TN 8 (09-13)
PR 05405.006 California
A. PR 13-115 Validity Of Alleged Marital Relationship Under California law Deceased Wage Earner: Robert Claimant: Rosie
DATE: August 28, 2013
To effectuate a valid marriage in California, the parties must consent to the marriage, the parties must obtain a valid marriage certificate, the marriage must be solemnized, the person solemnizing the marriage and at least one witness must sign the marriage certificate, and the marriage certificate must be filed with the county clerk. The purported marriage is void because (1) the deceased wage earner did not appear before the county clerk to apply for the marriage certificate and he was unable to meet an exception to this requirement and (2) the marriage was not solemnized because the wage earner, who was comatose, was unable knowingly to have participated in the wedding ceremony. The marriage was void ab initio (i.e., the deceased wage earner and the claimant were never validly married), and the claimant is not entitled to widow's benefits.
You asked whether a valid marital relationship existed between Robert, the deceased wage earner (DWE) and Rosie (Claimant) for purposes of determining Claimant’s entitlement to widow’s insurance benefits under the Social Security Act (the Act) where DWE was comatose at the time of the alleged marriage.
Under California law, the purported marriage between DWE and Claimant was void ab initio—from its inception—and never constituted a valid marriage. California law treats Claimant and DWE as if they were never married and, because the Act looks to state law to determine the validity of the marriage, Claimant is not entitled to receive widow’s benefits.
SUMMARY OF EVIDENCE
We obtained these facts from a March 7, 2012 investigative report completed by the State of California and the exhibits thereto, as well as documents and information received from the field office in Whittier, California. The State of California investigated Claimant for grand theft, embezzlement, failure to disclose a material fact, and welfare fraud in connection with her collection of Medi-Cal funds.
In October 2009, DWE had a brain hemorrhage. On November 29, 2009, physicians admitted him to a hospital in a comatose state. On February 26, 2010, physicians transferred him to a convalescent hospital, where he remained in a comatose state until his death on October 27, 2012.
Claimant alleges that she married DWE on April 30, 2010 in Los Angeles County, California. Medical records show that DWE was in a comatose state in the days immediately preceding and following the purported wedding: on April 25, 2010, DWE’s physician described him as “unresponsive”; on April 29, 2010, DWE’s physician indicated that he was in a “vegetative state”; on May 9, 2010, DWE’s physician noted that he was “non-verbal” and on feeding tubes; and on May 10, 2010, DWE’s physician described him as “comatose.”
On or about April 29, 2010, Claimant applied for a license and certificate of marriage from the County Clerk for the County of Los Angeles. The application stated that Claimant and DWE lived together in Pico Rivera, California, and listed the wedding date as April 30, 2010.
DWE’s signature does not appear on the application. Instead, Claimant completed an Affidavit of Inability to Appear stating that DWE was hospitalized and could not physically appear before the county clerk to apply for a marriage certificate. Claimant, Sandy —the minister who attempted to solemnize the purported wedding—and Margaret, a witness to the purported wedding ceremony, signed the affidavit. DWE’s signature does not appear on the affidavit.
The county clerk issued a marriage certificate indicating that DWE and Claimant married on April 30, 2010. Claimant, the minister, Margaret, and the county clerk signed the marriage certificate. DWE did not sign the marriage certificate. DWE’s typewritten name appears on the signature line of the marriage certificate in lieu of his written signature.
The county clerk accepted the marriage certificate for registration on May 12, 2010 and filed it on July 14, 2010.
Claimant’s application for widow’s benefits and lump sum death benefits are currently pending before the agency. The Whittier field office advised us that the Office of the Inspector General asked for assistance in investigating potential representative payee abuse. The Whittier field office spoke with Claimant concerning the funds she received as DWE’s representative payee. We understand that Claimant told the Whittier field office that she used the funds to pay for household expenses. Payment of household expenses may not constitute a misuse of funds where the representative payee and the deceased wage earner are validly married. For this reason, the Whittier office suspended its inquiry into the representative payee issue pending a determination regarding the validity of the marriage.
The Social Security Act (the Act) requires that a claimant seeking widow’s benefits prove the existence of a valid marriage to the deceased wage earner. See Act §§ 202 & 216(h)(1)(A), 42 U.S.C. §§ 402 & 416(h)(1)(A); see also 20 C.F.R. §§ 404.335, 404.344, 404.345 (2012). 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 is valid. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.435. Here, DWE lived in California at the time of his death. Accordingly, California law governs the validity of his marriage to Claimant.
The Marriage Is Voidable Under California Law
There are five statutory requirements for effectuating a valid marriage in California: the parties must consent to the marriage, the parties must obtain a valid marriage certificate, the marriage must be solemnized, and the person solemnizing the marriage and at least one witness must sign the marriage certificate, and the marriage certificate must be filed with the county clerk. Cal. Fam. Code §§ 300, 306, 420.
