Based upon the advice you received from Region IV on March 8, 2010, indicating that the S~ and P~ underage marriages were valid under North Carolina
law, you requested our opinion on whether you could apply Program Operations Manual
System (POMS) section GN 00305.005(B)(1) to determine the validity of the S~ and P~ marriages.
Because the P~ and S~ marriages in North Carolina did not violate the law or public
policy of Virginia, we believe that it is appropriate to apply North Carolina law
in determining whether these marriages were valid in accordance with the policy in
POMS section GN 00305.005(B)(1).
You have asked for our advice on the limited issue of whether the application of POMS
section GN 00305.005(B)(1), which states that the validity of a marriage is ordinarily determined by the
law of the place where it occurred, would be appropriate in this case. You have previously
received advice from Region IV indicating that the underage marriages of these claimants
were valid under North Carolina law. For the issue you have presented to us, the pertinent
facts are as follows:
• Claimant Billie S~ married NH P~ on July 16, 1960. S~ admitted that she ran away
to North Carolina to get married because she was only 17 at the time of the marriage.
NH P~ was a resident of Virginia at the time of his death. S~ married Wayne E. G~
on December 23, 1979, and will hereinafter be referred to as Claimant G~.
• Claimant Shelvey J. S~ married NH Clyde S~ on April 3, 1964, in North Carolina.
According to Shelvey’s date of birth on her application for widow’s benefits, she
would have been 15 at the time of the marriage. Although she alleged that she had
parental consent to marry, she has no proof because the records were allegedly destroyed
after five years. NH S~ was a resident of Virginia at the time of his death.
We recognize that our opinion on the application of Virginia law and Region IV’s opinion
on the issue of whether the marriages were valid under North Carolina law are both
necessary to adjudicate these claims. Therefore, in the interest of completeness,
we have included or summarized the relevant portions of Region IV’s opinion below
to consolidate the advice into one opinion.
BACKGROUND REGARDING WHETHER THE P~ MARRIAGE WAS VALID UNDER NORTH CAROLINA LAW
Claimant G~ and Fred V. P~, the number holder (NH), were ceremonially married on July
16, 1960, in North Carolina. The marriage license and certificate indicate Claimant
G~ was 18 at the time of her marriage, but Claimant G~ admits she and NH ran away
to get married and she was only 17 at the time. Claimant G~ reported that children
were born during the marriage. She obtained a judgment granting her a divorce from
NH on January 11, 1978, in North Carolina. In granting the divorce, the judge found
that Claimant G~ and NH were lawfully married. NH died on September 11, 2009, and
was a resident of Virginia at the time of his death.
Claimant G~ married Wayne E. G~ on December 23, 1979, in Virginia. That marriage ended
with Mr. G~’s death on May 10, 1990. Claimant G~ 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.
DISCUSSION OF WHETHER THE P~ MARRIAGE WAS VALID UNDER NORTH CAROLINA LAW
Under the Social Security Act (Act) Section 202(e)(1), 42 U.S.C. § 402(e)(1), 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 also 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), 42 U.S.C. § 416(d)(2); see also 20 C.F.R. § 404.336(a). Claimant G~’s alleged marriage to NH lasted for more than
ten years immediately prior to the day of the divorce judgment. Therefore, if Claimant
G~ and NH were validly married, Claimant G~ 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 G~ and NH participated in a marriage
ceremony and were divorced in North Carolina. NH resided in Virginia at the time of
his death. The 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).
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,  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).  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  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 G~ 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 G~ and NH ratified their marriage by residing together after Claimant
G~ 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 G~ and NH were “lawfully married.” Therefore,
Claimant G~ and NH were lawfully married under North Carolina law.
BACKGROUND REGARDING WHETHER THE S~ MARRIAGE WAS VALID UNDER NORTH CAROLINA LAW
Shelvey J. S~ (Claimant S~) and Clyde J. S~, the number holder (NH), participated
in a marriage ceremony on April 3, 1964, in North Carolina. According to Social Security
Administration records, Claimant S~ and NH had children during the marriage. NH died
on February 26, 1983, while a resident of Virginia. The marriage license and certificate
indicate Claimant S~’s date of birth as October 13, 1945, making her 18 years of age
at the time of the marriage ceremony. When Claimant S~ applied for widow’s insurance
benefits on December 1, 2009, she reported her date of birth as October 13, 1948.
