You asked whether the marriage between the claimant and the number holder is void
under North Carolina law because the claimant had not attained age eighteen, the legal
age of consent to marry in North Carolina, at the time of the marriage.
We believe the claimant and the number holder were lawfully married under North Carolina
B~ (Claimant) and F~, the number holder (NH), participated in a marriage ceremony
on July XX, XXXX, in North Carolina. The marriage license and certificate indicate
Claimant was eighteen at the time of her marriage, but Claimant admits she and NH
ran away to get married and she was only seventeen at the time. Claimant reported
that children were born during the marriage. Claimant obtained a judgment granting
her a divorce from NH on January XX, XXXX, in North Carolina. In granting the divorce,
the judge found that Claimant and NH were lawfully married. NH died on September XX,
XXXX, and was a resident of Virginia at the time of his death.
Claimant married W~ on December XX, XXXX, in Virginia. That marriage ended with Mr.
G~’s death on May XX, XX. Claimant currently receives widow’s insurance benefits on
Mr. G~’s record, and is now seeking divorced widow’s insurance benefits on the NH’s
record because the benefit amount would be higher.
Under the Social Security Act (Act), a claimant may be eligible for widow’s insurance
benefits if she is the “surviving divorced wife” of an individual who died fully-insured.
See Act § 202(e)(1); 20 C.F.R. § 404.336 (2009). “Surviving divorced wife” means “a woman
divorced from an individual who has died, but only if she had been married to the
individual for a period of 10 years immediately before the date the divorce became
effective.” Act § 216(d)(2); see 20 C.F.R. § 404.336(a). Claimant’s alleged marriage to NH lasted for more than ten
years immediately prior to the day of the divorce judgment. Therefore, if Claimant
and NH were validly married, Claimant would be NH’s “surviving divorced spouse” for
the purposes of widow’s insurance benefits. See Act §§ 202(e)(1), 216(d)(2); 20 C.F.R. § 404.335(a).
According to the information provided, Claimant and NH participated in a marriage
ceremony, and were divorced, in North Carolina and NH resided in Virginia at the time
of his death. The Program Operations Manual System (POMS) explains that a divorce
presupposes that the marriage terminated by that divorce was a valid marriage; thus,
proof of divorce usually constitutes evidence of the validity of the divorced spouses’
marriage. See POMS RS 00202.075(A)(2)(a). However, proof of validity of the marriage is required when “information
raises a reasonable doubt of the validity of the marriage.” See POMS RS 00202.075(A)(2)(b).
When determining the validity of a marriage, SSA generally looks to the laws of the
state where the insured had a permanent home when he died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.336(a)(1), 404.344, 404.345 (2009). In this
case, Virginia law controls because NH resided in Virginia at the time of his death.
This opinion does not address whether the out-of-state marriage between Claimant and
NH is valid under the laws of Virginia, nor does it address whether Claimant was married
to NH for purposes of the Act (which requires an application of Virginia law). The
only issue addressed here is whether the marriage is void or voidable under North
Under North Carolina law, a valid marriage is created by the consent of a male and
female person “who may lawfully marry” to take each other as husband and wife expressed
in the presence of each other and in the presence of a minister or a magistrate, Claimant
and NH were married by G. G. N~, Justice of Peace. The office of justice of the peace
was later abolished in each county upon the establishment of a district court therein.
See N.C. Gen. Stat. § 7A-176 (2009) (enacted in 1965). or in accordance with any mode
of solemnization recognized by any religious denomination or Indian Nation or Tribe.
See N.C. Gen. Stat. § 51-1 (2009); see also N.C. Gen. Stat. § 51-6 (2009) (solemnization without marriage license unlawful; at
least two witnesses to marriage ceremony required). North Carolina law provides that
all marriages “between a male person under 16 years of age and any female, or between
a female person under 16 years of age and any male . . . shall be void.” N.C. Gen.
Stat. § 51-3 (2009). The statutory language in effect at the time Claimant and NH
were married is consistent with the current language. See Ivery v. Ivery, 129 S.E.2d 457, 461 (N.C. 1963) (discussing the statutory language in effect in the
1960’s). However, “[n]o marriage followed by co-habitation and the birth of issue
shall be declared void after the death of either of the parties for any of the causes
stated in this section North Carolina law also prohibits marriages between persons
1) nearer of kin than first cousins, or between double first cousins; 2) either of
whom has a husband or wife living; 3) either of whom is physically impotent; and 4)
either of whom is at the time incapable of contracting from want of will or understanding.
See N.C. Gen. Stat. § 51-3. except for bigamy,” and “[n]o marriage by persons either
of whom may be under 16 years of age, and otherwise competent to marry, shall be declared
void . . . when a child shall have been born to the parties unless such child at the
time of the action to annul shall be dead.” Id. Given these exceptions, the Supreme Court of North Carolina has held that “the word
‘void,’ used in the statute, will be construed to mean ‘voidable,’ thus rendering
the marriage valid until it has been declared void by a court of competent jurisdiction
in an action directly attacking the validity of the marriage.” Ivery v. Ivery, 129 S.E.2d 457, 462 (N.C. 1963); see also Fulton v. Vickery, 326 S.E.2d 354, 358 (N.C. Ct. App. 1985) (“only bigamous marriages have thus far been
declared absolutely void”); N.C. Op. Att’y Gen. Op., 2001 WL 1712684, at *1 (Oct.
9, 2001) (advisory opinion noting that pursuant to § 51-3 underage marriages are merely
Furthermore, the Supreme Court of North Carolina has held that where a marriage is
voidable because one of the parties was underage at the time of the marriage, the
“marriage may be ratified by the subsequent conduct of the parties in recognition
of the marriage.” Ivery, 129 S.E.2d at 462. In other words, the parties may ratify the marriage by living
together after the underage participant reached the age of consent. See Sawyer v. Slack, 146 S.E. 864, 865 (N.C. 1929); see also N.C. Op. Att’y Gen. Op., 2001 WL 1712684, at *1 (questioning whether underage marriages
can be declared invalid when ratified by cohabitation after the underage participant
reached the age of consent).
Under North Carolina law, the underage marriage between Claimant and NH was at most
voidable. See N.C. Gen. Stat. § 51-3; Ivery, 129 S.E.2d at 462; see also N.C. Gen. Stat. § 51-2(a1) (2009) (parental consent required for marriage of persons
over sixteen and under eighteen). We do not have sufficient information to determine
if Claimant and NH ratified their marriage by residing together after Claimant reached
the age of consent. However, as discussed above, voidable marriages are valid until
declared otherwise by a court of competent jurisdiction in an action directly attacking
the validity of the marriage. In this case, we have no evidence that anyone attacked
the validity of the marriage. Rather, in granting their divorce, a North Carolina
court specifically found Claimant and NH were “lawfully married.” Therefore, Claimant
and NH were lawfully married under North Carolina law.
We believe Claimant and NH were lawfully married under North Carolina law. However,
we express no opinion regarding the validity of the marriage under Virginia law. If
you have any questions regarding Virginia law, or about how Virginia law should be
applied under the Act, please contact the Office of the Regional Chief Counsel, Region
Mary A. S~
Regional Chief Counsel
Jessica V. J~
Assistant Regional Counsel