PR 05405.017 Indiana
A. PR 07- 167 Indiana: Validity of a Columbian Marriage by Proxy
DATE: July 2, 2007
If the proxy marriage was valid in the place where it was celebrated, Indiana would consider the marriage valid. Columbia law provides that a marriage can be celebrated even if one of the parties to the marriage is not present if a special power of attorney to represent the absent spouse is issued before a public notary. The marriage certificate was duly recorded in the marriage registry of the parish where the marriage was celebrated, therefore, under Columbian law the marriage is presumed valid unless judicially challenged.
You asked whether a proxy marriage in Columbia is valid and whether it would be recognized in the State of Indiana. The answer to both questions is yes.
Alba F~ has applied for wife's benefits on the earning's record of Miguel F~. Ms. F~ provided a marriage certificate from Columbia showing that she and Miguel F~ were married there on September 12, 1965. Apparently, the marriage took place by proxy because Miguel was in New York at that time. Miguel's father, who was also named Miguel, stood in for his son at the ceremony in Columbia. The couple began living together in New York shortly after the ceremony, and they are still living together. They now reside in Indiana.
The Agency will find that an applicant is the wife of the insured "if the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application." 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345. Here, the insured lives in Indiana.
With the exception of same-sex marriages, Indiana would accept as legitimate a marriage validly contracted in the place where it was celebrated. See Bolkovac v. State, 98 N.E.2d 250, 254 (Ind. 1951) (validity of marriage depends on the law of the place where it occurs-looking to law in England to determine validity of marriage there); Ind. Code Ann. § 31-11-1-1(b) (West 2007) (same sex marriage is void in Indiana even if it was valid where contracted); Ind. Att'y Gen'l Op. No. 2004-3 (with exception of same-sex marriages, Indiana follows the general rule that validity of marriage is governed by the law of the place of its celebration); Mason v. Mason, 775 N.E.2d 706, 709 (Ind. App. 2002) (Indiana court recognized validity of Tennessee marriage of first cousins, even though such a marriage would not be permitted in Indiana). Therefore, if the proxy marriage in this case was valid under Columbian law, Indiana would consider the marriage valid.
We sought the advice of the Library of Congress regarding the validity of proxy marriages in Columbia at the time this marriage was contracted. According to a Senior Foreign Law Specialist at the Library of Congress, Columbia law provides that a marriage can been celebrated even if one of the parties to the marriage is not present if a special power of attorney to represent the absent spouse is issued before a public notary. Until 1990, the law provided only that men could enter into a marriage by proxy, since the marriage had to be celebrated before authorities of the wife's domicile. After the law was changed in 1990, either party to the marriage could marry by proxy. Here, the man was represented by proxy, so this is not an issue. The Library of Congress further advised that, since the marriage certificate in this case was duly recorded in the marriage registry of the parish where the marriage was celebrated, the marriage is presumed valid unless judicially challenged. Thus, the marriage in this case should be presumed valid under Columbian law. Since it is valid under Columbian law, Indiana would recognize it as valid, as well.
In sum, we conclude that the Agency can assume that the Columbian proxy marriage should be presumed valid and that Indiana would recognize the marriage.
Donna L. C~
Regional Chief Counsel, Region V
Suzanne L. D~
Assistant Regional Counsel
B. PR 86-016 Whether Failure to Record Indiana Marriage Certificate Renders Marriage Void
DATE: March 18, 1986
MARRIAGE — CEREMONIAL MARRIAGE — STATUTORY REQUIREMENTS — INDIANA
While it is a requirement of Indiana law for the person performing a ceremonial marriage (the minister in this case) to send a copy of the marriage certificate to the proper custodians of records to be recorded in these records, the failure to do so does not render the marriage void as would the failure on the part of the parties to the marriage to obtain a marriage license which renders the marriage void pursuant to statutory provision. (H~, Richard L., ~— RAV (K~), to ARC, Progs., 03/18/86.)
This is with reference to your February 26, 1986 inquiry concerning whether the failure to record a Indiana marriage license renders the marriage void.