California courts expressly hold that the failure to comply with statutory licensing, certification, or solemnization requirements render a marriage void. In re Estate of D~, 97 Cal. App. 4th 92, 102 (Cal. App. 2002) (holding that California Family Code requirements are mandatory); see also Burnham v. Cal. Pub. Employees Ret. Sys., 208 Cal. App. 4th 1576, 1584–85 (Cal. App. 2012) (failure to solemnize wedding rendered it void); In re Estate of T~, No. A123071, 2009 WL 3470401, * 6 (Cal. App. Oct. 9, 2009) (citing D~, 97 Cal. App. 4th at 92; Lockyer v. San. Fran., 33 Cal. 4th 1055, 1116 (Cal. 2004)) (“Our courts have determined that failure to comply with the requirements of sections 300 and 306 renders a marriage void.”).
A “void” marriage is “legally nonexistent from the beginning.” Program Operations Manual System (POMS) GN 00305.125(A); see also L~, 33 Cal. 4th at 1114. Thus, “parties to a void marriage are considered never to have been husband and wife,” with or without a judicial decree. POMS GN 00305.125(A). As a result, a claimant whose marriage to a deceased wage earner was void is not entitled to receive benefits under the Act. See Act §§ 202 & 216(h)(1)(A), 42 U.S.C. §§ 402 & 416(h)(1)(A); see also 20 C.F.R. §§ 404.335, 404.344, 404.345. Here, the purported marriage between DWE and Claimant was void ab initio—from its inception—both because the marriage certificate was invalid and because the marriage was not solemnized.
The purported marriage between DWE and Claimant is void because DWE never personally appeared before the county clerk to apply for the marriage certificate. California Family Code section 359(a) requires that both applicants seeking a marriage certificate personally appear before the county clerk. Section 426 provides an exception to the personal appearance requirement of section 359(a) when one of the applicants alleges that he is physically unable to appear. Section 426 has three requirements: (1) the person solemnizing the marriage must present an affidavit to the county clerk explaining why the absent applicant cannot personally appear; (2) the person solemnizing the marriage and both applicants must sign the affidavit under penalty of perjury; and (3) a notary must notarize the absent applicant’s signature.
Claimant appears to have presented an affidavit to the county clerk pursuant to section 426 alleging that DWE was physically unable to appear due to hospitalization. However, contrary to the requirements of section 426(b) and (c), DWE’s signature is not on the affidavit. Accordingly, DWE neither signed the affidavit subject to the penalty of perjury nor before a notary, in violation of the California Family Code. See Cal. Fam. Code §§ 354, 359, 426. For this reason alone, the marriage certificate between DWE and Claimant was invalid, and the purported marriage between DWE and Claimant was void from its inception. See, e.g., In re Estate of D~, 97 Cal. App. 4th at 102 (California Family Code licensing and certification requirements are mandatory and strictly enforced).
The purported marriage between DWE and Claimant is also void because it was not solemnized. See Cal. Cal. Fam. Code §§ 300, 420(a). Section 420(a) provides, in pertinent part, “the parties shall declare, in the physical presence of the person solemnizing the marriage . . . that they take each other as husband and wife.” As the B~ court explained, solemnization is required to validate a marriage because it is the act of saying the words, “I do” that finalizes the marriage contract. B~, 208 Cal. App. 4th at 1584–85 (“Simply put . . . it is the point in the process at which the parties can no longer change their minds about their decision to form a union.”).
Here, DWE could not have accepted the marriage vows before the minister because DWE was comatose at the time of the purported wedding ceremony. Indeed, the medical records show that in the days prior to and following the purported wedding ceremony, DWE was “unresponsive,” “non-verbal,” “comatose,” and in a “vegetative state.” These records establish that the DWE was physically and mentally incapable of accepting wedding vows on April 30, 2010. California courts look to this sort of evidence to determine mental capacity at the time of solemnization. See, e.g., Vitale v. Vitale, 147 Cal. App. 2d 665, 667 (Cal. App. 1957) (citing In re Estate of P~, 195 Cal. 699, 703 (Cal. 1925)) (“While it is . . . mental condition on [the day of the wedding ceremony] that is in issue, that condition may be determined from his condition prior and subsequent to the day.”). Because DWE could not have knowingly participated in the April 30, 2010 wedding ceremony, the solemnization requirement was not met. As a result, the purported marriage was void ab initio under California law, and the agency should treat Claimant and DWE as if they were never married. See, e.g., In re Estate of D~, 97 Cal. App. 4th at 102; POMS GN 00305.125(A).
The Marriage Is Also Voidable Under California Law
Additional defects also render the marriage voidable under California law. Unlike a void marriage—which is “legally non-existent” from its inception, regardless of whether or not a court deems it so—a voidable marriage is valid until a court enters a nullifying decree. See, e.g., In re Marriage of S~, 200 Cal. App. 4th 800, 806–07 (Ct. App. 2011). Agency policy directs payments of benefits unless or until a court deems a marriage voidable. POMS GN 00305.130.
