PR 05405.011 Florida
A. PR 03-001 Request for Legal Opinion Number Holder
DATE: October 1, 2002
Florida statutes and case law do not contain a concept such as “continuation of marriage.” A divrce decree brings about a termination and final disposition of the marriage relationship. Where a separate maintenance decree is obtained instead of a divorce, there is a continuation of the marriage relationship. However, in this case the facts indicate that the parties obtained a divorce, not a separate maintenance decree. Therefore, the first marriage cannot be considered to have “continued.” The couple was married for two separate periods (1/75 - 3/81, and 3/82 - 4/89), neither period equaling at least 10 years for purposes of entitlement as a surviving divorced spouse on the NH's record.
You have requested our opinion as to whether the concept of “continuation of marriage” is recognized under Florida law and would apply to a situation where the parties were married to one another two different times for an aggregate amount of more than 10 years. Florida does not appear to recognize “continuation of marriage.”
B~ applied for surviving divorced spouse's benefits on the record of D~ (NH). She married the NH in Florida in January 1975 and they were divorced in Florida in March 1981. They remarried in Florida in March 1984 and divorced in Arkansas in April 1989. Neither was married to anyone else during the period between their marriages. B~ indicated that at their second marriage ceremony, the officiating judge advised them that they could get a “continuation of marriage” judgment that would void their divorce and make a second marriage unnecessary. The couple chose not to pursue that avenue and proceeded with their ceremonial (and legal) marriage. B~ was denied benefits as a divorced spouse on NH's record because she was not continuously married to NH for at least 10 years. 42 U.S.C. §216(d)(2); 20 C.F.R. §404.331 (2002).
Research of Florida statutes and case law did not reveal did not reveal a concept such as “continuation of marriage.” A divorce decree brings about a termination and final disposition of the marriage relationship. See Bredin v. Bredin, 89 So.2d 353, 355 (Fla. Sup. Ct. 1956). Where a separate maintenance decree is obtained instead of a divorce, there is a continuation of the marriage relationship. Id. However, the facts related to us indicate that the parties obtained a divorce, not a separate maintenance decree. Accordingly, B~ would not qualify for benefits on the NH's account.
Very truly yours,
Mary A. S~
Regional Chief Counsel
Laurie G. R~
Assistant Regional Counsel
B. PR 85-022 (Florida) Validity of Marriage - Adjudication of Incompetency - Restoration of Civil Rights
SSN ~ — REGION IV
DATE: September 12, 1985
MARRIAGE — CEREMONIAL MARRIAGE - STATUTORY REQUIREMENTS — FLORIDA
Under Florida law marriage between idiots or insane persons are void ab initio. Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932) and Savage v. Olson, 151 Fla. 241, 9 So.2d 363 (1942). See, opinion, Re M~, Harrv L. - ~- RAIV [Carr] - to RAV - 10/19/55. (W~ (DNH) - SSN ~ - RAIV - [J~] - to ARC, Progs., Atl., 09/12/85)
Under Florida law an order adjudicating a person to be incompetent shall constitute conclusive proof of incompetency until the competency of the person has been restored. Fla. .Stat .§Ann. SS744-344.
(W~ (DNH) - SSN ~ - RAIV - [J~] - to ARC, Progs., Atl., 09/12/85)
In your memorandum your office wanted to know whether the claimant, J~, was validly married to the deceased number holder, W~. You specifically wanted to know whether the claimant had sufficient mental capacity to enter into a marriage contract with the decedent on April XX, 19XX, while a court order adjudging her to be incompetent was in existence.
The record evidence indicates that the claimant, J~ (a/k/a J~), on July XX, 19XX, was adjudicated to be incompetent by County Judge W~ of Hillsborough County, Florida. The order indicates that the claimant suffered from depersonalization, religious delusions, was unable to employ adequate judgment and was withdrawn.
The record indicates that on April XX, 19XX, a certificate of marriage was issued to the claimant and W~.
The record further indicates that on September XX, 19XX, Judge W~ of Hillsborough County of the County Circuit Court, Florida, restored the claimant's personal liberties and decreed her to be of sound mind.
The record indicates that on September XX, 19XX, W~ died. The file also indicates that Judge W~ , in an unsigned letter addressed to the Bureau of Vital Statistics, State Board of Health, stated that the marriage between J~ and W~ was void. He further stated that at the time a marriage license was issued to the claimant she was incompetent and had been deprived of her civil rights. He further stated that the claimant at her restoration hearing stated that she had no intention of validating her marriage and, therefore, there was no need for divorce. The record evidence indicates that the Department of Health and Rehabilitation Services, Division of Mental Health, in a letter dated October 17, 1974, acknowledged the receipt of the restoration order dated September 24, 1974.
For reasons hereinafter stated, it is our opinion that the claimant lacked the sufficient mental capacity to enter into a valid marriage on April XX, 19XX, and, therefore, the claimant is not the widow of the decedent.