The relevant facts appear to be as follows. Richard L. H~ died August 21, 1981. The claimant filed for mother's insurance benefits on September 23, 1981 and was found entitled to such benefits effective August 1981. Claimant advised SSA on November 14, 1983 she married Steven M~ on October 29, 1983 in Lawrence County, Indiana, thus terminating her mother's insurance benefits. She applied for survivor's insurance benefits on February 14, 1984 giving ~, Virginia Beach, Virginia as her home address. Claimant applied for mother's insurance benefits on January 21, 1986 indicating that she is living with her mother and two children in Temple, Texas, and her husband is still living in Virginia Beach.
In December 1985 claimant requested that her benefits be reinstated because several lawyers told her that the failure to record her October 29, 1983 marriage to Steven M~ rendered it void. The District Office contacted the Lawrence County Clerk's Office. That office has a record of the marriage license being obtained, but does not have a record of the marriage license being returned and recorded. The claimant stated that she went through a marriage ceremony performed by a minister in Indiana on October 29, 1983. The minister was contacted, verified he performed the marriage ceremony, and stated that he gave the completed form to the couple to be recorded. However, claimant states that she never saw the license again after giving it to the minister before the ceremony.
The applicable Indiana statutory provision states:
Every person who shall solemnize any marriage, by virtue of the provisions of this chapter, shall at such time give the original certificate to the persons married by him and, within thirty (30) days thereafter, file the duplicate certificate in the office of the clerk of the county in which the license was issued, which certificate shall be recorded by the clerk, together with such license ....
Ind. Code Ann. 31-1-1-5 (West 1985). The minister failed to adhere to the statutory requirement. Thus, the issue is whether the failure of the minister to file the original certificate rendered the claimant's marriage to Steven M~ void.
Indiana was an early subscriber to the view that "the presumption in favor of matrimony is one of the strongest known to the law." Teter v. Teter, 101 Ind. 129, 132 (1885). See also Rainier v. Snider, 174 Ind. App. 615, 369 N.E. 2d 666, 668 (1977). In Teter, the Court said at 101 Ind. 134:
Persons may be punished for not obtaining licenses to marry, or for not taking steps to secure a proper record of the marriage, but there may, nevertheless, be a valid marriage. The want of form, or the lack of ceremonial rites, does not impair a marriage contract, in cases where it is entered into from good motives and with an intention to contract a present marriage, and is followed by an open acknowledgment of the marital relation. (emphasis added)
By legislative enactment prohibiting common law marriages, the failure to obtain a marriage license rendered a marriage void in Indiana effective January 1, 1958. Ind. Code Ann. 31-1-1-3, 31-1-6-1 (West 1985); Williams v. Williams, 460 N.E. 2d 1226 (Ind. App. 3 Dist. 1984). Thus, the portion of the Teter opinion stating that the failure to obtain a marriage license does not impair an Indiana marriage is no longer applicable. Charles G. O~ ~, RA V (K~) to ARC Programs-Region V, 6/5/84.
However, the portion of the Teter opinion holding that the failure to secure a proper record of the marriage does not impair the marriage contract appears to remain applicable. Although we have not found any post-Teter Indiana decision addressing the issue, all cases we have found from other jurisdictions have held that the failure to record a marriage license does not effect the validity of the marriage. State v. Walker, 36 Kan. 297, 13 P. 279 (1887); Re Love, 42 Okla. 478, 142 P. 305 (1914); Kriznan v. Industrial Accident Commissioner, 14 Cal. App. 2d 419, 58 P.2d 405 (1936I; Madison v. Lewis, 151 Pa. Super. 138, 30 A.2d 357 (1943); In re Campbell's Estate, 260 WIS.625, 51 N.W.2d 709 (1952); In re Liberman's Estate, 162 N.Y.S.2d 62 (1957). The registration or recording of a marriage is not essential to its validity because such provisions are addressed to the officials issuing the license, certifying the marriage and making proper return and registration or recording, rather than to the parties to the marriage. 52 Am. Jur. 2d Marriage §41 (1970).
Accordingly, we conclude that the failure of the minister to file the duplicate marriage certificate for recording did not render claimant's October 29, 1983 marriage void.
