PR 05405.018 Iowa
A. PR 04-102 Validity of Proxy Marriage - Wendell C. T~, SSN ~, and Adyline L. C~
DATE: September 8, 1987
Because the claimant's proxy marriage to the NH appears to comport with the 1945 statutory requirements of Oklahoma, and because it offends no public policy of Iowa (the resident State at the time of the marriage) or Ohio (the State in which the NH died domiciled), the marriage must be considered valid. Even if the formal proxy marriage would not be upheld, the couple would be considered to have had an informal common-law marriage.
This memorandum is in response to your request for our legal opinion as to whether the 1945 proxy marriage between Wendell C. T~, the now-deceased wage-earner (DWE), and Adyline L. C~ T~ would be considered valid. The information accompanying your request indicates that the parties, by and through their respective proxies, obtained in Oklahoma marriage license, and delivered a duplicate contract of marriage in the presence of witnesses and before Homorable James P. M~, Judge of the County Court of Tulsa County, Oklahoma on March 9, 1945. Neither Wendell nor Adyline was present in Oklahoma at the time the marriage was solemnized; instead each was represented by a proxy because Adyline resided in Iowa, and Wendell, a U.S. Army Officer, was stationed in Europe. For reasons that will be discussed more fully below, we conclude that under the relevant law, this marriage would be considered valid.
Although proxy marriage is considered to be unusual in contemporary American society, it is not unknown. Proxy marriage has been defined as an attempt to comply with the statutory formalities of marriage. The single distinguishing feature is that one or both of the parties is absent and is represented by an agent or proxy who has the authority to act on behalf of his/her principle in the marriage ceremony. 52 Am Jur. 2d MARRIAGE 13. During times of war, as was the case here, this type of marriage proved useful to men who were away in the service when they could not contract a valid marriage in any other way. Note, The Validity of Absentee Marriages of Servicemen, 55 YALE L.J. 735 (1946). Indeed, during World War II Minnesota enacted a statute expressly authorizing proxy marriages upon proof that the woman was pregnant. MINN. STAT. ANN. sec. 517.09. Although proxy marriages are still only recognized by many churches, the Roman Catholic Church, in Canons 1089 and 1091, expressly provides for solemnization of marriage by proxy where the proxy is authorized by the absentee. Whether such a marriage will be considered valid in American law, however, depends upon whether the state where one of the parties resides permits such marriages to be performed within its jurisdiction or, if not, whether the resident state will recognize such a marriage if performed in a jurisdiction where it is allowed, even if not permissible in the resident state. Therefore, the threshold question in this case is whether Iowa, the resident state of Adyline at the time of the proxy marriage, would either permit proxy marriage or recognize such a marriage performed elsewhere.
We found no Iowa cases which discuss the legality of proxy or absentee marriage in that jurisdiction. Indeed, there is remarkably little case authority on the validity of proxy marriages contracted anywhere in the United States. Several law review articles have been written on the subject, however. With respect to Iowa, one commentator wrote that the validity of proxy marriage had not been tested in Iowa, but found it significant that nothing in the Iowa statues [of that time or earlier] would militate against proxy marriage by requiring the presence of the marriage partners at the ceremony. 1 DRAKE L.REV. 43, 44 (1952). Another commentator noted that nine states honor proxy marriages formed within their borders: Florida, Idaho, Iowa, Kentucky, Montana, Nebraska, Oklahoma, Nevada, and New Mexico. M~, Case for Marriage by Proxy, 11 CLEVELAND-MARSHALL L.REV.313, 318 ( ).
It is also noteworthy that no state has failed to recognized a proxy marriage contracted in a jurisdiction which permits this form of marriage. See e.g. Barrons v. United States, 191 F.2d 92 (9th Cir. 1951) (all states which have passed on the question have recognized the validity of proxy marriages validly performed elsewhere). But see: Respole v. Respole, 70 N.E.2d 465 (Ohio Com. Pl. 1946) in which the court held the proxy marriage invalid because it was never consummated. One commentator wrote that "probably the greatest single factor compelling the use of proxy marriage is that of legitimizing children." 25 S. CAL. L. REV. 181 (1951).
Consequently in light of these interpretations of Iowa law by legal writers of the period, it is reasonable to assume that it may have been possible to contract a proxy marriage in Iowa. If that is so, then it follows that Iowa clearly would recognize a proxy marriage validly performed elsewhere. Since the marriage in question was performed in Oklahoma, it is necessary to examine Oklahoma law to determine whether there was any obstacle to solemnization of a proxy marriage in that state.
Proxy marriages were contracted frequently in Oklahoma during World War II although the statutes of the state did not specifically provide for such marriage. Howery, Marriage By Proxy and Other Informal Marriages, 13 U. KAN. CITY L. REV. 48 (1944). In that article, the commentator noted that the National Association of Legal Aid Committees named Oklahoma as the only state in the nation where a marriage could be legally performed without either the bride or groom being present. Id. at p. 92. According to Howery, there were no apparent objections of a practical nature which would militate against statutory marriages by proxy in Oklahoma, because "such marriages have taken place with more frequency in this state than in any other jurisdiction, with the possible exception of the state of Kansas". Id.