Thus, Claimant S~ was actually 15 years of age at the time of her marriage ceremony.
Claimant S~ alleges she had parental consent for the marriage, but presented no proof
of this claim. She claimed she contacted the courthouse to obtain a copy of the consent
her mother allegedly signed, but was told the records were destroyed after five years.
Claimant S~ also stated she did not know her date of birth was incorrect on the marriage
DISCUSSION OF WHETHER THE S~ MARRIAGE WAS VALID UNDER NORTH CAROLINA LAW 
Under the Act, a claimant may be eligible for widow’s insurance benefits if she is
the “widow” of an individual who died a fully-insured individual. See Act § 202(e)(1); 20 C.F.R. § 404.335(a) (2009). “Widow” means the “surviving wife”
of an individual. See Act § 216(c)(1), 42 U.S.C. § 416(c)(1); 20 C.F.R. §§ 404.335(a), 404.344 (2009). An
individual may be the “surviving wife” of an individual if she is the mother of the
deceased individual’s son or daughter or was married to the deceased individual for
a period of not less than nine months immediately prior to the day he died. See Act § 216(c)(1); 20 C.F.R. § 404.335(a)(1), (a)(3). Claimant S~’s alleged marriage
to NH lasted more than nine months immediately prior to the day on which he died,
and the evidence indicates she is the mother of his children. Therefore, if Claimant
S~ and NH were validly married, she would be his “widow” for the purposes of widow’s
insurance benefits. See Act §§ 202(e)(1), 216(c)(1); 20 C.F.R. § 404.335(a).
Under North Carolina law, underage marriages are at most voidable and are considered
valid until declared otherwise by a court of competent jurisdiction. See N.C. Gen. Stat. § 51-3; Ivery, 129 S.E.2d at 462. According to the information provided, children were born during
the marriage, and Claimant S~ and NH were residing together at the time of NH’s death.
Thus, pursuant to N.C. Gen. Stat. § 51-3, the marriage between Claimant S~ and NH
cannot be declared void. In addition, the parties ratified the marriage by living
together after Claimant S~ reached the age of consent. See Ivery, 129 S.E.2d at 462; Sawyer, 146 S.E. at 865. Therefore, Claimant S~ and NH were lawfully married under North Carolina
DISCUSSION OF THE APPLICATION OF VIRGINIA LAW The Act at Section 216(h)(1)(A)(i), 42 U.S.C. § 216(h)(1)(A)(i), indicates that a
determination of whether an applicant is the widow of a fully insured individual is
determined by the law of the state in which the insured individual was domiciled at
the time of death. Similarly, the regulations also indicate, “To decide your relationship
as the insured’s widow…, we look to the laws of the State where the insured had a
permanent home when he… died.” 20 C.F.R. § 404.345. Accordingly, the advice memoranda
you received from Region IV advised you to contact our office regarding whether the
North Carolina underage marriages were valid under Virginia law to permit the widows
to qualify as spouses under the Act.
You requested our advice regarding whether the policy of determining marital status
stated in POMS GN 00305.005(B)(1) was applicable in these cases. According to GN 00305.005(B)(1), addressing which State’s law applies in determining marital status,
The validity of a marriage is ordinarily determined by the law of the place where
it occurred; if valid in that jurisdiction, it is usually held valid in other places.
However, even though the marriage was valid where it was contracted, it may be void
in the State of the worker’s domicile if it violates the law or public policy of the
latter state. This view is most commonly held when the Uniform Marriage Evasion Act
(GN 00305.155) is applicable or the marriage is polygamous. 
