Basic (08-06)

PR 06305.011 Florida

A. 11-130 Validity and Effect of Chilean Annulment under Florida Law

DATE: July 15, 2011

1. SYLLABUS

OGC reviewed the marriage between a claimant and a number holder, which a Chilean court purportedly annulled, was a valid marriage and satisfied the ten-year duration requirement for the claimant to qualify for wife’s insurance benefits as the divorced wife of the number holder. It is the OGC opinion that despite the Chilean annulment, the marriage between the Claimant and NH was valid and satisfies the ten-year duration requirement for the Claimant to qualify for wife’s insurance benefits as NH’s divorced wife.

2. OPINION

QUESTION

You have asked whether the marriage between the claimant and the number holder, which a Chilean court purportedly annulled, was a valid marriage and satisfied the ten-year duration requirement for the claimant to qualify for wife’s insurance benefits as the divorced wife of the number holder.

OPINION

Based on the information provided and the opinion of the Library of Congress, we conclude the marriage between the claimant and the number holder, while annulled, was a valid marriage and satisfied the ten-year duration requirement for the claimant to qualify for wife’s insurance benefits as the divorced wife of the number holder.

BACKGROUND

According to the information provided, on January 3, 2011, Lucia T~ (Claimant) filed for wife’s insurance benefits as a divorced wife of Ociel C~, the number holder (NH). Claimant and NH married in Chile on November 28, 1957. Chilean law did not permit divorce until November 2004. However, Claimant presented the couple’s Chilean marriage certificate with a stamp showing that they had a total separation of property on April 6, 1966, and that the judge of the court of Q~, Chile, annulled their marriage on December 6, 1990. On April 26, 1991, the clerk recorded this decree of annulment on the couple’s Chilean marriage certificate.

On January 28, 2011, we advised your office that we needed additional information before we could render an opinion. In response, you reported:

(1) The basis for the annulment was abandonment;

(2) NH and Claimant separated in 1966 and NH emigrated to the United States; when NH returned to Chile for a visit, both he and Claimant agreed to obtain an annulment;

(3) Because NH and Claimant jointly sough annulment, any issue of notice is irrelevant; and

(4) At the time of the annulment, Claimant resided in Chile and NH resided in Florida.

Based on this information, we requested an opinion from the Library of Congress, asking them to respond to three questions:

(1) Was the purported annulment by a Chilean judge of the Chilean marriage between Claimant and NH valid?

(2) If the annulment was not valid, would the parties still be considered married under Chilean law?

(3) If the annulment was valid, did it render the marriage void from its inception or merely terminate the marriage as of the date of the annulment?

When reviewing our request, the Library of Congress attorney asked that we confirm the reason for the annulment, indicating that abandonment is not a valid basis for annulments in Chile. Further, the attorney requested that we obtain from Claimant the actual order of annulment, which should state the reason for granting the annulment. The Agency thereafter recontacted Claimant, who reported she had no further documents. Based on the lack of additional documentation from Claimant, we clarified our request to the Library of Congress, as:

(1) In the absence of any further documentation, is there anything in Chilean law presuming from the four corners of the marriage certificate and, specifically, the annulment language contained therein, that the annulment was proper and valid?

(2) If so, what is the presumed effect of such an annulment under Chilean law, if any, based solely on the four corners of the marriage certificate absent further evidence such as the order of annulment? That is, does Chilean law presume the annulment voided the marriage or merely ended it?

By letter dated June 16, 2011, attached, the Library of Congress responded to our request, stating:

Based on the marriage certificate submitted, which is considered an authentic official document unless successfully challenged in a court of law, the marriage in question was annulled by a final decision of the . . . Quilpue Lower Court . . . [on] December 12, 1990, and recorded in the competent Civil Registry on April 26, 1991.

The Library of Congress opinion further stated that, “[i]n the absence of a copy of the actual annulment decision issued by the court, and based solely on the marriage record at hand, the marriage appears to be putative, presuming the good faith of the spouses.” Further, the “annulment of the marriage in question became effective as to the spouses on December 12, 1990, but only became effective as to third parties on April 26, 1991, when the court’s decision was recorded in the competent Civil Registry.” Finally, the marriage “ceased to have full civil effects from the moment that the good faith of both parties was lacking,” that is, “at the time the annulment was filed” for the plaintiff, and “at the time of his reply to the request for the annulment was filed” for the defendant.

