PR 05405.052 Virginia

A. PR 03-118 Validity of Marital Relationship Between John T. H~ and Betty L. H~, SSN: ~—ACTION

DATE: April 18, 2003


Under the controlling law of the State of Virginia, the claimant's first prior marriage was invalid; the claimant was properly divorced from her other previous husbands; and the claimant entered into a valid marriage with the NH, and remained validly married to him until the date of his death.



On March 5, 2003, you asked our advice as to whether there was a valid marriage relationship between Betty L. H~ (claimant), a claimant for widow's insurance benefits, and the deceased, insured, John T. H~ (insured), SSN ~.


We have reviewed the information that you provided and have researched the relevant provisions of applicable law. It is our opinion that the claimant's marriage to the insured was valid.


According to your memorandum and the records that you provided, a certificate of marriage was issued to the claimant and Jack M~ on September 14, 1954. However, Mr. M~ had previously been married to Shirley (W~) M~, and, in accordance with then current Virginia law, their divorce decree, issued on September 10, 1954, prohibited both parties from remarriage (except to each other) for an additional four months after the date of their divorce. The claimant has stated that she married Mr. M~ because she was pregnant with his child. She said that she separated from him after learning that he had failed to comply with the requirements of his divorce decree. She said that she was advised that she did not need to obtain a divorce from Mr. M~ because their marriage was never valid. She subsequently married and divorced two times before marrying the insured. She married the insured on July 11, 1968, six days after she was divorced from Charles M~. The claimant remained married to the insured until the date of his death, November 18, 2001. All of the marriages and divorces in issue occurred in the State of Virginia. The insured was a resident of Virginia at the time of his death, and the claimant continues to reside in Virginia.


To determine a claimant's relationship as an insured's widow, the Commissioner looks to the law of the insured's permanent home at the time of his death. 20 C.F.R. 404.345. The insured's death certificate identifies the insured's usual residence and place of death as the State of Virginia. POMS GN 00305.165 properly sets forth the provisions of Virginia law. In 1919, the law of Virginia pertaining to the dissolution of the bond of matrimony was revised to incorporate the following provision:

On the dissolution of the bond of matrimony for any cause arising subsequent to the date of the marriage, neither party shall be permitted to marry again for six months from the date of such decree, and such bond of matrimony shall not be deemed to be dissolved as to any marriage subsequent to such decree, or in any prosecution on account thereof, until the expiration of such six months.

Heflinger v. Heflinger, 118 S.E. 316, 317 (Va. 1923), citing Virginia Code Section 5113.

In 1944, Section 5113 of the Virginia Code was amended to reduce the waiting period for remarriage from six months to four months. See Henderson v. Henderson, 46 S.E.2d 10, 11 (Va. 1948). This was the state of the law on September 10, 1954, when Jack M~ and Shirley (W~) M~ were divorced, and their divorce decree properly incorporated the four month waiting period requirement of the law. Accordingly, four days later, on September 14, 1954 (the date of the purported marriage between Mr. M~ and the claimant), Mr. M~ was not legally able to enter into a valid marriage contract. In 1960, the waiting period provision was removed from the law except as required to perfect an appeal, and marriages previously celebrated in violation of the prior provisions were deemed thereafter not to be invalid because of the prior provisions “provided that” the parties lived together until July 1, 1960, or were living together at the time of the death of one of the parties prior to that date. Va. Stat. § 20-118. This was the state of the law in 1968, when the claimant divorced Charles M~ and married the insured.

In Henderson, when addressing a marriage entered into in prohibition of the four month waiting period requirement, the Court noted that although a void marriage could be declared invalid by Court order under Section 5100 of the Virginia Code, such order was not required because, under Section 5087, a marriage “prohibited by law on account of either of the parties having a former wife or husband then living,” was “absolutely void, without any decree of divorce.” Henderson, 10 at 12. Accordingly, the understanding expressed by the claimant as to the invalidity of her first marriage appears to be accurate under th