The claimant, Virginia K~, was the recipient of Social Security benefits on the account
of her late husband, Paul K~. Mr. K~ died on February 16, 1980. On July 27, 1982 Ms.
K~ married Russell C. S~ in Maricopa County, Arizona. A petition to annul this marriage
was filed with an Arizona state trial court by Ms. K~ on July 21, 1983. The petition
alleged, inter alia, that at the time of the July 27, 1982 wedding, Mr. S~ was already
married to Eleanor D. C~ S~ and that this prior marriage constituted an impediment
to the S~ /K~ marriage. On October 18, 1983 the petition was granted and the S~ /K~
marriage was "declared to be null and void."
Your first question with regard to this case is, essentially, whether the annulment
rendered the S~ /K~ marriage void from the beginning or merely nullified it as of
the date of the decree. 1_/ Pursuant to section 25-301 of the Arizona Revised Statutes
("A.R.S."), a marriage may be adjudged "null and void when the cause alleged constitutes
an impediment rendering the marriage void." A pre-existing marriage, such as that
alleged in this case, is such an impediment. See, e.g., United States Fidelity and Guaranty Co. v. Industrial Commission, 25 Ariz. App. 244, 542 P.2d 825 (1975). We have frequently indicated that a marriage
annulled pursuant to this provision is void from the outset. E.g., GC opinion re Paul N. Smith, November 19, 1959;
Charles E. H~, May 21, 1951. 2/ Furthermore, we have also opined that under Arizona
law an annulment decree voids a marriage ab initio "even though . . . it is silent
as to whether the decree of annulment is retroactive or prospective in operation."
GC opinion re Paul N. cited above. A fortiori the decree in this case, which expressly provides that the
S~/K~ marriage is "void," should be construed as nullifying the marriage from the
outset. Accord United States Fidelity add Guaranty Co. v. Industrial Commission, cited above (widow's death benefits awarded under state worker's compensation law
reinstated retroactively from the date of the widow's second marriage, where marriage
was eventually annulled due to second husband's pre-existing marriage).
The annulment decree notwithstanding, you raise an interesting point regarding the
presumed validity of the later of two marriages. Your question reflects the advice
given in numerous opinions that the courts of Arizona follow the presumption of the
validity of the later of two marriages, and such presumption prevails unless it is
affirmatively shown that the first marriage remained undissolved by death or divorce
at the time of the second marriage.
GC opinion re Louis P~ March 19, 1959, and opinions cited therein; accord Kolombatovich v. Magma Copper Co., 43 Ariz. 314, 30 P.2d 832 (1934); Wilson v. W~, 1 Ariz. App. 77, 399 P.2d 698 (1965). At first glance, it would seem that the presumption
could apply to negate the annulment decree and validate the S~ /K~ marriage (at least
for SSA's purposes), since it is clear that the annulment was granted without a positive
demonstration that Mr. S~ was still married to his first wife at the time he wed Ms.
K~ . Of course, if the decree was issued in error, it would not be binding upon SSA.
GC opinion re Arthur M~, November 14, 1984. However, although the record of the hearing
suggests that the affirmative evidence ordinarily required to overcome the presumed
validity of a second marriage was not presented, we think that the annulment was properly
granted and would be sustained by the Arizona Supreme Court were it to consider the
matter.
The presumption of the validity of a second marriage was developed by the courts as
a means of doing justice by "effectuating a particular public policy such as upholding
legitimacy, favoring the participation in the decedent's estate of one who lived with
him as his spouse, and preserving the validity of a marriage where no strong public
policy would be served by doing otherwise." Dolan v. Celebrezze, 381 F.2d 231, 237 (2d Cir. 1967); 3_/ See Boyd v. Heckler, 588 F. Supp. 31, 33 (E.D.N.Y. 1984); Sepulveda v. Secretary of HHS, 570 F. Supp. 1423, 1426 (D.P.R. 1983); McGuire v. Califano, 440 F. Supp. 1031, 1035 (D. Neb. 1977). Accordingly, the court in Dolan suggested that, in the civil context, the presumption is to be relied upon only where
it furthers "important human values." Adopting this reasoning, we think that Arizona
would not entertain the presumption unless to do so would be equitable to all parties
concerned. See Wick v. Wick, 107 Ariz. 382, 489 P.2d 19 (1971) (actions 'for the dissolution of marriage are
equitable in nature).