California courts would not find that Claimant and DWE were validly married at the time DWE died. Under California Family Code section 2210, a court may deem a marriage “voidable” where a party to the marriage: (1) lacked capacity to consent to the marriage; (2) had a previous spouse who was absent and/or not known to be alive; (3) was of unsound mind; (4) obtained the other party’s consent by fraud or force; and/or (4) was physically incapable of entering into the marriage.
California courts would likely find the marriage between Claimant and DWE voidable because DWE lacked the capacity to consent to the marriage, was of unsound mind, and was physically incapable of entering into the marriage. See, e.g., People v. Ramirez, Case No. B227672, 2012 WL 280563, *3 (Cal. App. Jan. 31, 2012). For example, the R~ court found that the fact that the alleged wife was not “‘at all’” lucid and suffered from dementia established that she lacked the capacity to consent to the alleged marriage and deemed the marriage voidable. R~, 2012 WL 280563, *3; see also Vitale v. Vitale, 147 Cal. App. 2d 665, 667 (1957) (voiding marriage because party’s mental illness rendered it “impossible for him to have appreciated the solemnity of the marriage vows, as his judgment would have been too impaired for him to understand the nature, obligations, and responsibilities of marriage.”). Because the marriage is both void and invalid for these additional reasons, the agency need not rely on the marriage for entitlement purposes.
Because the evidence shows that DWE was in a comatose state both before and after the alleged wedding ceremony on April 30, 2010, the marriage was void ab initio. In particular, DWE could not and did not personally appear before the county clerk to apply for a marriage license and certificate, sign the affidavit of inability to appear before a notary, or accept the wedding vows to effectuate the solemnization of the purported marriage. As a result of these deficiencies, DWE and Claimant were never validly married and Claimant is not entitled to widow’s benefits under the Act. Moreover, the defects in the marriage stemming from DWE’s physical and mental incapacitation provide further support for the conclusion that the marriage is invalid. As mentioned above, the validity of the marriage may have implications for the pending representative payee misuse inquiry.
B. PR 87-013 Voluntary Cohabitation After "Confidential Marriage" in California
DATE: August 14, 1987
MARRIAGE — CALIFORNIA
Voluntary cohabitation of a party after attaining the age of consent and subsequent to a marriage ceremony (without a marriage license) with another would negate any defects in the marriage ceremony. (Marshall, — RAIX (S~), to RC, 08/14/87.)
The claimant, Pauline , and the deceased wage earner, Marshall, were married without a license in a religious ceremony performed in San Bernardino, California on July 17, 1976. A record of the marriage was filed with the San Bernardino County Clerk on July 26, 1976, pursuant to California Civil Code section 4213. The record, which was verified by Marshall and Pauline, lists her age as eighteen (18) and her birth date as July 17, 1958. Pauline has since acknowledged that she actually was born on July and was, therefore, only seventeen (17) years old when the marriage took place.
It also has been alleged that the clergyman who conducted the ceremony was unlicensed.
Sherry was born to the couple on July. Marshall and Pauline lived together until some time in 1978. They were never divorced. After separating from Pauline, Marshall married Lydia on December 16, 1978. A child was born of this marriage on June. Marshall died a California domiciliary on February 12, 1986. You ask whether Pauline is Marshall's legal widow under California state law.
At the time of the July 17, 1976 ceremony, Code section 4213 provided as follows:
When unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergyman. A certificate of such 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.
Where, as in this case, a party to such a "confidential marriage" was a minor at the time of the ceremony, the marriage may be nullified at the time of the ceremony, the marriage may be nullified at that party's request "unless, after attaining the age of consent [i.e., 18] such party for any time freely cohabited with the other as husband and wife." California Civil Code section 4425(a); see GC opinion re Monica , March 19, 1982. The record here indicates that Marshall and Pauline cohabited for some months after she actually attained age 18 in July 1977. In the opinion we further concluded that failure to satisfy other requirements of the confidential marriage law (e.g., lack of pre-marital cohabitation) is negated, by voluntary cohabitation subsequent to the marriage ceremony It follows that any original defects in the marriage were rectified by their cohabitation as husband and wife after Pauline turned 18 years of age. Since this marriage was not legally terminated prior to Marshall death, Pauline is his widow under California law and, consequently, for purposes of Social Security benefits as well.
The claims file is herewith returned.
C. PR 86-008 Ceremonial Marriage — California, Harry , (Claim of Robin )
DATE: March 3, 1986
MARRIAGE — CEREMONIAL MARRIAGE — STATUTORY REQUIREMENTS — CALIFORNIA
Except under special circumstances not alleged in this case, a marriage license must be procured to render a marriage valid in California. (Harry, ~— RAIX (S~), 03/03/86.)
On February 14, 1981 the wage earner, Harry, participated in a marriage ceremony with Robin . Documentation includes a copy of a "Marriage Certificate" signed by the presiding clergyman. The claims file also contains a copy of a form captioned "Declaration of Marriage pursuant to 4215 of the Civil Code." This document bears the signatures of Harry, Robin, a notary, and three witnesses. A date stamp indicates that the declaration was recorded in San Bernadino County, California on February 24, 1981.
