PR 05405.021 Louisiana
A. PR 01-166 Validity of a 1948 Marriage Between First Cousins in Louisiana
DATE: December 18, 1992
Louisiana law prohibits marriage between "collateral relations" including first cousins. However, the Louisiana legislature has enacted periodically laws to retroactively validate marriages between collateral relations. This occurred in 1972, 19/81, and again in 1987.
Under Louisiana law, marriages between collateral relations contracted prior to 7/26/72 were retroactively validated as of the effective date of the law (7/26/72). In 1981, the legislature retroactively validated marriages between collateral relations contracted prior to 9/11/81. This recognition was continued in 1987.
We are responding to your request for our opinion as to the validity of a marriage between first cousins in Louisiana. Specifically, Margaret B. D~ and Oris C. D~ were married in the State of Louisiana on September 20, 1948. Oris D~ died on October 1, 1967. Margaret D~ applied for widow's benefits on July 18, 1991. You have requested our opinion on this issue to assist you in determining whether Margaret B. D~ is the widow of the wage earner for purposes of entitlement to widow's benefits. For the reasons set forth below, we believe that Margaret B. D~ meets the requirements for entitlement to widow's benefits because laws enacted by the Louisiana state legislature retroactively validate her marriage to Oris C. D~.
The file you have provided indicates that Margaret B. D~ and Oris C. D~, the wage earner, were married in Lafourche Parish, Louisiana, on September 20, 1948. Oris D~ died on October 1, 1967. Margaret D~ then filed an application for mother's benefits on the record of Oris D~. The Social Security Administration (SSA) denied Margaret's claim for mother's benefits on January 22, 1970, after learning that she and Oris C. D~ were first cousins.
Evidence developed in the processing of Margaret's claim for mother's benefits indicates that Margaret knew at the time she married Oris that she and Oris were first cousins, and should have known or suspected that Louisiana law prohibited marriage between first cousins. Margaret stated that her father told her that she and Oris were first cousins as they were on their way to obtain their marriage license. She stated that her father then told her not to mention that she and Oris were first cousins unless someone asked whether they were related by blood. Margaret stated that no one asked whether they were first cousins, and she claims that she did not know until after her husband died that Louisiana law prohibited marriage between first cousins.
However, the priest of the church where Margaret and Oris were married stated that at the time they were married, they were required to state whether there was any prohibited relationship between them after the priest explained the importance of this question. Margaret and Oris had stated that there was no prohibited relationship between them. Margaret also signed the application for a marriage license, in which she and Oris had stated that there was no relationship between them. Based on this information, the SSA determined that Margaret had failed to establish that her marriage to Oris was entered into in good faith. Margaret filed an application for widow's benefits on July 18, 1991. This application also was denied, and Margaret requested reconsideration. Margaret's request for reconsideration is currently pending.
In order to be entitled to widow's benefits, Margaret must meet the requirements of Social Security Act §216(c), 42 U.S.C. §416(c) (see 20 C.F.R. §§404.345 and 404.346), and have been married to the wage earner for at least the nine months immediately preceding his death. See Social Security Act §202(e), 42 U.S.C. §402(e). See also 20 C.F.R. §404.335. The Social Security Act states that an applicant is the widow of the insured individual if the courts of the state in which the insured individual was domiciled at the time of his death would find that the applicant and the insured individual were validly married at the time the insured individual died. Social Security Act, §216(h)(1)(A)(i), 42 U.S.C. §416(h)(1)(A)(i); 20 C.F.R. §404.345. Although not free from doubt because the law validating the D~'s marriage was enacted after Oris D~'s death, we believe that a Louisiana court, applying its laws retroactively, today would find that Margaret's marriage to Oris D~ was valid at the time Oris died.
Margaret may also be considered the wage earner's widow if she was able to inherit a wife's share of the wage earner's personal property if the wage earner died intestate. Social Security Act, §216(h)(1)(A)(ii), 42 U.S.C. §416(h)(1)(A)(ii); 20 C.F.R. §404.345. Furthermore, Margaret may be entitled to widow's benefits if she entered the marriage in good faith, and did not know that a legal impediment to the marriage existed. Social Security Act, §216(h)(1)(B), 42 U.S.C. §416(h)(1)(B); 20 C.F.R. §404.346.
