You have requested our opinion as to whether Kittye A. G~ meets either the legal definition
of divorced spouse or wife of the number holder, Sam A. G~ .
The facts, as contained in the file, are that the number holder and Kittye were ceremonially
married on March 8, 1941, in Lauderdale County, Mississippi. Kitrye G~ submitted statements
certifying that she and Sam G~ separated in December of 1965, that he asked her for
a divorce, and that she refused. In March 1966, Mrs. Kittye G~ petitioned the Chancery
Court for the County of Lauderdale, Mississippi, for separate maintenance. On March
17, 1966, the Chancery Court issued a Final Decree granting Kittye separate maintenance
and awarding custody of two minor boys to Sam G~. Kittye's statements indicate that
she heard from her children that the number holder had divorced her in Mexico; however,
she maintains that she was never given notice of divorce proceedings, that she did
not appear in court, and that a lawyer advised her that the divorce was "not worth
the paper it was written on." The file indicates that the number holder secured a
divorce from Kittye in Nuevo Leon, Mexico, on July 25, 1966; he was the plaintiff
in the divorce action. Prior to the divorce, Sam G~'s residence was in Mississippi.
He established residence in Mexico for three weeks for the express purposes of securing
the divorce. On July 26, 1966, the number holder was married in Nuevo Leon, Mexico,
to Patricia Anne S~; they are now residing in Alabama.
Apparently, Sam G~ applied for retirement benefits on January 28, 1981. On his application,
he indicated that he had divorced Kittye and had been married to Patricia since 1966.
Raymond Keith W~, the natural son of Patricia S. G~, applied for surviving child's
benefits on January 28, 1981, based on the earnings of his stepfather, Sam G~. On
March 20, 1981, Kittye A. G~ filed application for wife's benefits on the earnings
record of Sam G~; she indicated that their marriage had not ended.
For Social Security purposes, an applicant is considered the wife of the insured if
the courts of the state in which the insured individual is domiciled at the time the
applicant files an application would find that such applicant and such insured individual
were validly married at the time the applicant files such application. 42 U.S.C. §
416(h)(1)(A). Inasmuch as the insured, Sam G~, was domiciled in Alabama at the time
of Kittye's application, the laws of Alabama are controlling in the determination
of whether Kittye is the legal wife of the insured.
The domestic validity of divorce judgments from foreign countries is not governed
by the full faith and credit clause of the Constitution, but by the rule of comity,
which permits recognition of judgments of courts of foreign countries pursuant to
international duty and convenience, with due regard for the rights of American citizens.
Thus, a decree of divorce granted in a foreign country by a court having jurisdiction
to do so will generally be given full faith and effect in this country. But the tests
of jurisdiction applied are ordinarily those of the United States rather than the
divorcing country. Regardless of its validity in the nation awarding it, the courts
of this country will not generally recognize a judgment of divorce rendered by the
courts of a foreign nation as valid to terminate the existence of the marriage unless,
by the standards of the jurisdiction in which recognition is sought, at least one'
of the spouses was a good-faith domiciliary in the foreign nation at the time the
decree was rendered. 13 A.L.R. 3rd., 1419 52,3. See, OGC opinions, OD 0565,Lyman C. M~ (Fla.), RA IV (W~) 7/17/81, and Alma T~ S.C.),
RA IV (W~) 2/26/81.
In divorce actions, as in any other action, due service of process in accordance with
local practice requirements is necessary to give the court jurisdiction to grant a
divorce. Ingram v. Ingram, 143 Ala. 129, 42 So. 24 (1905). A divorce granted without service of process upon
the defendant is void where he does not appear in the action or otherwise waive service
of process. Ida; 24 Am. Jur. 2d, Divorce and Separation § 282. If the defendant is
non-resident, the statutes commonly provide for constructive service by publication
of notice and mailing a copy of the notice and the complaint or petition. Under Alabama
law, it has been held that compliance with the rules on constructive service should
appear on the face of the decree or the decree will be treated as void; the mere fact
that the nonresident defendant in a divorce action had actual knowledge of the proceedings
is not sufficient to give the court jurisdiction. Partlow v. Partlow, 246 Ala. 259,20 So.2d 517 (1945). In this claim it has not been established that
Kitrye received constructive notice of the Mexican divorce. Sam G~ stated that Kitrye
was "presumably notified by mail" of the Mexican divorce. Kittye, however, has stated
that she learned of the divorce proceedings from her children. Thus, the divorce decree
appears flawed by the lack of constructive notice to the defendant in the proceedings.