As Howery correctly observed, marriage in Oklahoma is based upon a contract, the two parties being married from the time they agree to be married regardless of whether or not they ever live together. Id. See also: Tice v. Tice, 672 P.2d 1168, 1171 (Okla. 1983).
Under Oklahoma law, marriage is defined as:
[A] personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary, and the marriage relation shall only be entered into, maintained, or abrogated as provided by law.
OKLA. STAT. ANN. tit. 43, §1.
At the time of the marriage in question, Oklahoma permitted a marriage license to issue on the affidavit of any responsible person with knowledge of the parties. OKLA. STAT. ANN. tit. 43, §5 (1945). There was no statutory requirement of the parties' presence; and prior to 1945, no health certificate was required. OKLA. STAT. ANN. tit. 43, §31 et seq. Although a health certificate was necessary after 1945, the requirement could be waived by a judge of a County Court under certain circumstances. OKLA. STAT. ANN. tit. 43, §32. (1945).
The application for marriage license signed by Norma W~, who was proxy and attorney-in-fact for Adyline, is in the material you sent for our review. On its face it appears to meet the requisites of Oklahoma law. The marriage license, also in the file, authorized the marriage of Wendell C. T~ and Adyline L. C~. Finally, as discussed previously, the Certificate of Marriage, which is signed by James P. M~, Judge of the County Court of Tulsa, and which bears the official State seal, attests that Wendell, by James B. D~, Jr., his proxy and attorney-in-fact, and Adyline, by Norma M~, her proxy and attorney-in-fact, executed, acknowledged, and delivered a written contract of marriage, in his presence. In our view, this attestation of the judge is the same as a judgment which is valid on its face, and which could have been collaterally attacked only in the manner provided by law. Fowler v. Goldfeder, 418 P.2d 317 (Okla. 1966). Hence, it appears that the proxy marriage met the statutory requisites of Oklahoma in 1945.
It is important to note, however that even if the marriage did not meet the statutory requisites, it would be considered only voidable, not void. _/1 See e.g., Respole v. Respole, supra. In that case, the husband brought suit against the wife to annul a marriage performed in West Virginia in 1943 while the husband was in India. The court held the marriage invalid because the wife would not live with the husband upon his return to the United States; in face the marriage was never consummated. The court said that then result would have been different if the marriage had been consummated since then it would have been recognized as a common law marriage in Ohio, the residence of the husband.
In a New York case, Ferraro v. Ferraro, 77 N.Y.S. 2d 246 (1948), the court held valid a proxy marriage, solemnized in Washington, D.C. In that case, as in the case under review here, the statutes were silent regarding proxy marriage. The court reasoned that since the license was validly obtained and a ceremonial marriage is presumed to be valid, unless the presumption is overcome, the F~ marriage would be considered valid under the law of the place of celebration and therefore valid elsewhere.
In our view the same rationale should be applied to the T~ marriage. As earlier discussed, the license appears to have been legally obtained, the contract was duly entered into by and through authorized agents, and the marriage was certified by a judge. As in most jurisdictions, Oklahoma law presumes that a ceremonial marriage is valid. Hale v. Hale, 135 P. 1143 (Okla. 1913). This presumption is one of the strongest in law, and is grounded in public policy favoring morality, marriage and legitimacy. The presumption increases in strength with time, recognition, and acknowledgment of the marriage by others, and with the birth of children. Marcum v. Zaring, 405 P.2d 970 (Okla. 1965)
Finally, it should be noted that both Iowa, the domicile of Wendell and Adyline at the time the proxy marriage was celebrated, and Ohio, their domicile at the time of his death, recognize common law marriage. Thus, in our opinion, even if, for some procedural irregularity, the formal proxy marriage would not be considered valid, it is clear that Wendell and Adyline would be considered married at common law since the requisites of an informal common law marriage were met: they intended to be married, they held themselves out as married, and they cohabitated as husband and wife for thirty years.
In summary, because the T~ proxy marriage appears to comport with the 1945 statutory requirements of Oklahoma, and because it offends no public policy of Iowa, the resident state at the time of the marriage, or Ohio, the state in which the wage earner died domiciled, we believed the marriage must be considered valid. Even if the formal proxy marriage would not be upheld, however, it is our view that the couple would be considered to have had an informal common law marriage of long standing. Therefore, in our opinion, Adyline, L. C~ T~ is entitled to widow's benefits on Wendell's wage record.
/s/ Charlene M. S~
Assistant Regional Counsel
_/1 A voidable marriage, the imperfection of which can only be inquired into during the lives of both of the parties, is valid for all civil purposes until annulled in a direct proceeding. A void marriage is a nullity and may be impeached at any time.