Under Louisiana law at the time Margaret and Oris D~ were married, marriage between "collateral relations," including first cousins, was prohibited. La. Civ. Code Compiled Ed. art. 95 (1902), Vol. 16, La. Stat. Ann. Civ. Code p. 56 (West 1972). This prohibition against marriages between first cousins is continued in La. Civ. Code Ann. art. 90 (West Supp. 1992). However, the Louisiana legislature has periodically enacted laws to retroactively validate marriages between first cousins. A retroactive law is one which gives a previous transaction a legal effect different from that which it had under the law in effect when the transaction occurred. Apicella v. Valley Forge Military Academy, 630 F.Supp, 20, 23 (E.D.Pa. 1985). Under Louisiana law, marriages between collateral relations contracted prior to July 26, 1972 are retroactively validated. 1972 La. Acts 230 , §1. 1_/
Louisiana Civil Code Article 6 states that substantive laws may only be applied prospectively, in the absence of contrary legislative expression. La. Civ. Code Ann. art. 6 (West Supp. 1992). There are, however, three exceptions to the principle of non-retroactivity: (1) laws that suppress or lessen penalties, (2) laws that are merely interpretive of existing legislation, and (3) laws that the legislature expressly or impliedly declared to be retroactive. St. Paul Fire & Marine Insurance Co. v.. Smith, 596 So.2d 272, 276 (La. App. 1992); Pullen v. Ziegler, 595 So.2d 1267, 1269 (La. App. 1992).
A law which creates, confers, defines, destroys or otherwise regulates rights, liabilities, causes of action or legal duties is a substantive law. American Waste & Pollution Control Co. v. State, 597 So.2d 1125, 1128 (La. App. 1992) (citing Thomassie v. Savoie, 581 So.2d 1031, 1034 (La. App. 1991), writ denied, 589 So.2d 493 (La. 1991)). Thus, because former Louisiana Civil Code article 95 regulated the right to marry by defining certain parties (i.e., first cousins) who may not marry each other, it was a substantive law. However, the Louisiana legislature, through 1972 Louisiana Acts 230, §1, has expressly validated marriages between first cousins contracted prior to July 26, 1972, the effective date of the Act. Thus, express legislative intent supports the retroactive validation of these marriages.
In granting recognition to marriages between collateral relations, 1972 Louisiana Acts 230, §1, states:
All such marriages [those among collateral relations] heretofore made in contravention of [Louisiana law] shall be considered as legal.
Under this language, any marriage made prior to the 1972 law would have been considered as legal in Louisiana as of the effective date of the 1972 law. Since the 1972 law was passed during a regular session of the legislature, the effective date of the Act is July 26, 1972. See OGC Legal Opinion of May 24, 1973 (Ref: Act No. 230, 1972 Louisiana Legislature). Because the marriage between Margaret and Oris D~ was made on September 20, 1948, prior to the effective date of the 1972 law, the marriage is valid under Louisiana law. Thus, the death of the wage earner, Oris D~, on October 1, 1967 does not prohibit State recognition of his marriage to Margaret. Under a literal reading of the 1972 law, the marriage between Margaret and Oris was "heretofore made" and therefore could be "considered as legal."
Because 1972 Louisiana Acts 230, §1 retroactively validated all marriages between first cousins contracted prior to July 26, 1972, the marriage between Margaret D~ and Oris D~, which was contracted on September 20, 1948, was made valid. Thus, we believe that §216(h)(1)(A) of the Social Security Act, 42 U.S.C. §416, can be read to support a conclusion that Margaret D~ is entitled to widow's benefits because, in our view, a Louisiana court, applying its law retroactively, would find that she was validly married to the wage earner, Oris D~, at the time of his death.
The Social Security Act also states that a claimant for widow's benefits may be considered the wage earner's widow if she was able to inherit a wife's share of the wage earner's personal property under Louisiana law if the wage earner died intestate. Social Security Act, §216(h)(1)(A)(ii), 42 U.S.C. §416(h)(1)(A)(ii). See also 20 C.F.R. §404.345. We believe that the facts of Margaret D~'s claim fully satisfy the requirements of this section of the Social Security Act. Margaret D~ has submitted a Judgment of Possession issued by the 17th Judicial District Court, Parish of Lafourche, Louisiana, which recognizes her as the widow of Oris D~. Although this document does not award Margaret D~ any of the wage earner's personal property, it does recognize her as the surviving spouse of Oris D~, and awards her an undivided one-half interest in the community property and the use of the other undivided one-half interest in the community property. Therefore, we believe that Margaret D~ qualifies as the widow of the wage earner under §216(h)(1)(A)(ii) of the Social Security Act, 42 U.S.C. §416 (h) (1) (A) (ii) because under laws applied by a Louisiana court she has been found to have the status of a wife for purposes of devolution of Oris D~'s intestate personal property.