Even if Kittye received notice, ex parte divorces, based on the petitioning spouse's
physical presence in the divorcing nation and notice to or constructive service upon
an absent defendant spouse, are ordinarily held within the rule denying recognition
to foreign divorce decrees procured without a showing of domicile by at least one
In the case of Wells v. Wells, 230 Ala. 430, 161 So. 794 (1934), the Alabama Supreme Court held invalid a Mexican
divorce obtained by the husband while on a vacation trip where the wife received constructive
notice but did not appear in the action. In affirming a declaratory judgment for the
wife, the court found that the husband went to Mexico solely for the purpose of obtaining
the divorce and that he had no intention of residing there, and held that no valid
divorce could be granted on constructive service by a state or nation in which neither
party is domiciled. The Wells court quoted an earlier Alabama case stating, "'If a party moves to another state
merely for the purpose of obtaining a divorce, and intended to remain no longer than
was necessary to accomplish his purpose, such a divorce would be invalid in this state.'
Thompson v. Thompson, 91 Ala. 591, 8 So. 419 (1890); Thompson v. State, 28 Ala. 12." The court in Wells further noted that the Mexican court did not recite
in its decree that the husband was a resident of that republic, and volunteered in
dicta that even if it had done so it could be contradicted to show that the decree
there rendered was null and void. See also, Haas- Phillips Produce Co. v. Lee and; Edwards, 205 Ala. 137, 87 So. 200 (1920); Crimm v. Crimm, 211 Ala. 13, 99 So. 301 (1924). The court noted that the husband and wife had been
married twenty-five years, that there was no hint of misconduct by the wife, that
the husband voluntarily abandoned her and married again after the divorce, and found
that the subsequent marriage was illegal in Alabama.
Thus, applying Alabama case law to the instant claim, it is clear that the 1966 Mexican
divorce obtained by Sam G~ is invalid. It has not been established that Kittye was
actually or constructively notified of the divorce action. Sam G~ stated that his
reason for establishing residence in Mexico was "as per requirement for divorce;"
he went there only for the purpose of obtaining a divorce without any intention of
residing there as a good-faith domiciliary. Further, the Mexican court did not recite
in its decree that Sam G~ was a resident of Mexico; in fact, the decree recites that
both Sam and Kittye G~ were North Americans and that they were living in Demopolis,
With regard to Sam G~'s subsequent marriage to Patricia S~, it is noted that under
Alabama law, a divorce is presumed by a second marriage. Jackson v. Jackson, 275 So.2d 683, (Ala. 1973). As stated in Hammond v. Stripp, 289 So.2d 802 (Ala. 1974), "The presumption that a prior marriage has been dissolved
should be accepted with caution and must yield so as not to require courts and juries
to presume as true that which is probably false. The presumption of an innocent second
marriage is overcome when circumstances require a reasonable inference to the contrary.
Freed v. Sallade, 245 Ala. 505 (1944); Sloss-Sheffield Steel and; Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166 (1944); Jordan v. Copeland, 272 Ala 336, 131 So.2d 696 (1961)." See, OGC opinion re. Presumption of Validity of First or Last Marriage (Ala.), RA IV
(K~) 5/24/76.. In this claim, the presumption of an innocent second marriage is clearly
rebutted. Sam G~ and Patricia S~ were married in Mexico one day after the issuance
of the (invalid) Mexican divorce decree; it would appear that both parties were well
aware of the prior marriage. Similarly, the presumption that the earlier marriage
was dissolved by divorce is rebutted by the above-discussed facts and law which indicate
that the Mexican divorce was invalid.
Obviously, the Mississippi decree of separate maintenance is not a divorce decree.
As quoted with approval in Howard v. Pike, 275 So.2d 645 (Ala. 1973), "'A woman can have but one lawful husband living, and
so long as he is alive and the marriage bond remains in full force, all her subsequent
marriages, whether meretricious or founded in mistake and at the time supposed to
be lawful, are utterly null and void. Sloss-Sheffield Steel and; Iron Co. v. Watford, supra.; Bell v. Tennessee Coal, Iroin and; R.R. Co., 240 Ala. 422, 199 So. 813 (1941);' Dorsey v. Dorsey, 259 Ala. 220, 66 So.2d 135 (1953)." Inasmuch as we have previously concluded that
the Mexican divorce of Sam G~ and Kitrye was invalid, it therefore follows that Sam
G~ had a living wife at the time of his subsequent marriage to Patricia, and thus
that the marriage of Sam and Patricia, while possibly founded in mistake and supposedly
lawful, was null and void.