Following Harry's death on July 11, 1985, Robin applied for the lump sum death payment on his account. You have asked how to establish the validity of a marriage, such as this, allegedly created in accordance with California Civil Code section 4215.
Section 4215 provides that regular statutory solemnization procedures do not apply "to members of any particular religious denomination having, as such, any peculiar mode of entering the marriage relation." See Civil Code ~4200, 4205-4207.
In lieu of solemnization, such persons may execute a declaration of marriage, as provided in section 4210 of the Civil Code. The declaration must be "acknowledged" and filed with the county recorder within thirty (30) days of the marriage. Civil Code 4215; see Civil Code §4211. These steps were taken in this case.
Although a properly executed declaration may be substituted for formal solemnization, section 4215 does not excuse compliance with the distinct statutory licensing requirement. Except under special circumstances, not alleged in this case, a license must be procured to render a marriage valid in California. E.g. Argonaut Insurance Company v. Industrial Accident Commission, 204 Cal. App.2d 802, 23 Cal. Rptr. 1 (1962). "[A] license may not be dispensed with if a marriage falls within the scope of section 4215 ... . ." 58 Ops. Atty. Gen. 914, 9]§7 (1975) (copy attached). Accordingly, in addition to a duly recorded declaration of marriage, a section 4215 marriage must be documented by a marriage license. If Robin and Harry did not secure a license, their "marriage" would be invalid.
The claims file is herewith enclosed.
The provisions of this article, so far as they relate to the solemnizing of marriages, are not applicable to members of any particular religious denomination having,. as such, any peculiar mode of entering the marriage ~ relation; but such marriages must be declared as provided in Section 4210, and be acknowledged and recorded, as provided in Section 4211. Where a marriage is declared as provided in Section 4210 the husband must file said ~ declaration with the county recorder within '~ 30 days after such marriage, and upon receiving the same the count recorder must record the same; and if the husband fails to make such n declaration and file the same for record, as herein provided, he is liable to the same penalties as any person authorized to solemnize marriages, who fails to make the return of solemnization as provided by law.
D. PR 86-006 Validity of Marriage — California, Robert
DATE: February 13, 1986
In order to establish a "confidential marriage," as provided by section 4213 of the California Civil Code in effect in August 1970, a couple first must have established a pattern of conduct and general reputation as husband and wife. Noncompliance with certain procedural requirements by others than a party to a marriage does not invalidate it.
On or after January 1, 1982, California Civil Code Section 4213 requires both prior civil authorization and subsequent civil recordation of all "confidential marriages." ( Robert; RA IX; ; February 10, 1986)
In general, the three basic requirements for a valid marriage under California law are (1) mutual consent, (2) issuance of a license, and (3) solemnization. Marriage under section 4213 of the California Civil Code are an exception to these requirements. ( Robert; RA IX: : February 10, 1986
The wage earner, Robert , and the claimant, Frances , met in June or July of 1970. They began living together early in August 1970. On August 26, 1970, without having obtained a marriage license, they exchanged vows in a ceremony presided over by an acquaintance who claimed to be a self-ordained minister of the Unified Church of Christ. The ceremony was witnessed by Robert's brother and sister. You have been unable to trace the "minister" or identify his church. A marriage certificate was not issued, and there is no civil record of the marriage. Under these circumstances, you have inquired whether the ceremony sufficed to create a valid "confidential marriage" in accordance with California Civil Code section 4213.
At the time of the August 26, 1970 ceremony, section 4213 provided as follows:
When unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergyman. A certificate of such 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.
Neither Robert nor Frances was married or a minor during their two-week period of "pre-marital" cohabitation; however, it is unclear whether they were "living together as man and wife" within the meaning of the statute. Construing the predecessor to section 4213, former Civil Code section 79, the California Supreme Court stated that "the creation of the relation of husband and wife contemplates a course of conduct involving the assumption of those marital rights, duties, and obligations which are usually manifested by married people." People v. McIntire, 213 Cal 50, 1 P 2d 443 444 (1931) Cohabitation as husband and wife is further defined in M~ as
"holding forth to the world by the manner of daily life, by conduct, demeanor and habit, that the man and woman who live together have agreed to take each other in marriage and to stand in the mutual relation of husband and wife; and when credit is given to those among whom they live, by their relatives, neighbors and acquaintances to these representations and their continued conduct, then habit and repute arise and attend upon cohabitation. The parties are holden and reputed to be husband and wife."
Quoting Campbell v. Campbell, L.R. 1Sc. Div. App. 200, 211.