As noted in your transmission, our office in opinion Re M~, Harry n. - ~- RAIV [Carr] - to RAV - 10/19/55, has previously held that marriages between idiots or insane persons are void ab initio. Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932) and v. Olson, 151 Fla. 241, 9 So.2d 363 (1942), were cited as the basis for this holding. Our research indicates that this rule of law is still in force in the State of Florida.
Additionally, it must be noted that Florida, by statute, holds that an order adjudicating a person to be incompetent shall constitute conclusive proof of incompetency until the competency of the person has been restored. Fla.Stat.Ann. SS744.344. In view of the fact that the claimant was under a court order adjudicating her to be incompetent at the time the marriage certificate was issued, the claimant was unable to contract a valid marriage. Based on the foregoing, you would be warranted in finding that the claimant and the decedent were not husband and wife based on the April XX, 19XX, marriage certificate.
C. PR 85-013 Validity of Ceremonial Marriage Performed by Rabbi Where No Marriage License Was Obtained - Sol Y~ - DWE
DATE: July 15, 1985
Under Florida law, all marriages are invalid which are not entered into in good faith and in substantial compliance with the laws pertaining to marriage.
(Y~, Sol (DWE) - ~ - RAIV [A~] - to ARC, Progs., Atl., 06/17/85)
"DE FACTO MARRIAGE — WHAT CONSTITUES MARRIAGE CEREMONY — FLORIDA
Where an individual entered into a marriage without obtaining a marriage license we advised that further development be undertaken to determine if there was substantial compliance with Chapter 741 of the Florida Statutes Annotated and whether the marriage was entered into in good faith.
(Y~ Sol (DWE) - ~- RAIV [A~] - to ARC, Progs., Atl., 06/17/85)
Your office has raised a question concerning the validity of the purported marriage between Rose Y~ (S~) and Barnet S~. Rose Y~ (S~) was receiving remarried widow's benefits on the record of Sol Y~ (She had married Irving V~ on June 14, 1974.) When Mr. V~ died on November 30, 1977, Ms. Y~ began receiving widow's benefits.
A direct deposit authorization form signed by Ms. Y~ as Rose Y~ S~ led to an investigation of her marital status. Records revealed that she had married Barnet S~ on June 14, 1978 with the ceremony being performed by a rabbi. Ms. Y~ S~ has stated that her marriage to Mr. S~ is not a valid marriage in that no marriage license was obtained. She further stated that the ceremony was performed for the benefit of her children because she and Mr. S~ were living together.
Section 741.08 of the Florida Statutes Annotated provides that:
Before any of the persons named in §741.07 shall solemnize any marriage, he shall require of the parties a marriage license issued according to the requirements of §741.01, and within ten days after solemnizing the marriage he shall make a certificate thereof on the license, and shall transmit the same to the office of the county court judge or clerk of the circuit court from which it issued.
In addition, Section 741.211 of Florida Statutes Annotated provide that:
No common-law marriage entered into after January 1, 1968, shall be valid except that nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter.
The Florida courts were presented with a somewhat similar fact situation in a 1974 case, Litzky v. Ullman, 296 So.2d 638 (1974). In Litzky, the marriage ceremony was performed by an Orthodox Jewish rabbi, Louis B~, in accordance with the rules and traditions of the Orthodox Jewish faith. The couple was issued a "Ksuba", a Hebrew marriage certificate, by Rabbi. However, no marriage license was obtained in accordance with the provisions of Ch. 741, Florida Statutes Annotated.
When Isaac L~ died intestate, Rose Z~ (L~) filed her notice of election to take dower. She resided with the decedent but apparently used the names and Z~
Based on this evidence, the court entered a finding that Florida Statutes Annotated S741.211 invalidated common-law marriages entered into after January 1, 1968 and that the wording of the statute does not indicate any legislative intention to distinguish a religious or ceremonial marriage from a common-law marriage. The court further rendered its interpretation of Section 741.211 as invalidating all marriages which are not entered into by the parties in good faith and in substantial compliance with the laws pertaining to marriage.
In your case, there is also a marriage by a rabbi and a failure to obtain a license. According to Ms. Y~ (S~), no record of the marriage was made by state officials. She also presented copies of her electric bills which show she used the name "Y~". She further stated that she files her income tax returns as a single individual. However, she has a joint account with Barnet S~ and her name is printed on the checks as Rose Y~ S~, the name she used when she requested a direct deposit of her checks.
Generally, compliance with license statutes is not essential to the validity of a marriage in the absence a statutory provision expressly making it essential. See, B~, James H~ - - [Chi - AFA] - R~ to AO, -11/30/44; S~ , William M~ - [N.O. AFA] - H~ to N.O. AO, 06/22/45. Florida is apparently applying a two-prong test to determine the validity of the marriage. The marriage must be entered into in good faith and in substantial compliance with the laws pertaining to marriage. We are of the opinion that further development of the facts surrounding the marriage should be undertaken to determine the level of compliance with the statutes pertaining to marriage in Florida (Chapter 741 of the Florida Statutes Annotated) and whether the marriage was entered into in good faith.
