PR 06305.042 Pennsylvania

A. PR 83-028 William D. S~, SSN~; Recognition of a Mexican Proxy Marriage and Subsequent Israeli Annulment

DATE: September 13, 1983



Pennsylvania courts would be bound by a decree of annulment of a marriage contracted by proxy in Mexico issued by an Israeli district court "unless the decree is so palpably tainted by fraud or prejudice as to outrage our sense of justice, or where the process of the foreign tribunal was involved to achieve a result contrary to (or to circumvent) our laws or public policy."

In this case the person applying for the annulment would be estopped from later challenging its validity were it to her advantage to do so and thus there being no challenge to the annulment the person would be considered "not married" under the law of Pennsylvania. (S~ William D., ~ -- RAIII(L~), to AC, OPP, 09/13/83.


In February 1982, Dorothy F~ pursuant to section 202 (e) of the Social Security Act, applied for widow's insurance benefits on the account of William D. S~ The applicant is the widow of Mr. S ~ to whom she was married for 10 years before Mr. S~ death in 1952. However, in 1974, the applicant married an Israeli citizen by proxy in the state of Hidalgo, Mexico. The Mexican marriage by proxy was declared null by an Israeli district court in 1977 based on Jewish religious law.

The applicant's proxy marriage and annulment thereof raise the question whether she is presently "not married," a requirement which she mast satisfy in order to establish entitlement to widow's benefits under Section 202 (e) (1) (A) of the Act. You have posed several questions involving foreign law in an effort to resolve this issue. Attached is a response to those questions prepared by Llewellyn W. ~, OGC, Section Chief, Cash Benefits Branch, accompanied by memoranda prepared by law librarians of the Library of Congress.

Departmental precedent, however, dictates that the question of the applicant's current marital status be determined by the law of the state of her domicile at the time she filed an application for widow's benefits. See, e.g., Joseph V. Bly., D-11666, January 20, 1967. Consequently, we address whether the applicant would be viewed as "not married" under Pennsylvania law, her domicile at the time of her application.

The question is not whether a Pennsylvania court, itself, would grant the applicant a decree of annulment, 1_/ but rather, whether Pennsylvania would recognize the Israeli decree; that is, give it the same effect with respect to the applicant's marital status that the decree bas in the country where it was rendered.

Pennsylvania recognizes foreign nation's judgments under the doctrine of comity. _2/ In re C~ Estate, 192 A. 2d 739 (Pa. 1963), cert. denied, 375' U.S. 965 (1964). In deciding to recognize the legal status there in question as fixed by a Creek adoption decree, the Pennsylvania Supreme Court stated the following rule:

Where . . . it clearly appears that one of our domiciliaries involved the process and jurisdiction of a foreign tribunal we must ordinarily grant recognition and credit to the decree of such a tribunal unless the decree is so palpably tainted by fraud or prejudice as to outrage our sense of justice, or where the process of the foreign tribunal was invoked to achieve a result contrary to [or to circumvent] our laws or public policy. Id. 192 A 2d at 739.

See also Hilton v. Guyot, 159 U.S. 113 (1895); Restatement of Law, Conflict of Laws, 2d, § 98 (1971).

The first prerequisite to recognition therefore is a valid foreign judgment. Although the jurisdiction of a foreign court is always open to collateral attack, where such jurisdiction goes unchallenged by the parties subject thereto and there is nothing on the face of the record to indicate a lack thereof, jurisdiction may be presumed. Hilton v. Guyot, supra; 47 Am Jur. 2d., Judgments, p. 1264 (1969). It appears that the applicant was domiciled in Israel at the time of the proxy marriage, during the marriage, and at the time of annulment. There is nothing on the face of the Israeli judgment to suggest that the Israeli district court did not have personal jurisdiction over both spouses or that the parties lacked notice, or the opportunity for a hearing and representation.

Based on the attached summary of Israeli law, the district court also appears to have had proper subject matter jurisdiction to determine the marital status of Israeli domiciliaries. Consequently, we presume that a Pennsylvania court would find that the Israeli judgment was valid under Israeli law and rendered consonant with the precepts of due process.

However, under the doctrine of comity a valid foreign judgment may be denied recognition if it is contrary to the public policy of the forum. Rejection of a valid foreign judgment on this basis is rare. See 13 ALR Fed. 208, § 5 and cases cited therein. The Restatement, supra, § 117, comment c states that "[e] ven in a case where a valid foreign nation judgment would not be enforced [because repugnant to the forum's public policy], it may nevertheless be recognized and held to conclude the parties as to the issues decided."

In the present case, however, even were a Pennsylvania court to find that the annulment of an otherwise valid civil marriage by application of religious law was offensive to Pennsylvania public policy, Pennsylvania courts would, in certain circumstances, nonetheless recognize the annulment as binding. Thus, for example, if the applicant sought to enforce some mariani property rights arising out of the proxy marriage to Mr. F~, it is well established that, under Pennsylvania case law, she would be precluded or estopped from attacking a foreign divorce as invalid. R~ Estate, 47 A. 2d 23 (Pa. 1946), see also, Diamond v. Diamond, No. 81-3-458 (Pa. Supreme Court, Slip Opinion, July 1, 1983); Rosen v. Steiner, 418 A.2d 490 (Pa. Super. 1979). We believe that this principle of estoppel would apply equally to an attack on a foreign annulment as to one on a foreign divorce. Because the applicant voluntarily participated in the Israeli annulment proceedings, she would be estopped under Pennsylvania law from denying, for her own personal advantage, that the proxy marriage is void. Id.

The Department has recognized the principle that where a widow can be estopped to assert the invalidity of a divorce from a subsequent husband, she may be found to be "not married" for purposes of entitlement to widow's benefits under the Social Security Act. Joseph V. B~, supra; Willard V~ D-15430, August 7, 1973. This position was adopted to avoid the possibility of assigning certain applicants to a "legal purgatory" in which the applicant could not be considered the widow of the first husband (because married, albeit invalidly, to a second) nor the widow of the second husband (because the marriage was invalid). George W. C~ D-11323, March 7, 1966. The potential for such a situation exists equally in the case of a divorce or an annulment and the principle is applicable in this case.

In summary, because the applicant would be estopped to deny the validity of the Israeli annulment decree were she to seek some personal advantage from the proxy marriage, she may therefore be considered "not married" for purposes of widow's benefits based on Mr. S~ account.

1/ Pennsylvania follows the rule in Restatement of the Law, Conflict of Laws 2d., § 283 under which a marriage valid where contracted will be recognized everywhere as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the item of the marriage. In Re L~ Estate, 314 A. 2d 255, 258 (Pa. 1974). Israel, as the apparent domicile of the spouses at all times during the marriage, would be recognized at the state having the most significant relationship to the parties and the marriage. Id. A Pennsylvania court would therefore conclude, under its conflict of laws principles, that the validity of the marriage should be adjudged by Israeli law. However, because such law consists of religious law, a domestic court could not apply it without violating the requirements of separation of church and state. Jones v. Wolfe, 443 U.S. 595, 603 (1979).

2/ The Constitution recreates domestic courts to give "full faith and credit" to the judgments of sister states. (Art. 4, § 1 U.S. Constitution). Comity is a judicial doctrine which governs the recognition of extranational judgments but which has no express statutory basis.

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