Our research reveals that Virginia follows the general rule that a marriage valid
where celebrated is valid everywhere unless the marriage is contrary to the law or
public policy of the forum state. Toler v. Oakwood Smokeless Coal Corporation, 173 Va. 425, 429-31 (Va. 1939); Kelderhaus v. Kelderhaus, 21 Va. App. 721, 725 (1996), Kleinfield v. Veruki, 7 Va. App. 183, 186 (1988). Similarly, the policy enunciated in GN 00305.005(B)(1) recognizes the principle of comity, as well as the exceptions for marriages
that violate law or public policy. Accordingly, for these underage marriages that
Region IV found valid under North Carolina law to be recognized as valid in Virginia,
we must determine whether they violate Virginia law or public policy.
Historically, the Virginia statutes pertaining to the marriage of minors were contained
in sections 5078 and 5090 of the Virginia Code. Section 5078 provided that a person
under 21 years of age, who had not previously been married, was permitted to marry
with the consent of his or her father, mother, or guardian, or otherwise a judge of
a specified court. Va. Code § 5078 (Michie 1942); see generally Needham v. Needham, 183 Va. 681, 685 (1945) (discussing the history of the Virginia statutes pertaining
to marriage of minors). Section 5090 provided in pertinent part, “the minimum age
at which minors may marry with the consent of a parent or guardian shall be eighteen
for the male and sixteen for the female.” Va. Code § 5090 (Michie 1942); Needham, 183 Va. at 685. Significantly, Section 5090 had previously fixed the age of consent
of the male at 14 and that of the female at 12 and stated, “whenever either of the
parties was under the age of consent, if they be separated during such non-age, and
not cohabit afterwards, the marriage shall be deemed void, without any decree of divorce,
or other legal process.” Va. Code § 5090 (Michie 1919); Needham, 183 Va. at 685. However, section 5090 was amended in 1932 to raise the age of consent
to 18 for males and 16 for females and to remove the provision declaring that the
marriage of a person under the age of consent, followed by a separation, “shall be
deemed void.” Va. Code § 5090 (Michie 1932); Needham, 183 Va. at 685.
DISCUSSION OF WHETHER THE P~ MARRIAGE WAS VALID UNDER VIRGINIA LAW
Our research reveals no intervening statutory changes between 1945 and 1960,  when Claimant G~ married NH P~, that would suggest that the Needham case is not controlling in G~’s case.  The parties in Needham, an 18 ½-year-old boy and a 17 ½-year-old girl, who were residents of Virginia and
could not obtain parental consent, went to Maryland to marry, where the age of consent
is 18 for a male and 16 for a female, but parental consent is required for males under
21 and for females between the ages of 16 and 18. Needham, 183 Va. at 683-84. The parties lied about their ages to enable them to marry without
written consent in Maryland, but that marriage was nevertheless valid and binding
upon them in Maryland. Id. at 684. Immediately following their marriage, the parties returned to Virginia where
they cohabited together as husband and wife. Id. at 683. The husband brought suit to annul the marriage. Id. The trial court dismissed the case. Id. The Supreme Court of Appeals of Virginia affirmed the trial court stating, “Marriages
of minors over the age of consent for marriage are not ‘supposed to be void’ merely
because of the lack of parental consent. The provision for parental consent is directory
and preventative, rather than prohibitive of the consummation of the marriage contract.”
Id. at 688. Accordingly, the court held that the out-of-state marriage of minors over
the age of consent for marriage was permissible. Id.
The court reasoned,
Neither in section 5090, as it now stands, nor in any other statute, is there any
provision declaring that the marriages of persons under the age of consent are absolutely
voidable. We have statutes, however, expressly prohibiting marriages between certain
persons, and declaring marriages between certain persons ‘absolutely void.’ Code,
sections 5084, 5085, 5086, 5087, 5088, 5088a, 5088b, and 5089 (Michie’s Code of 1942).
None of these statutes include persons otherwise qualified to marry, who have left
the state to marry because parental consent could not be obtained.
Id. at 685. The court further explained,
Our statute, Code, section 5078, places a restriction upon the issue of a marriage
license to persons under twenty-one years of age for the purpose of preventing such
marriages; but the statute has stopped short of declaring such marriages void or voidable.