In addition to evaluating the evidence in the record, you should further explore such factors as:
(1) whether Ms. Y~ (S~) got a blood test or otherwise complied with any of the statutory prerequisites for marriage, (2) whether Ms. Y~ (S~) represents herself to her friends and neighbors as the "wife" of Barnet S~, and (3) whether Ms. Y~ (S~ has represented in other circumstances that the marriage was not "real" .
D. PR 80-009 Validity of a Marriage in the State of Florida - Wage Earner
DATE: December 11, 1980
MARRIAGE - Statutory Requirements and Effect of Noncompliance - License — FLORIDA
The validity of a ceremonial marriage is determined by the law of the state where it takes place. Here, the Florida statute providing for the recording of marriage licenses is found to be directory and not mandatory. The fact that the claimant's marriage license was altered and thus could not be recorded, does not render her marriage invalid.
You have requested our opinion as to whether the alteration of a marriage license, which results in the license not being recorded, renders a ceremonial marriage invalid in the state of Florida, and whether, if the marriage is invalid under Florida state law, it is also invalid under Georgia state law, where the claimant now resides.
The pertinent facts contained in the file are as follows. B~ was ceremonially married to the wage earner in 1971. She and his minor children were awarded benefits effective June 1975. The wage earner died on May XX, 19XX, while domiciled in Arizona. Upon his death, benefits payable to the claimant and children were converted to survivors' benefits. In August 1979, a report was received from the claimant that she had married in that month. Consequently, plaintiff's entitlement to benefits was terminated due to her remarriage to J~ The marriage was performed in Florida. In November 1979, a letter was submitted from the Orange County courthouse in Orlando, Florida, in regard to the marriage of J~, and B~. Due to an alteration of the groom's middle name on the marriage license, the license could not be recorded. Neither the claimant nor J~ applied for an amended application. The claimant subsequently separated from J~ and was living in Georgia.
Title 20 C.F.R. S 404.725(a) pertains to the evidence required by the Social Security Administration in order to establish a valid ceremonial marriage. The subsection provides, "A valid 'ceremonial marriage' is one that follows procedures set by law in the state or foreign country where it takes place. These procedures cover who may perform the marriage ceremony, what licenses or witnesses are needed, and similar rules." Inasmuch as B~ married J~., in Orlando, Florida, the requirements of Florida state law are determinative of the validity of their marriage. Although B~ now resides in Georgia, Georgia state law has no bearing on the validity of a marriage performed in Florida; the legality of a marriage is determined by the law of the state wherein consummated. 52 Am. Jur. 2d Marriage S 80; Re Mortenson's Estate, 83 Ariz. 87, 316 P.2d 1106; Harper v. Atlanta and; W.P.R. Co., 33 Ga. App. 259, 125 S.E. 885 (1924); Goldman v. Dithrich, 131 Fla. 408, 179 So. 715 (1938).
Florida is one of many states following the rule that statutes which direct that a license must be issued and procured, that only certain persons shall perform the ceremony, that a certain number of witnesses shall be present, that a certificate of the marriage shall be signed, returned, and recorded, and that persons violating the conditions shall be guilty of a criminal offense, are addressed to persons in authority to secure publicity and to establish a permanent record of the marriage contract, and that the failure to technically observe one or more of such formalities does not invalidate the' marriage unless the statute expressly states that a particular requirement is a prerequisite to the validity of the marriage or unless so many rights are ignored that there is, in effect, no ceremonial marriage at all. 21A Florida Statutes Annotated SS~ 741; 52 Am, Jut. 2d, Marriage ~ 34. In this case the only procedure which was not observed in the marriage of J~. and B~ was that their marriage license was altered and, hence, not recorded. There is no Florida statute indicating that the recording of a marriage license is essential to the validity of a marriage. The Florida Supreme Court held in Varas v. Hendrix, 62 Fla. 446, 57 So. 345 (1912), that statutory enactments regulating the manner of licensing and solemnizing marriages and the keeping of a record thereof are generally regarded as directory and a failure to comply with such statutory provisions does not render invalid or void the marriage relation entered between competent parties.
Thus, although the Florida statutes relating to the solemnization of marriages provide for the recording of the marriage license (~ 741.09), the recording of the marriage is not essential to its validity since the provision is directory, as discussed above, and is addressed to the official making the proper return and recording, rather than to the parties to the marriage. In the absence of a statutory provision making it essential, compliance with licensing statutes is not essential to the validity of a marriage, although non-compliance may subject the parties at fault to criminal penalties or civil liability (~ 741.0510).
It is our opinion that Florida law is determinative of the validity of a marriage performed in that state. Further, failure to comply with the directory Florida statute regarding the recording of a marriage license does not render said marriage invalid or void. The marriage of J~ and B~ was valid.