C. PR 84-028 Questionable Validity of a Marriage Ceremony Performed In Indiana
DATE: June 5, 1984
FR MARRIAGE — CEREMONIAL MARRIAGE — STATUTORY REQUIREMENTS — INDIANA
Effective January l, 1958, the failure to obtain a marriage license renders a marriage void in Indiana. (0~, Charles G., ~ — RAV (K~), to ARC, 06/05/84.)
This is with reference to your inquiry concerning whether Laurie J. O~'s marriage is void or voidable under Indiana law.
The relevant facts appear to be as follows. Laurie J. O~ was born on June 29, 1966. The file contains a marriage certificate indicating that on July 22, 1983 a marriage certificate was issued indicating that Rev. Jesse M. S~ and Rev. David H~ married Laurie J. O~ and Marvin A. K~. Laurie submitted a statement on April 4, 1984 indicating that Mr. K~ was about 35 years old. Laurie's mother, Terri contends that her daughter's marriage was not valid under Indiana law.
In support of her position, Mrs. C~ has submitted an letter signed by the Deputy Clerk of the Circuit Court of St. Joseph County, Indiana, implying that the marriage certificate issued for Laurie and Marvin is unusual and questionable. Laurie states that the marriage ceremony was performed by Reverend H~ at the Open Door Rescue Mission in South Bend. She states that no license was obtained, no blood tests were made, and she did not have her parents' consent. A search of the county and state clerks offices reveal that the marriage was never recorded. The Social Security Administration's attempted to contact Rev. H~ and Rev. S~ , but found that the Open Door Mission was shut down for nonpayment of bills and fire hazards. Laurie indicates that the reverends were involved in a burglary ring and have probably left the area for Florida. She also stated that the mission has been "turned back into a whorehouse."
In her April 4, 1984 statement, Laurie stated that she had her name changed on her social security card to Laurie J. K~ . Subsequent to the July 22, 1983 marriage she lived with Marvin until October 1983 as Mr. and; Mrs. Marvin K~ . Laurie stated that, "I believed I was legally married until the law told me I was not." She introduced him to other persons as her husband. Marvin was incarcerated from October 1983 to February 7, 1984 in Kokomo, Indiana. There is a warrant out for his arrest and he is apparently wanted by legal authorities in several states.
The determinative question in this case is whether the failure of Laurie to procure a marriage license renders her July 22, 1983 marriage void or voidable. A recent Indiana Appellate Court decision held that where the evidence established that the parties failed to obtain a marriage license, their marriage was void. Williams v. Williams, 460 N.E.2d 1226 (Ind. App. 3 Dist. 1984). The Court stated at 1227:
The law in this state is clear. Anyone wishing to be married must obtain a marriage license from the clerk of the county of his or her' residence, IND. CODE §31-1- 1-3. The evidence in the case at bar establishes without contradiction that the W~ failed to obtain a marriage license. W~ presents this Court with a lengthy argument replete with citation to numerous foreign authority imploring the Court find a marriage in fact if not in law.
Had the parties brought their action prior to 1958, wife would have prevailed since at that time Indiana law specifically provided:
"When marriage valid. - No marriage shall be void or voidable for the want of license or other formality required by law, if either of the parties thereto believed it to be a legal marriage at the time."
B~ Ann. Stat. §44-302.
However, the Legislature subsequently expressly repealed this law in Acts 1957, ch. 78 §2 effective January l, 1958. At the same time the Legislature enacted legislation rendering all common-law marriages in Indiana null and void when entered into subsequent to January l, 1958. The statute prohibiting common-law marriages has since been readopted as IND. CODE §31- 1-6-1. (Emphasis added).
Laurie and Marvin did not obtain a marriage license from the clerk of the Indiana County in which they resided, St. Joseph County, in July 1983. Accordingly, their failure to procure a marriage license from the St. Joseph County Clerk rendered their July 22, 1983 marriage void.
Since the failure to obtain a license rendered the marriage void, it is not necessary to address questions regarding the validity of a marriage solemnized by a person apparently not authorized to do so and the validity of an underage marriage without parental consent.