In conclusion, Margaret D~ is entitled to widow's benefits under §216(h)(1)(A) of the Social Security Act, 42 U.S.C. §416, because she was validly married under Louisiana law to the wage earner, Oris D~, at the time of his death. An act of the Louisiana legislature retroactively validated all marriages between collateral relations contracted prior to July 26, 1972, including Margaret D~'s marriage to Oris D~. Thus, this marriage was made valid, and satisfies the marriage requirement
For Margaret D~'s entitlement to widow's benefits. In addition, Margaret D~ is entitled to widow's benefits under §216(h)(1)(A) of the Social Security Act because a Louisiana court has recognized her as the surviving spouse of Oris D~, and awarded her a share of this property.
1_ / In 1981, using the same language as the 1972 statute, the Louisiana legislature retroactively validated marriages between collateral relations contracted prior to September 11, 1981. 1981 La. Acts 647, §1. This recognition of marriages between collateral relations was continued in 1987 La. Acts 886, §5.
B. PR 00-042 Validity of a Marriage under Louisiana Law and of a Divorce under Texas Law (James M~, ~)
DATE: October 6, 1999
* An invalid marriage license does not invalidate a marriage if the parties took part in a marriage ceremony performed by someone that both parties reasonably believed was capable of performing the marriage;
* Louisiana statutory time limits invalidate a marriage license more than thirty days after the issuance of the license, but this has no effect on the validity of the marriage; and
* A marriage ceremony can occur in a parish other than the parish of issuance of a marriage license.
Official court records, e.g. judicial minutes, are sufficient evidence of the existence of a Texas judgement of divorce.
This memorandum is in response to your request for our legal opinion as to whether a marriage valid in Louisiana if it occurs more than a year after the issuance of a marriage license, and whether, in Texas, a minute entry indicating that a divorce was granted is adequate to prove an actual divorce. There are actually four distinct questions presented by the facts of this case. First, is a valid marriage license required for a marriage to exist under Louisiana state law? Second, is there a time limit from the issuance of a marriage license to the actual marriage ceremony? Third, can a valid marriage ceremony occur in a parish other than the one in which the license is issued.? And fourth, what is required to establish that a divorce occurred under Texas state law?
In summary, the answers to the questions are: 1) the validity of a marriage license is of no consequence if the parties took part in a marriage ceremony performed by someone that both parties reasonably believed was capable of performing the marriage; 2) Louisiana statutory time limits invalidate a marriage license more than thirty days after the issuance of the license, but this has no effect on the validity of the marriage; 3) a marriage ceremony can occur in a parish other than the parish of issuance of a marriage license; and 4) official court records of a divorce arc evidence of the existence of a proper Texas divorce.
James M~ and Patsy J. E~ were issued a license to be married on September 30. 1961, in DeSoto Parish, Louisiana. According to the marriage certificate, they were married by ceremony on April 30, 1963, in Haughton, Bossier Parish, Louisiana. There exists a court minute entry stating that a divorce was granted to Mr. M~ and Ms. E~ on December 11, 1972, in Corpus Christi, Nueces County, Texas. There are also Pat H~'s (a/k/a Patsy J. E~ a/k/a Patsy M~) own statements in the Social Security claims file that corroborate that she was divorced from James M~.
Pat H~ applied for widow's benefits as the surviving divorced spouse of James M~. As you know, she would be entitled to such benefits if she otherwise met the criteria for widow's benefits and she was validly married to the wage earner for ten years immediately before her divorce became final. 42 U.S.C. § 416(d)(2); 20 CFR. § 404.336.
