PR 05405.053 Washington
A. PR 00-109 Validity of Marriage
DATE: April 2, 1999
A marriage license may not be used until 3 days after the date of application. A marriage that does not comply with the three-day waiting period required by the Washington statute is voidable. A voidable marriage is valid for all purposes until annulled and can be attacked only in a direct proceeding during the lifetime of both spouses.
You have asked for a legal opinion regarding the validity of a marriage in which the applicant and the spouse entered into a ceremony prior to the expiration of the State-mandated waiting period.
The claimant, Deborah J. B~, and her putative spouse, Douglas H~, applied for a marriage license on February 2, 1998, in the State of Washington. Two days later on February 4, 1998, Reverend Steve P. S~ performed the marriage ceremony and signed the Marriage License. Two individuals, Jon and Sandy M~, witnessed the ceremony.
Recently, Ms. B~ filed for widow's benefits on the record of Robert A. J~, SSN ~, her previous husband. She claims that her marriage to Mr. H~ is not valid.
For the reasons set forth below, we find that the marriage of Deborah J. B~ and Douglas H~ is a valid but voidable by court decree.
Section 216(h)(1)(A) of the Social Security Act, 42 U.S.C.A. § 416(h)(1)(A), provides:
An applicant is the wife, husband, widow, or widower of a fully or currently insured individual for purposes of this title 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 . . .. If such courts would not find that such applicant and such insured individual were validly married at such time, such applicant shall, nevertheless be deemed to be the wife, husband, widow, or widower, as the case may be, of such insured individual if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a wife, husband, widow, or widower of such insured individual.
Two Washington statutes address the requisites of ceremonial marriage. The first states:
Before any persons can be joined in marriage, they shall procure a license from a county auditor, as provided in RCW 26.04.150 through 26.04.190.
Wash. Rev. Code § 26.04.140 (1998). The second statute states:
The county auditor may issue the marriage license at the time of application, but shall issue such license no later than the third full day following the date of the application. A marriage license issued pursuant to the provisions of this chapter may not be used until three days after the date of application and shall become void if the marriage is not solemnized within sixty days of the date of the issuance of the license, and the county auditor shall notify the applicant in writing of this requirement at the time of issuance of the license.
Wash. Rev. Code § 26.04.180 (1998). In the present case, Ms. B~ and Mr. H~ should have waited until February 5, 1998 (which is three days from the date of the marriage application) to marry. Instead, they married one day early.
A marriage that does not comply with the three-day waiting period required by § 26.04.180 is voidable. Estate of Alda May Thomas Crittenden v. Crittenden, 29 Or.App. 189, 191 (1977) (applying Washington law). A “voidable marriage is valid for all purposes until annulled, and can be attacked only in a direct proceeding during the lifetime of both spouses.” Romano v. Romano 40 Wash.2d 796, 803-04 (1952). In other words, the marriage remains valid until it is set aside by court decree in an action brought during the lifetime of the spouses. Id. at 803. In this case, there is no evidence that Ms. B~ or Mr. H~ has filed a court action to annul or set aside the marriage. Until one or the other files the court action and obtains a court decree, the marriage remains valid for all purposes.