You have asked whether Anne R~ ("Anne") is the widow of the deceased wage earner Henry
R~. Anne and Henry celebrated a ceremonial marriage in Illinois in 1952, and they
lived together in Illinois as husband and wife until 1968. Thereafter, Henry remarried,
but he never secured a divorce from Anne. However, on the date that Henry and Anne
celebrated their marriage, Anne was still married to Eddie W~. Although she secured
a divorce from Eddie, the divorce was not effective until six days after her purported
marriage to Henry. For the following reasons, we conclude that Anne and Henry never
had a valid marriage. We also address the issue whether Anne qualifies as a putative
spouse and conclude that you may find that any good faith belief that she was validly
married to Henry ceased at some time prior to his death.
On April 10, 1952, "Miss Anne D~" was married to Henry D. R~ by a clergyman. Although
the marriage license was issued by the State of Mississippi on April 5, 1952, Anne
says that the ceremony took place in Chicago. She claims that Henry secured the license
while visiting his parents and that she was not present. The marriage was registered
On April 7, 1952, an attorney acting on Anne's behalf appeared in Cook County Superior
Court pursuant to a petition for divorce filed by "Annie B. W~," nee D~ , against
Eddie J. W~. The decree of divorce was entered on April 16, 1952, six days after Anne
went through the marriage ceremony with Henry.1_/ A certified copy of the decree was
issued on May 13, 1953. Anne claims that "the judge that handled [her] divorce from
Eddie W~ " told her that her marriage to Henry was valid and that there was no need
to remarry. She later said that she had not spoken to the judge, but that the lawyer
who handled the divorce from Eddie told her that even if the divorce did not go through
by April 10 her marriage to Henry would be legal. In the second statement, Anne also
denied being aware of the date of the divorce until she "unfolded" the papers at the
Social Security office when she applied for widow's benefits.
Anne and Henry lived together as husband and wife until they separated in 1968. Henry's
military discharge papers, issued in 1953, describe him as "married." Search of the
Cook County court records does not disclose any record of a divorce between Anne and
Henry, and Anne denies that she and Henry ever were divorced.
Henry died in Chicago on October 16, 1989. The death certificate lists Zuella P~ as
his surviving spouse. Zuella is receiving widow's benefits on Henry's account. According
to her application, she underwent a ceremonial marriage to Henry in Chicago on February
5, 1972. The file does not contain any documentation of Zuella's marriage to Henry.
1. Was Anne and Henry's ceremonial marriage in Chicago valid even though the marriage
license was issued by the State of Mississippi?
2. Even though when Anne and Henry's marriage was celebrated Anne had a living husband
from whom she was not divorced, did Anne's marriage to Henry become valid after her
prior marriage was terminated by divorce?
3. Is Anne Henry's widow by virtue of having been a putative spouse?
By itself, the fact that Anne and Henry's marriage license was issued by the State
of Mississippi would not affect the validity of their ceremonial marriage in Chicago.
In 1953, the Illinois Supreme Court held that the parties' failure to obtain a marriage
license would not invalidate a marriage that was blessed by a clergyman authorized
to perform marriages in Illinois. Haderaski v.
Haderaski, 112 N.E.2d 714 (Ill. 1953). In Haderaski the parties underwent two marriage ceremonies. When the first was performed, the
"[wife] had a husband living from whom she was not divorced." Id. at 715. Sometime after a divorce was obtained, the parties were married again, by
a priest, but without a marriage license. Id. It follows that if a marriage ceremony performed by a clergyman with no license is
valid in Illinois then a marriage ceremony performed with an out-of-state license
also would be valid.
This conclusion is of little comfort to Anne, however, because she was married to
Eddie at the time her purported marriage to Henry was celebrated. The Haderaski case strongly suggests that in the absence of a celebration of their marriage subsequent
to the date of Anne's divorce from Eddie, Anne and Henry never had a valid marriage. See id.
As part of the Illinois Marriage and Dissolution of Marriage Act of 1977, Ill. Rev.
Stat. Ch. 40, 101, et seq. ("1977 Act"), Illinois legislated two possible ways out
of the foregoing dilemma for Anne. First, although Illinois continued not to recognize
common law marriages entered into after June 30, 1905, the new law provided that:
Parties to a marriage prohibited under subsection (a) of this Section [, including
"a marriage entered into prior to the dissolution of an earlier marriage of one of
the parties,"] who cohabit after removal of the impediment are lawfully married as
of the date of the removal of the impediment.
Ill. Rev. Stat. Ch. 40, ~ 212(b) (quoting, in brackets, ~ 212(a)(1)); see Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979) (discussing effect of 1977 Act on Illinois law in general
and cohabitation without ceremonial marriage in particular). Unfortunately for Anne,
however, this provision did not take effect until October 1, 1977.