DISCUSSION

To qualify for wife’s insurance benefits as the divorced wife of an individual entitled to old-age benefits, a claimant must have been validly married to the individual under applicable State law and the marriage must have lasted for a period of at least ten (10) years immediately before the divorce became final. See Social Security Act (Act) §§ 202(b)(1), 216(d)(1); 20 C.F.R. § 404.331(a)(1), (a)(2) (2010); Program Operations Manual System (POMS) RS 00202.001(A)(1); POMS RS 00202.005(A). The term “divorce” refers to a divorce a vinculo m~, one that irrevocably ends the marriage relationship. See Act § 216(d)(8); POMS GN 00305.120(B). However, whether a court dissolving a marriage refers to its judgment or decision as a “divorce” or an “annulment” is not necessarily dispositive of its legal effect. See Social Security Ruling 69-1. A decree of “annulment” may: (1) constitute a judicial declaration that a purported marriage was void ab initio (a nullity that never existed); (2) terminate a voidable marriage (a marriage that is defective); or (3) terminate a valid marriage (essentially a divorce). [1]

To determine whether a claimant and a NH were validly married, SSA looks to the laws of the state where the NH was domiciled at the time of the claimant’s application. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345 (2010). The information provided indicates NH was domiciled in Florida when Claimant filed her application for wife’s insurance benefits as NH’s divorced wife. Florida courts have concluded that “[o]nce a marriage is shown to have been ceremonially entered into it is presumed to be legal and valid.” Stewart v. Hampton, 506 So. 2d 70, 71 (Fla. Dist. Ct. App. 1987) (citing Grace v. Grace, 162 So. 2d 314, 317 (Fla. Dist. Ct. App. 1964)).

As a divorce or annulment affects whether a couple is now married, the question of whether a valid marriage exists at any given time necessarily includes the question of whether and when the marriage may have ended. Consequently, we look to Florida law to determine the validity and effect of the Chilean annulment. Specifically, we must determine whether the annulment voided the marriage from its beginning, and, thereby, prevented Claimant from meeting the 10-year duration of marriage requirement.

The controlling inquiry is whether Florida would recognize the Chilean annulment as valid and entitled to comity. When an out-of-state decree is one entered by the court of a foreign nation, rather than a state or territory of the United States, Florida courts have discretion as to whether to recognize it and give it effect, which is “a matter of ‘comity.’” Popper v. Popper, 595 So. 2d 100, 102-03 (Fla. Dist. Ct. App. 1992) (citations omitted). Florida’s “well-established principles of comity suggest that . . . [Florida courts] should generally recognize the decisions of a foreign court.” Scotts Co. v. Hacienda Loma Linda, 2 So. 2d 1013, 1016 (Fla. Dist. App. 2008). Under Florida law,

any foreign decree should be recognized as a valid judgment, and thus be entitled to comity, where the parties have been given notice and the opportunity to be heard, where the foreign court had original jurisdiction and where the foreign decree does not offend the public policy of the State of Florida.

Nahar v. Nahar, 656 So. 2d 225, 229 (Fla. Dist. Ct. App. 1995). The Florida Court of Appeals recently indicated that a trial court properly applied this rule in domesticating a Canadian annulment decree upon finding the Canadian court had jurisdiction to decide the matter and the decree did not offend Florida’s public policy. See Deegan v. Taylor, 28 So. 3d 227, 228 (Fla. Dist. Ct. App. 2010).

Applying the principles established in N~ to the facts here, NH and Claimant were joint parties to the annulment and, thus, had notice of that proceeding and the opportunity to be heard. Further, there is no evidence that the Chilean court, which annulled the marriage in December 1990, lacked jurisdiction to decide the matter, as that judgment was acceptable when it was recorded in April 1991. Finally, there is no evidence that recognizing the Chilean annulment would offend the public policy of the State of Florida. Accordingly, we believe a Florida court would recognize as valid the annulment decree and give it full effect under rules of comity.

Based on the opinion of the Library of Congress, Claimant and NH in good faith validly entered into their marriage in Chile on November 28, 1957. Florida would consider this marriage valid. Furthermore, although the Library of Congress explained that abandonment, the basis Claimant offered for the annulment, was not a proper basis for annulment under Chilean law at that time, we believe a Florida court would accept the annulment as valid under principles of comity, as the marriage certificate recording the annulment does not provide any basis on its face for disputing the validity of the annulment. Given these findings, Florida would consider NH and Claimant were validly married and their marriage lasted just over thirty-three years, from November 28, 1957, until it ended via annulment on December 12, 1990. Thus, Claimant’s marriage to NH satisfies the ten-year duration of marriage requirement for her to qualify for wife’s insurance benefits as NH’s divorced wife. See Act §§ 202(b)(1), 216(d)(1); 20 C.F.R. § 404.331(a)(2) (2010); POMS RS 00202.005(A).

CONCLUSION

For these reasons, we believe that, despite the Chilean annulment, the marriage between Claimant and NH was valid and satisfies the ten-year duration requirement for Claimant to qualify for wife’s insurance benefits as NH’s divorced wife.

Very truly yours,

Mary A. S~

Regional Chief Counsel,

By ___________

Jerome M. A~

Assistant Regional Counsel

B. PR 06-288 Validity and Effect of a Chilean Annulment

DATE: August 15, 2006

1. SYLLABUS

Under Florida law, the validity of a marriage is determined by the law of jurisdiction where the marriage occurred. The claimant presented the couple's Chilean marriage certificate with a stamp showing that the marriage had been annulled in Chile. Chilean divorces were not permitted until November 17, 2004. Assuming the nullity of marriage was duly recorded in the marriage records in the Civil Registry, the Chilean marriage was validly terminated by the judicial nullity declared. The nullity becomes effective on the date the decision is recorded in the marriage record in the Civil Registry.

