not Leroy's
Based upon this opinion, we recommend that you investigate whether Ruth M. is entitled
to continue to receive widow's benefits on Lloyd W~ account.