It would obviously be difficult to establish such a pattern of conduct and accepted reputation in a period of two weeks. Certainly, the statements presently in the record do not suggest that Robert and Frances held themselves out to be a married couple or were taken as such by those who knew them, during the pertinent two-week period immediately preceding their wedding ceremony. Therefore, we recommend that you contact Frances once more to inquire specifically whether she and Robert generally represented themselves as "husband and wife" to their relatives, co-workers, friends, and neighbors before their "marriage." If she responds affirmatively, you should proceed to contact witnesses who knew the couple at the time to determine whether Robert and Frances were reputed to be married prior to the ceremony. A confidential marriage cannot be found in the absence of credible evidence of both holding out and general reputation.
In the event that the aforementioned evidence is forth-coming, 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. 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." See GC opinion re Monica , March 19, 1982 ("unnecessary to look behind the title of the alleged 'minister'"). Lacking a marriage certificate, the occurrence of the requisite solemnization may be shown by the credible testimony of witnesses. See Estate of C~ 130 Cal. App. 2d 557, 279 P.2d 607 (1955) (church record of solemnization performed more than 20 years earlier could not be located; confidential marriage found on the basis of testimony, despite inability of witnesses to recall the name of the minister or identify the church). Accordingly, the August 26, 1970 ceremony attested to by Frances and her "sister-in-law," Grace, was sufficient to bring about a confidential marriage if the prerequisites of holding out and reputation were previously met.
You have also asked us to advise you of the general "requirements with which the parties to a marriage must comply in order to create a valid marriage in California." The pertinent statute itself is the best guide:
Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone will not constitute marriage; it must be followed by the issuance of a license and solemnization as authorized by this code, except as provided by Section 4213.
California Civil Code SS4100. The three basic requirements, therefore, are (1) mutual consent, (2) issuance of a license, and (3) solemnization. Marriages under section 4213 are an exception to these requirements.. We encourage you to contact this office if you are uncertain whether these requirements have been satisfied within the context of a particular case.
The claims file is enclosed herewith.
E. PR 84-002 Validity of Marriage — California, Wendell
DATE: January 10, 1984
"DE FACTO" MARRIAGE — IMPEDIMENT ARISING FROM PRIOR MARRIAGE OR ITS DISSOLUTION — CALIFORNIA
A subsequent marriage in California contracted by any person during the life of a former spouse with any person other than that spouse is illegal and void from the beginning unless certain exceptions are met. Where two parties separated and the wife over twenty years later entered into a second marriage, the only possible exception applicable to the issue of the validity of the second marriage is found not to be met. The exception requiring the former spouse to be absent and not known to the person to be alive for the space of five successive years is not satisfied where the parties to the first marriage mutually agreed to separate or where the person seeking to establish the validity of the second marriage is found to be the deserter. A deserter may establish "absence" only after a good faith effort to locate the spouse. A newspaper advertisement published in a place where the spouse has never been and has no contacts is not a "good faith effort." In addition, mere lack of knowledge as to whether or not the former spouse is alive has been held not to be sufficient to establish the exception as a good faith belief in the death of the absent spouse is an "essential element." ( Wendell, — RAIX (S~), to RC, 01/10/84.)
Estelle and Chelsie were married in 1931 or 1932 in Alabama. The couple separated within a year or two of their marriage and lost all contact with one another. Estelle moved to Carbondale, Illinois. Chelsie remained in Alabama for awhile; then he lived in North and South Carolina before returning to Alabama in 1946. He "remarried" in 1946.
Sometime in the 1940s Estelle became acquainted with Wendell . In 1952 Estelle moved to California. In 1956 or 1957 Estelle and Wendell decided to get married. Estelle consulted an attorney regarding her marriage to Chelsie. The attorney reportedly advised her that the marriage could be dissolved if she made an attempt to notify Chelsie of her intention to seek a divorce by placing an advertisement in a newspaper. Estelle placed the advertisement in a Carbondale, Illinois, paper, despite the fact that Chelsie had never lived or visited her there. Chelsie did not respond to the newspaper advertisement. On February 3, 1957 Estelle and Wendell underwent a marriage ceremony in California. The Newberns were "divorced" on March 20, 1975. Estelle remained in California; Wendell took up permanent residence in Oklahoma.
You first asked for our assistance in determining whether the marriage between Estelle and Wendell was valid under the provisions of California Civil Code section 4401. We are to assume that Estelle "deserted" Chelsie.
Section 4401 is a reenactment of the substance of former section 61 of the California Civil Code. Because the reenactment did not become operative until January 1, 1970, approximately thirteen years after Estelle's attempted divorce and remarriage, it is necessary to refer instead to the governing law at the time of those events as set forth in section 61. This statute provided that a subsequent marriage contracted by any person during the life of a former spouse, with any person other than that spouse, is illegal and void from the beginning unless:
"1. The former marriage has been annulled or dissolved, and, in the case of dissolution by divorce obtained in this state, at least one year has elapsed from the date of service of a copy of summons and complaint upon, or appearance by, the defendant spouse in the former proceeding for such divorce.
"2. Unless such former husband or wife is absent, and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or is generally reputed or believed by such person to be dead at the time such subsequent marriage was contracted. In either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal."