It is also highly significant that there has been stricken from the statute (section
5090) which fixes the age of consent for marriage, the former provision declaring
that the marriage of a person under the age of consent, followed by separation, ‘shall
be deemed void.’
Id. at 686. The facts in Needham are similar to the facts of the P~ marriage. Claimant G~ was over the age of consent
(16) when she married in North Carolina. Based upon the holding of Needham, we believe that a Virginia court would not find that Claimant G~’s underage marriage
in North Carolina violated the law or public policy of Virginia. Therefore, because
Claimant G~’s out-of-state underage marriage did not violate Virginia law or public
policy, North Carolina law can be applied in her case.
DISCUSSION OF WHETHER THE S~ MARRIAGE WAS VALID UNDER VIRGINIA LAW
In the S~ matter, the claim is complicated by the fact that Claimant S~ was 15 at
the time she married and, therefore, had not yet reached the age of consent (16).
Accordingly, although Needham is instructive for this claim, it is not directly on point.
However, the Supreme Court of Appeals of Virginia addressed the issue of an out-of-state
marriage under the age of consent in another context that lends guidance in the present
In Kirby v. Gilliam, 182 Va. 111 (Va. 1943), a mother brought an action to annul the marriage of her 14-year-old
daughter without her daughter’s consent. Id. at 113. The plaintiff-mother alleged that her daughter’s husband took her minor-daughter
to the state of North Carolina in 1942 to marry to circumvent the laws of Virginia,
even though they immediately returned to Virginia and lived as husband and wife. Id. at 114. The plaintiff-mother also alleged that her 14-year-old daughter was incapable
of contracting a valid marriage and that the alleged marriage was contrary to the
laws of Virginia and against its public policy. Id. The plaintiff-mother appealed the dismissal of her claim by the trial court. Id.
In determining whether the plaintiff-mother could bring a suit on behalf of the minor-daughter
without her consent, the appellate court found that, in the absence of a statute giving
the plaintiff-mother the authority to bring such an action, courts appear to be unanimous
in the view that a parent cannot institute in his or her own name an action for the
annulment of the marriage of their child under the age of consent, but over the common-law
age of seven. Id. at 119. The court explained,
These decisions are based upon the principle that a marriage by one under the age
fixed by statute, but over the common-law age of seven, is voidable and not void,
in the absence of a statutory provision expressly declaring that it shall be absolutely
void; that ordinarily, so long as the parties to the marriage so desire, it is to
the best interest of society that the marriage relationship be sustained; and that
by such marriage and prior to its annulment, the infant consort is emancipated from
his or her parents’ custody or control.
Id. footnotes omitted). The court further concluded that the trial court correctly dismissed
the plaintiff-mother’s claim. Id. The court reasoned that the plaintiff-mother could not maintain the action because
the marriage is presumed to be valid and has emancipated the minor-daughter from the
custody of her parents until it has been annulled in a proper proceeding. Id. at 121. However, the court dismissed the plaintiff-mother’s claim without prejudice,
noting that she could re-file her claim in the name of her daughter as next friend
without her daughter’s consent, and it was an issue for the court to determine whether,
under all the circumstances, it would be in the best interest of the minor that the
marriage be annulled. Id.
While the court did not squarely address the issue of whether an out-of-state marriage
of a minor under the age of consent violated the law or public policy of Virginia,
we believe Kirby is persuasive authority for the principle that such a marriage does not violate the
law or public policy. Otherwise, the court would have been reluctant to find the marriage
merely voidable, rather than void. Additionally, the court could, and probably would,
have intervened at that time, rather than dismissing the plaintiff-mother’s suit,
and could have cited her arguments regarding the violations of law and public policy
with approval. Notably, unlike in Kirby, the S~ marriage was unchallenged. Therefore, we believe that a Virginia court would
find that the S~ marriage does not violate the law or public policy of Virginia.
We believe that a Virginia court would apply the law of North Carolina in accordance
with the policy in POMS section GN 00305.005(B)(1) to find these underage marriages were valid because at the time these marriages
were entered into they did not violate Virginia law or public policy.
Eric P. K~,
Regional Chief Counsel,
Tara A. C~
Assistant Regional Counsel