The Louisiana Civil Code outlines the contract of marriage as requiring (1) that the man and woman have no legal impediments to marriage, (2) that a marriage ceremony be performed, in which each party takes the other as husband and wife, and (3) that the ceremony be performed before someone that the parties reasonably believe is qualified to perform the ceremony. La. Civ. Code Ann. arts. 86 and 87. The Louisiana Revised Statutes provide that a marriage must be performed by an officiate, who can be a judge, justice of the peace, or minister. La. Rev. Star. Ann §§ 9:201-9:203. The statutes further provide that an officiant may not perform a marriage until he has received a license authorizing the marriage ceremony, issued in any parish regardless of the place that the marriage ceremony is to take place or the residence of the parties. La. Rev. Star. Ann. §§ 9:205 and 9:222. The marriage license is valid for thirty days after issuance. Rev. Star. Ann. § 9:235. No officiant may perform a marriage before seventy-two hours from the time of issuance nor after the expiration of a marriage license. La. Rev. Stat. Ann. §§ 9:235, 9:241.
Notwithstanding the statutory law, the Louisiana courts have emphasized that the only formal prerequisite to marriage is a ceremony performed by an individual the parties believed to be an officiate; therefore, the absence of a valid license does not necessarily invalidate a marriage. Succession of Jene, 173 So.2d 857 (La. App.4th Cir. 1965).1_/ In Jene, a Louisiana appellate court stated that violation of the aforementioned statutes, prohibiting a minister or other person from celebrating marriage unless done under authority of a marriage license, would not have the effect of invalidating an otherwise legal marriage. The court further stated that the Louisiana statutes regarding the requirements for a valid marriage license are directed to the officiate, not the couple being married. Therefore, the court held that a marriage which had been otherwise duly contracted and solemnized is not null for want of a proper marriage license, confirming that a valid marriage exists even where there is not a valid marriage license. Id.
Addressing the question of what is required in Texas to prove that a divorce exists, Texas law provides that a judgment by a state court is always admissible as evidence for the purpose of proving that the judgement was rendered. Wilson v. Wilson's Estate, 581 S.W.2d 729 (Tex. App.-Dallas 1979, rehearing denied).
In the present case, we do not have the actual judgment. However, the Social Security claims folder contains a copy of the judicial record minute entry stating that a judgment of divorce was granted. A similar situation was faced by a Texas appellate court, which held that the judicial records, consisting mainly of the memorandum of judgment and the minutes, were properly before the court as evidence of the terms and effects of the judgment. McCarthy v. George, 623 S.W.2d 772 (Tex. App-Fort Worth 1981, rehearing denied). The court further held that judicial documentation was of the sufficiency and weight necessary to establish the existence of a divorce despite contradictory evidence, which existed in that case. Id. Another Texas appellate court stated that judicial records are always admissible as evidence of the fact that. a judgment had been rendered, the time of the rendition and the effects of the judgment, but not the underlying facts which the judgment was based. Scott v. Scott, 554 S.W.2d 274 (Tex. App.-Houston [1st Dist.] 1977, no writ) (citing Adams v. State Bd. of Ins., 319 S.W.2d 750 Tex. App.-Houston 1958, second motion for rehearing overruled January 8, 1959).
The principle that judicial records reflect the existence of a judgment is recited in several types of cases. For example, a notice of judgment of bankruptcy was admissible to prove that a judgment of bankruptcy existed. Nichols v. International Harvester Credit Corp., 533 S.W.2d 896 (Tex. App.-San Antonio 1976, n.w.h.) Further, the Department of Public Safety's abstracts of judgment and notices of conviction were found to be evidence of the actual judgments. Tomlinson v. Texas. Dept. of Public Safety, 429 S.W.2d 590 (Tex. App.-Corpus Christi 1968, n.w.h.); Gunn v. Texas. Dept. of Public Safety, 410 S.W.2d 207 (Tex. App.-Amarillo 1966, n.w.h.).
In summary, Louisiana law establishes that even without a valid marriage license there is a valid marriage as long as the parties had no other impediments to marriage, took part in a marriage ceremony, and believed that the person conducting the ceremony was qualified to do so. Texas law clearly establishes that the judicial minutes are sufficient evidence of the existence of a judgment of divorce. It therefore appears from the evidence in the case file that Pat H~ was married to James M~ from April 30, 1963, until their divorce was granted on December 11, 1972.
1_/ The language of Jene reiterates the law as it was presented in Holmes v. Holmes, 6 La. 463 (1834) and in the 1870 codification of the Louisiana Civil Code.