The equities in this case do not favor the presumption. The S~ /K~ marriage was of
short duration lasting just over a year. Apparently, it did not result in any actual
or anticipated financial interdependence that would be undermined by the annulment.
Nor were there any children born of the marriage whose rights might be compromised.
See Boyd v. Heckler, cited above. Another noteworthy factor is that neither party disputed the allegations
regarding Mr. S~ pre-existing marriage or raised any other objection to the annulment.
4_/ Since recognition of the continuing validity of the first marriage would work
no hardship in this case, the purpose underlying the presumption would not be served.
Consequently, the presumption ought t. be discounted. 5_/
Once the presumption favoring the second marriage is put to rest, the continuity of
Mr. S~ first marriage must be presumed. See Kolombatovich v. Magma Copper Co., cited above; 10 C.J.S. "Bigamy" §16a ("where a marriage relation has once commenced,
it is presumed to continue"). On this basis the highest court of Arizona would, in
our opinion, recognize the annulment as having been properly granted due to the impediment
of Mr. S~ pre-existing marriage. SSA should do likewise.
Finally, you ask whether Arizona has an "Enoch Arden" 6_/ provision similar to section
4425(b) of the California Civil Code. The provision to which you refer states that,
under California law, a marriage may be annulled if at the time of the marriage [t]he
husband or wife of either party was living and the marriage with such husband or wife
was then in force, provided, however, that such husband or wife was absent and not
known to the party commencing the proceeding to be living for a period of five successive
years immediately preceding the subsequent marriage for which the judgment of nullity
is sought, or was generally reputed or believed by such party to be dead at the time
such subsequent marriage was contracted.
California Civil Code §4425(b). Arizona has no parallel civil statute. The only statutory
grounds for annulment are stated in A.R.S..section 25-.301, cited above. 7_/
1_/ We assume that you raise this issue because "[b]enefits previously terminated
because of a marriage or remarriage which is determined to be void may be reinstated
as of the month of the prior termination subject to administrative finality." POMS
GN 00305.340 (Emphasis added).
2_/ These opinions indicate that an annulment relates back to the date of the invalid
marriage regardless of whether the marriage was void or merely voidable. Although
we are not now prepared to modify this advice, we are concerned that voidable marriages
may, in fact, only be subject to invalidation as of the effective date of the. annulment
decree. Since the S~ /K~ marriage was void, we need not address the subject here.
We request, however, that you submit for our review any future Arizona case which
raises an issue as to the retroactive effect of an annulment of a voidable marriage.
3_/ Dolan involved consideration of the identical presumption under New York state law by a
Federal appellate court. In the absence of any Arizona decision on point, we think
that the Arizona courts would find Dolan, which was authored by Federal Circuit Judge F~, among the most esteemed of contemporary
jurists, highly persuasive.
4_/ Conversely, if Mr. S~ had opposed the annulment or If the decree had been issued
ex parte, the equitable balance would likely tip in the other direction.
5_/ Our conclusion in this case does not signal a retreat from our general advice
stated in the many prior opinions on the subject of the presumptive validity of a
second marriage. It is still true that under most circumstances, where for instance
one (putative) spouse has become economically dependent on the other or has changed
his or her position significantly in reliance upon the second marriage, or where children
have been born, the presumption will still prevail.
6_/ Enoch Arden is the protagonist of a poem of the same name by Tennyson. Having
survived a shipwreck, Enoch makes his way home after many years only to find his beloved
wife happily remarried. Enoch, being non-litigious by nature, keeps his identity a
secret until he succumbs to that peculiarly virulent victorian malady: a broken heart.
Acknowledging that not every castaway husband or wife can be counted on to pine away
in iambic silence, some jurisdictions have formulated laws designed specifically to
deal with the problems of remarriage and annulment darkly suggested and romantically
resolved in the poem.
7_/A.R.S. section 13-3606(B) (Arizona Criminal Code) does prohibit criminal prosecution
for bigamy of one "whose spouse by the former marriage has been absent for five successive
years without being known to such person within that time to be living .... "