2. OPINION

QUESTIONS

You asked us whether the annulment of the marriage between Norma E~ and Pedro E~ was valid? If the annulment was not valid, would the parties still be considered married? If the annulment was valid, what would be the effect of the annulment?

ANSWERS

Here, the annulment would be considered valid. As such, the former spouses lose their respective inheritance rights. Therefore, Norma E~ would not be able to obtain spousal benefits on the account of Pedro E~.

BACKGROUND

Norma E~, Claimant, and Pedro E~, number holder (NH), were married in Chili on November 29, 1963. Chilean law did not permit divorce until November 2004. However, Claimant presented the couple's Chilean marriage certificate with a stamp showing that the marriage had been annulled in Chile on January 21, 1980.

Claimant was subsequently married to Gabriel A. W. G~ in Ecuador on November 5, 1981.

On August 25, 2005, Claimant filed for spousal benefits on the record of the NH. At the time of her application, she was unable to produce a divorce decree from her marriage to Mr. G~.

On March 6, 2006, Claimant filed a new application for spousal benefits on the record of the NH. And she submitted a divorce certificate showing that she divorced Mr. G~ in Ecuador on January 16, 2006.

Since Claimant is now divorced and unmarried, we return to the questions presented above.

DISCUSSION

The Social Security Act (Act) provides that "an applicant is the wife, husband, widow, or widower" of an insured individual 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 . . . ." § 216(h)(1)(A)(i) of the Act, 42 U.S.C. § 416(h)(1)(A)(i). At the time of Claimant's application, NH was domiciled in Florida. So, we first look to Florida law to determine whether she and NH have a valid marriage. Under Florida law, the validity of a marriage is determined by the law of the jurisdiction where the marriage occurred. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Because NH and Claimant were married in Chile, we must look to that Chilean law.

The Act also allows a finding that the applicant is the wife, husband, widow, or widower if the courts of that state would determine the applicant could inherit a wife's, husband's, widow's, or widower's share of the insured's personal property if he or she were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act. If NH were to die without a will, Florida law states that a surviving spouse is entitled to a share of a spouse's personal property. See FLA. STAT. § 732.102 (2006). However, Florida, as noted above, looks to the jurisdiction where the marriage took place to determine its validity.

As the marriage between Claimant and NH was allegedly annulled, it is necessary to determine the effect of such annulment as this will determine whether the marriage was valid or void ab initio. As a general matter,

"an action or proceeding for the annulment of a marriage differs from a divorce proceeding in that the latter is instituted to sever a marriage relation admitted to exist, whereas an annulment proceeding is for the purpose of declaring judicially that because of some disability or defect which existed at the time of the marriage ceremony, no valid marriage ever took place between the parties or that no valid marriage relation ever existed between the parties. An annulment is also to be distinguished from a divorce in that as a general rule an annulment proceeding is for causes for avoidance of the marriage existing at the time of the marriage, whereas a divorce ordinarily is for causes arising after the marriage. Annulment and dissolution of marriage differ fundamentally in that an annulment renders the marriage void ab initio while a dissolution is based upon a valid marriage which terminates as of the date of the judgment of dissolution."

4 Am. Jur. 2d Annulment of Marriage § 1.

As previously noted, Chile did not permit divorces until November 2004. The documents provided show that Claimant and NH obtained an annulment after 16 years of marriage.

Relevant documents presented

1. Marriage certificate between Norma E~ and Pedro E~ dated November 29, 1962 with a stamp showing that the marriage had been annulled in Chile on January 21, 1980.

2. Marriage certificate between Norma E~ and Gabriel G~ dated November 5, 1981.

3. Divorce certificate between Norma E~ and Gabriel G~ dated January 16, 2006.

4. Certificate from the Government of Chile stating that divorces were not permitted in Chile until November 17, 2004.

CONCLUSION

For the foregoing reasons, we believe SSA would deny Claimant spousal benefits on the account of NH.

Very truly yours,
Mary A. S~
Regional Chief Counsel
By: _______________


Footnotes:

[1]

Generally, an annulment differs from a divorce in that: the latter is instituted to sever a marriage relation admitted to exist, whereas an annulment proceeding is for the purpose of declaring judicially that because of some disability or defect which existed at the time of the marriage ceremony, no valid marriage ever took place between the parties or that no valid marriage relation ever existed between the parties. An annulment is also to be distinguished from a divorce in that as a general rule an annulment proceeding is for causes for avoidance of the marriage existing at the time of the marriage, whereas a divorce ordinarily is for causes arising after the marriage. Annulment and dissolution of marriage differ fundamentally in that an annulment renders the marriage void ab initio while a dissolution is based upon a valid marriage which terminates as of the date of the judgment of dissolution. 4 Am. Jur. 2d, Annulment of Marriage § 1.See POMS GN 00305.120(C); POMS GN 00305.125(A); POMS GN 00305.130(A).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1506305011
PR 06305.011 - Florida - 08/17/2011
Batch run: 11/29/2012
Rev:08/17/2011