Subdivision 1 clearly has no application here since the marriage between Estelle and Chelsie was never annulled or dissolved. The second clause of subdivision 2 is also inapplicable on its face, because Chelsie was neither generally reputed to be deceased nor did Estelle believe that he was dead.
All that remains to be analyzed is the initial clause of subdivision 2 relating to the "absent" former spouse. The California Supreme Court has held that an individual who has deserted his or her spouse cannot claim that the deserted spouse is "absent" within the meaning of subdivision 2 unless the deserter has made a good faith effort to locate the deserted spouse. In Re R~' Estate, 133 Cal. 524, 65 P. 1034 (1901); see our opinions re Frank, D-1498, May 8, 1953 and Dixon D-560, September 13, 1951. In this case Estelle's perfunctory advertisement in the Carbondale newspaper plainly does not satisfy the good faith requirement. Chelsie apparently had never resided in Carbondale, nor was he known to have friends or close relatives living in that city. Thus, there was no reasonable basis for anticipating that the ad would actually serve notice upon Chelsie. Nor is there evidence that Estelle entertained a subjective belief that the ad would come to Chelsie's attention. It appears that she placed the ad with the understanding that it was a mere formality. She had neither the desire nor the expectation that Chelsie would actually read her announcement. Therefore, assuming, per your request, that Estelle deserted Chelsie, the exception provided by the first clause of subdivision 2 does not apply in the absence of any evidence of a good faith attempt by Estelle either to contact Chelsie or to ascertain his whereabouts.
Even if it were assumed that Estelle did not desert Chelsie, however, the marriage between Estelle and Wendell likely could not be saved by subdivision 2 as it has been interpreted by California courts. Where the parties to the first marriage have separated by mutual consent, there is authority in California for the position that neither spouse is "absent" within the meaning of that exception. See our opinion re Dixon cited above, citing 16 Cal. Jur. 923 and concurring opinion in Jackson v. Jackson, 94 Cal. 446, 29 P. 957 (1892). Nor would a finding that Chelsie, rather than Estelle, was the deserting spouse change the outcome of this case. Despite the language used in the statute, the California Supreme Court has held that a good faith belief in the death of the absent spouse is an "essential element" under all of subdivision 2, regardless of which spouse was responsible for the separation. Wilcox v. Wil1cox, 171 Cal. 770, 155 P. 95 (1916). Mere ignorance as to whether or not the absent spouse is living is insufficient. Neureither v. Workmen's Compensation Appeals Board, 15 Cal. App. 3d 429, 93 Cal. Rptr. 162 (1972). Therefore, since Estelle did not believe that Chelsie was dead at the time of her marriage to Wendell, subdivision 2 does not apply.
You have also requested our response to several other problems presented by this case: whether or not a section 61 (4401) marriage would be recognized in Oklahoma; whether or not Oklahoma would recognize a California putative marriage; and whether or not Oklahoma has equivalent putative spouse provisions. Because each of these questions requires interpretation of the laws of a state outside our region, we have forwarded these inquiries to the appropriate Regional Attorney's office (Region VI, Dallas, Texas). They will be responding to you directly.
You also raised a question of Alabama law. We have determined that this issue ("abeyance") is moot in view of our opinion that section 61 of the California Civil Code does not apply in this case.
F. PR 82-004 Validity of Marriage - California, Monica,
DATE: March 19, 1982
Where the statute specifically provides that as a result of certain conditions renders a marriage void from its inception, failure to meet requirements not specifically referred to in the statutes as having the effect of resolving a marriage void is at most cause for rendering the marriage voidable. As a result the termination of the marriage does not take effect until such time as there is a formal judicial determination nullifying the marriage. ( Monica - ~ - RA IX (F~) to RC, SSA - 3/19/82)
In February. 1981, shortly after reaching. her eighteenth birthday, the claimant participated in a private marriage ceremony performed under section 4213 of the California Civil Code. The individual who performed the ceremony is a "minister" of the Universal Life Church. After receiving the notice of termination of her child's insurance benefits by virtue of this marriage, the claimant contended that the marriage was void, because she and her husband had lied about living together as husband and wife. The claimant and her husband were remarried by a municipal court commissioner on July 6, 1981. You believed that in California, absent incest or bigamy, only a court had the authority to declare a marriage to be invalid. Thus, you concluded that, regardless of the credentials of the "minister" or the truthfulness of the claimant's averments, the February 1981 marriage would be considered valid unless and until a court declared otherwise (in a decree of annulment). You inquired whether your understanding of California law was correct.
Initially, we will address the question of whether the fact that the individual who performed the marriage ceremony was a questionable "minister" of the Universal Life Church would affect the validity of the claimant's marriage. Included among the persons authorized to solemnize a marriage (i.e., perform the marriage ceremony) in California is a "minister . of any religious denomination." Ca. Civil Code 4205. Section 4200 of the Civil Code provides that a [m] arriage must be . solemnized, but non-compliance with [this section's] provisions by others than a party to a marriage does not invalidate it." We believe that this provision concerning non-compliance renders it unnecessary to look behind the title of the alleged "minister." Even if he were not in fact a minister, as a non-party to the marriage his "noncompliance" with section 4205 (i.e., his not truly being a minister as envisioned by that section) would not affect the validity of the marriage itself.