In an earlier opinion, B~ , Morris ~, RA V (Dorn), to Director, Insurance Programs
Branch (July 19, 1982) (copy attached), we specifically addressed the question of
whether ~ 212(b), above, applied if the parties to the invalid marriage did not cohabit
on or after October 1, 1977. In reliance on, among other things, the Commentary following
I 212 (quoted in Memorandum at p. 4), we reasoned:
In the absence of Illinois case law to the contrary, we conclude that paragraph 212(b)
does not validate marriages contracted prior to October 1, 1977, where the impediment
to the marriage was removed prior to that date and the parties no longer cohabited
after that date.
Memorandum of July 19, 1982, at 4. Since our updated research continues to disclose
no Illinois case law to the contrary, we reaffirm the foregoing conclusion.
Nevertheless, Anne has a chance of qualifying as Henry's putative spouse under another
section of the 1977 Act, Ill. Rev. Stat. ~ 305. In footnote 3 of our Memorandum of
July 19, 1982, we cite other opinions in which we applied ~ 305 to cases in which
the wage earner and the claimant separated prior to October 1, 1977. We explained
unlike paragraph 212, paragraph 305 does not validate a prohibited marriage, but only
confers a status of putative spouse upon an individual so long as the individual maintains
a good faith belief in the validity of the marriage.
Memorandum of July 19, 1982, at 6 n.3. Since a putative spouse's right to be treated
like a legal spouse terminates as soon as he or she learns that the marriage is not
valid, you must decide whether Anne maintained, until Henry's death, a good faith
belief that she was his legal wife. See Ill. Rev. Stat. Ch. 40, ~ 305 (a putative spouse remains a putative spouse only "until
knowledge of the fact that he is not legally married terminates his status").
The notes in the file suggest that you harbor serious doubt as to Anne's professed
good faith belief that she is Henry's widow, and we concur. On March 5, 1991, Anne
signed a statement in which she claimed that her attorney advised her that her marriage
to Henry would be legal regardless of whether the divorce from Eddie came through
in time. The statement is questionable on its face since any attorney practicing matrimonial
law may be presumed to have known that in 1952 having a living husband from whom she
was not divorced was an insuperable impediment to a woman's valid remarriage. The
statement is surrounded by additional indicia of untruthfulness.
Anne's original story, presented in a statement signed on December 18, 1990, was that
she asked the Judge whether she needed to remarry Henry after her divorce from Eddie
became final and that the judge said that she did not. This story, too, is incredible
on its face since it would require a divorce court judge, whom Anne claimed in another
statement never to have appeared before, 2_/ to give incorrect legal advice to a party
represented by counsel.
Even allowing for the possibility that when Anne said "judge" she meant "lawyer,"
her stories are inconsistent. In her March 1991 statement Anne categorically disavows
any knowledge whatsoever during Henry's lifetime that the divorce from Eddie postdated
the marriage to Henry. She claims not to have discovered the effective date of the
divorce until she applied for Social Security benefits, explaining that the "divorce
papers remained folded" (for more than 35 years). But, unless Anne knew that her divorce
from Eddie postdated her marriage to Henry she would have had no reason to ask the
judge, her lawyer, or anyone else whether she had to remarry Henry after her divorce
from Eddie became final. It simply would not have been an issue. Moreover, on January
4, 1991, when asked (if she claimed that she was not aware when she married Henry
that her marriage to Eddie was undissolved) to "explain when, and under what circumstances,
[she] became aware of this fact," Anne responded: "THE PAPERS WERE MAILED TO ME SOMETIME
LATER." The undeniable implication of this statement is that upon receipt of the divorce
papers Anne realized that when she underwent the marriage ceremony with Henry she
was still married to Eddie.
Finally, Anne's claim to have remained on good terms with Henry but not to have known
about his marriage to Zuella also lacks credibility.3_/ If you believe that before
his death Anne knew of Henry's marriage to Zuella, then that knowledge may be viewed
as cutting off her status as Henry's putative spouse, if any such status ever developed.
Anne and Henry's marriage was not valid when celebrated because at the time she had
a living husband from whom she was not divorced. Although six days later Anne's prior
marriage was dissolved, her marriage to Henry did not thereby become valid because
Anne and Henry did not live together as husband and wife at any time after October
1, 1977. The only evidence that would support a finding that Anne was Henry's putative
spouse because of a good faith belief that their marriage was valid comes from Anne's
own statements, but these are inherently unreliable and inconsistent.
1_/ The divorce decree references a minor child of Anne and Eddie and awards Anne
2_/ On January 4, 1991, Anne submitted written answers to questions that you propounded
to develop the file.
3_/ We are assuming that you have adequate proof of Henry and Zuella's marriage. The
file that we have does not contain any documentation of that relationship.