You have requested our opinion as to whether a marriage was valid under Georgia law
where a couple was married by a minister but had not obtained a marriage license.
It is our opinion that the marriage is probably valid.
Bernard I. B~, the number holder (NH), was diagnosed with cancer in February 2003
and did not obtain a marriage license before his ceremonial marriage to Debra B~ (Claimant)
on April 6, 2003. The ceremony took place at a church in Perry, Georgia, and was officiated
by a pastor, NH's brother, with thirty people in attendance. The couple did not obtained
a marriage license prior to the ceremony because they could not afford it.
The pastor performed the ceremony despite the lack of a license because of the NH's
terminal illness. Although the couple planned to go before a probate judge to obtain
a marriage license after the ceremony; NH died on May 1, 2003, before taking any action.
Claimant has filed an application for mother's benefits. Her child, Jessica B~, was
born on February 2, 2002, and NH is listed on the birth certificate as her father.
The essentials for a valid marriage in Georgia are (1) parties able to contract; (2)
an actual contract; (3) consummation according to law. Ga. Code Ann. § 19-3-1. The
Georgia legislature prescribed various formalities for the execution of a marriage
contract, such as the application for the issuance of marriage licenses and had provided
a penalty against any judge, justice of the peace, or minister who joins in marriage
any without a license. See Lefkoff v. Sicro, 189 Ga. 554, 560, 6 S.E.2d 687, 693 (1939).
Georgia courts, however, have uniformly held that compliance with these provisions
was not essential to the validity of a marriage contract. See id. (citations omitted). In this regard, Georgia has recognized marriages celebrated between
two people fully capable of contracting, although solemnized with no license at all.
See 1965-66 Op. Att'y Gen. No. 66-240 (copy attached). Moreover, "[a]ll the presumptions
necessary to make a marriage valid attach on proof of a formal ceremony of marriage
and cohabitation by the parties under the belief that they were lawfully married;
and the burden is on those who attack the validity of the marriage to show its invalidity
by clear, distinct, positive, and satisfactory proof." Fanning v. State, 169 S.E. 60, 62, 46 Ga.App. 716 (1933). Thus, it appears that the Claimant's marriage
to NH would be considered valid under Georgia law.
Section 202(g) of the Act says that the surviving spouse of a deceased individual
can be entitled to a mother's/father's insurance benefit.
"Surviving spouse" is defined in § 216(a)(2) to include a widow, as defined in § 216(c).
Section 216(c) explains that "widow" means the surviving wife of an individual, but
only if she satisfies on of several alternative conditions. Two of these conditions
are "(1) She is the mother of his son or daughter" and "(2) She was married to him
for a period of not less than nine months immediately prior to the day in which he
died." This duration-of-marriage requirement applies only if the surviving wife does
not meet one of the other alternative conditions in § 216(c), such as the mother-of-the-child
Nevertheless, the regulations require that, in order to be entitled to mother's/father's
benefits, the person must be the widow/widower of the insured individual, and "meet
the conditions described in 404.335(a)(1)," which refers to the 9-month duration-of-marriage
requirement for a widow(er). 20 C.F.R. § 404.339 (2004). According to the Office of
Eligibility and Enumeration Policy (OEEP) within the Office of Income Security Programs
(OISP), the cross-reference included in § 404.339 is incomplete, because it does not
include the alternatives to the 9-month duration requirement, which are contained
in sections 404.335(a)(2) through (a)(4). Section 404.335(a)(3), which is relevant
to this case, provides that a claimant need not meet the 9-month duration requirement
where the claimant and the insured were the natural parents of a child. The regulations,
therefore, do not encompass all of the methods by which a claimant may be eligible
under the Act.
On August 12, 2003, the Agency published a Notice of Proposed Rulemaking (NPRM) that
would correct this error. Entitlement and Termination Requirements for Stepchildren,
68 Fed. Reg. 47,877-47,881 (proposed Aug. 12, 2003) (to be codified at 20 C.F.R.§
404.339). Similarly, OEEP/OISP is planning a revision to the POMS which would provide
accurate cross-references from sections RS 00208.001C to sections RS 00207.001C.2 and 3. Although the NPRM cannot be relied upon as a statement of policy, it is
indicative of the Agency's recognition of the alternative means of entitlement to
mothers' insurance benefits. Moreover, in cases where there is an apparent conflict
between the Act and regulations, the Act would take priority over the regulations.
See Lewis v. Barnhart, 285 F.3d 1329, 1333 (11th Cir. 2002) (citing Chevron U.S.A., Inc. v. N.R.D.C., 467 U.S. 837, 842-45 (1984)) ("If the will of Congress is clear from the statute
itself, our inquiry ends - 'the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.'"). In this case § 216(c)(3) of the
Act controls over the defective 20 C.F.R. § 404.339. Because Claimant and the NH were
parents of children receiving benefits, the claimant does not have to meet the 9-month
duration requirement. Therefore, based on the facts that you presented, she is eligible
for mother's insurance benefits under section 202(g) of the Act.
Very truly yours,
Mary A. S~
Regional Chief Counsel
Joseph P. P~, III
Assistant Regional Counsel