Sections 4400-4458 of the California Civil Code cover judicial determinations of void or voidable marriages. Marriages which are absolutely void from their inception are incestuous marriages and, with certain exceptions, bigamous marriages. Ca. Civil Code §§ 4400, 4401. In contrast, a voidable marriage is considered valid for all civil purposes, between the parties and against the world, until declared a nullity by a court of law. Estate of G~, 160 Cal. 21, 116 P. 60 (1911); G.C. opinion re: James, D-5819, September 23, 1960. In other words, a void marriage may be attacked collaterally in any type of proceeding; a voidable marriage may not be so attacked until it has been judicially nullified. The statutory grounds on which a (voidable) marriage may be "adjudged a nullity" are set out in Civil Code section 4425. That section does not include any provision for nullifying a marriage because the parties lied in order to meet a statutory qualification for marrying. In Price v. Price, 24 Cal.App.2d 462, 75 P.2d 655 (1938), decided under former section 82 (the predecessor to section 4425), the Court held that the enumerated grounds for annulments were exclusive; the Court declined to nullify a marriage where the parties had not fully complied with the (other jurisdiction's) statutory requirements.
We were unable to find any California civil case which ruled on the effect of failure to meet one or more of the conditions for qualification to marry without a license under section 4213 (or its predecessor, former Civil Code section 79). In Encinas v. Lowthian Freight Lines, 69 Cal.App.2d 156, 158 P.2d 575 (1945), a marriage had been contracted under former section 79. The question presented was whether the female had been a minor at the time; if so, she would not have been entitled to be married without a license under section 79. Because the Court found that she was not a minor at the time of the marriage, it never reached the question of whether failure to meet the statutory qualifications would negate the marriage (and, if so, whether it would be absolutely void or merely voidable.) (See, e.g., our opinion' re Philip , D-15178, November 15, 1972. ) People v. McIntire, 213 Cal. 50, 1 P.2d 443 (1931), was a criminal case involving an individual charged with murder after a hit-and-run automobile accident. He had married his "wife" under former section 79, in order to prevent her from testifying against him under the applicable spousal privilege section of the Evidence Code. The Court found that the man and woman had not been living together as husband and wife, as required by section 79, but had merely engaged in occasional illicit intercourse. It therefore declared their void, such that the evidentiary spousal privilege could not be asserted. Whether this approach is viable outside the unique circumstances of this criminal case is uncertain.
We believe that if a California court were to receive our case in the posture here presented, it would find the February 1981 marriage valid. We believe that the court would follow the approach taken in Argonaut Ins. Co. v. Industrial Accident Commission, 204 Cal.App.2d 805, 23 Cal.Rptr. 1 (1962). In Argonaut, the marriage license issued was incorrect in that assumed names were deliberately substituted by the parties for their true names. The Court pointed out that the Legislature could expressly declare void any marriage which was contracted contrary to the requirements of the law. In fact, the Legislature had done so with incestuous and bigamous marriages. One party argued that the law (former section 68, now section 4200, of the Civil Code) inferentially holds that the furnishing of false information by one or both parties to the county clerk (who issues the license) constitutes non-compliance with the legal requirements by a party to the marriage, with the necessary result that the license and the marriage are rendered void. In response, the Court stated:
"In view of the policy of the law to promote and protect the marriage relationship, it cannot be held that the Legislature meant to declare by reference an additional ground upon which a marriage must be found void."
In the present case, the claimant and her husband now allege that they previously misrepresented that they had been living together as husband and wife. The pertinent statutes are silent as to the effect of such misrepresentation. Had the Legislature intended that any marriage without a license be either void or voidable if one of the conditions necessary for qualification for marriage without a license was not met, however, it could have codified that intent. It did not. Moreover, with limited exceptions, the grounds which could result in a voidable marriage being judicially nullified are negated by subsequent cohabitation. Civil Code ~4425. Thus, even if the Legislature had made their marriage voidable, if the claimant and her husband cohabited after their. February 1981 marriage, they would have lost the right to have their marriage nullified. This fact constitutes an additional ground on which a court could conclude that the marriage was valid.
Therefore, we conclude that the claimant's February 1981 marriage is valid and that her child's insurance benefits were properly terminated. Given the questionable practices now coming to light with respect to section 4213 marriages (see, e.g., the Grand Jury findings and recommendations included in the claims file), we may well see amendments to, or litigation concerning, that statute in the near future. We recommend, therefore, that you contact this office for any recent updates. concerning this issue, before you decide whether to accord validity to section 4213 marriages in future cases.
Section 4213 has been repeatedly amended since its enactment in 1969. See GC opinion re Mormon and California Civil Code Section 4213, March 13, 1986. A copy of the current version of the law, incorporating amendments through 1986, is attached. JS/dgw
As noted in Monica, the reasoning and result there were inconsistent with the prior GC opinion re Philip, November 15, 1972. The holding in Monica depended largely on our reading of Civil Code section 4425 and the decision in Argonaut Insurance Co. v. Industrial Accident Commission, 204 Cal. App. 2d 805, 23 Cal. Rptr. 1 (1962), neither of which was analyzed in T~. Consequently, to the extent that T~ is at variance with Monica or the views expressed in the present opinion, is herewith disapproved.
The validity of the marriage would not be undermined even if, as alleged, the officiating clergyman was not authorized to solemnize marriages. Id.
As noted in the Monica opinion, even if the marriage were voidable, "it would nonetheless be valid unless and until the parties obtained a court decree adjudging it a nullity."
We note that the file contains copies of opinions which have not been "sanitized" in accordance with the Privacy Act. 5 U.S.C. § 552a. If these documents are retained in the file, all personal identifiers should be deleted to avoid violating the Privacy Act, in the event that anyone other than SSA employees (on a "need to know" basis) is given access to the file.
The complete text of section 4215 reads as follows:
Section 4210 states as follows:
If no record of the solemnization of a marriage heretofore contracted, be known to exists, the parties may join in a written declaration of such marriage, substantially showing all of the following:
The names, ages, and residences of the parties.
(2) The fact of marriage.
That no record of such marriage is known to exist.
Such declaration shall be subscribed by the parties and attested by at least three witnesses.
Civil Code section 4213 provides that "[w]hen an unmarried man and an unmarried woman, not minors, have been living together as husband and wife they may without a license, be married by any person authorized to solemnize a marriage ....
" This section provides the only exception to the licensing requirement. 58 Ops. Atty. Gen. 914 (1975).
As indicated in POMS GN R00305.080, section 4213 has been amended several times over the past 15 years. Most notably, since January 1, 1982 the statute has required both prior civil authorization and subsequent civil recordation of confidential marriages. Any case of an alleged confidential marriage occurring on or after January 1, 1982 where these two conditions have not been satisfied should be submitted for review by this office.
Subdivision 1 and 2 were reworded in section 4401 to read as follows:
(1) The former marriage has been dissolved or declared a nullity prior to the date of the subsequent marriage.
(2) The former husband or wife is absent, and not known to such person to be living for the space of five successive years immediately preceding the subsequent marriage, or is generally reputed or believed by such person to be dead at the time such subsequent marriage was contracted, in either of which cases the subsequent marriage is valid until its nullity is adjudged pursuant to subdivision (b) of Section 4425.
Although the appellate courts (e.g., in Neureither) have expressed dissatisfaction with this expansive application of the belief requirement, the interpretation by the Supreme Court in Wilcox is still applicable in California. .The language in Wilcox could be viewed as mere dicta, and thus not binding, but no appellate court has yet taken that approach.
In light of our conclusion that a section 61 marriage was not contracted by the parties, an answer to this question is no longer required.
In People v. Baker, 88 Cal.App.3d 115, 151, Cal.Rptr. 362 (1978), the appellant claimed he was a minister of the "Universal Life Church" and was thus empowered to perform marriages (in this case, his own). In discussing whether the appellant was married, the court pointed to other requirements for a valid marriage which had not been fulfilled, but it did not indicate any problem with-the alleged solemnization. Thus, the court apparently did not feel that appellant's being a "minister" of the Universal Life Church would effect the validity of the marriage there under discussion. See also dissenting opinion in In Re S~, 76 Cal.App.3d 1010, 143 Cal.Rptr. 350 (1978).
The reasoning of this opinion differs from that utilized in T~, and may be viewed as inconsistent with the result reached therein. As noted in the last paragraph of this opinion, we would suggest that you submit for our consideration any future cases raising issues of the validity of marriages under section 4213 of the California Civil Code.
A criminal case is truly "adversary": the prosecution has every incentive to seek out and present to the court facts which would contradict the defendant's assertions. Thus, if the parties lied in order to qualify for a section 4213 marriage, the prosecution could so prove to the court. Alternatively, if they lied later about not having met the requirements, the prosecution could prove that they had in fact told the truth initially. In civil cases, such an adversary situation is not necessarily present. If the "husband" and the "wife" Were the plaintiff and the defendant, they could agree to lie to the court, and no one would be in a position to set the record straight. The possibility of such collusion in civil cases sufficiently distinguishes them from the criminal context, that the M~ court's action might well be limited to criminal cases.
This fact situation demonstrates the collusion possibility referred to in footnote 3, above. They obviously have lied—but we have no way to know whether the false statement was made at the time of the marriage or when the claimant sought reinstatement of her child's benefits. In this situation, there is no one with any incentive to come forth and offer evidence to resolve the issue.
Even if we had concluded that the marriage was voidable, it would nonetheless be valid unless and until the parties obtained a court decree adjudging it a nullity, which they have not done.