In this claim, the question has also been raised as to whether either the equitable
doctrine of estoppel or laches may be applicable here to bar Kitrye G~ from denying
the validity of the Mexican divorce. Notwithstanding the general invalidity of a divorce
decree rendered in a foreign nation where neither spouse was domiciled, a number of
courts have indicated that practical recognition may be accorded such decree by estoppel,
laches, unclean hands, or similar equitable doctrines under which the party attacking
the decree may be effectively barred from securing a judgment of invalidity. See, Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237.
We have found no authority under Alabama law for estopping an individual from attacking
the validity of a divorce where said individual neither sought the divorce or, at
least, consented to it, nor did said individual accept the 'fruits' of the divorce.
In the case of Reiss v. Reiss, 46 Ala. App. 422, 243 So.2d 507 (1970), it was held that the wife who had obtained
the divorce decree, who acquiesced in the decree and separation agreement, and who
accepted the fruits thereof ($130,000) for some ten years, was estopped to have the
divorce decree annulled on the ground that the parties were not residents Of Alabama
at the time the decree was granted. Similarly, the court in Shapiro v. Shapiro, 280 Ala. 115, 190 So.2d 548 (1966), held that the wife was estopped by her conduct
from asserting the invalidity of a divorce decree by accepting more than $66,000 and
other benefits from her husband over a period of almost three years and acquiescing
in the divorce which was procured by the wife's fraudulent representations as to the
husband's residence at the time of the divorce. The court in Levine v. Levine, 262 Ala. 491, 80 So.2d 235 (1955), found that where the wife received $20,000 in
lump sum settlement and admitted allegations concerning residence in the husband's
petition for divorce, she was estopped from asserting that the divorce decree was
void on the ground that the court had no jurisdiction. See ..also, Fairclough v. St. Amand, 217 Ala. 19, 114 So. 471 (1927). Inasmuch as Kitrye neither consented to the divorce
nor did she enjoy the fruits thereof, we conclude she is not now estopped from denying
the validity of the divorce decree.
With regard to laches, the court in Multer v. Multer, 195 So.2d 105 (Ala. 1966), cited to 27 Am. Jur. 2d, Equity § 152, for an adequate
definition, "The doctrine of laches may be defined generally as a rule of equity by
which equitable relief is denied to one who has been guilty of unconscionable delay,
as shown by surrounding facts and circumstances, in seeking that relief. 'Laches'
has been defined as such neglect or omission to assert a right, taken in conjunction
with lapse of time and other circumstances causing prejudice to an adverse party,
as will operate as a bar in equity." The court noted that, "Laches is not fixed by
a hard and fast limit of time but is a principle of good conscience dependent on the
facts of each case." Bailey v. Bailey, 50 Ala. App. 248, 278 So.2d 367 (1973); Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725 (1951). However, in accordance with the general rules
of equity, the mere lapse of time does not constitute laches precluding the seeking
of relief after the remarriage of a party; it must appear that the delay has caused
injury. If, therefore, the second marriage occurred soon after the divorce (here,
one day later) and at a time when the other party to the decree could not have been
expected to seek relief, it may be held that the delay did not cause sufficient injury
to warrant the application of the doctrine of laches. 12 A.L.R. 2d, 162 §§ 5, 6; 24
Am. Jr. 2d, Divorce § 468.
An Alabama court in Lindley v. Lindley, 274 Ala. 570, 150 So.2d 746 (1963) quoted to 12 A.L.R. 2d 155, with approval:
"The consideration given to a second marriage is generally based on the assumption
that innocent parties will be involved in an intolerable situation if the decree is
vacated. But if the second spouse of a divorced person is not innocent, she or he
is not entitled to much consideration in equity. Thus, where the second wife of the
divorced man lived with him in adultery before the divorce, or if she knew or had
notice of the facts justifying the vacation of the decree, she is not entitled to
the consideration when determining whether to vacate the divorce decree. Somewhat
similarly, it is often held that if the second marriage was 'hasty,' that is, if it
occurred shortly after the decree was entered, it is not equitably entitled to much
weight; and it may be noted that in such cases there is frequently room for suspicion
that the second spouse is not an innocent party, or had knowledge of the facts rendering
the decree voidable."
The fact that Patricia and Sam G~ were married in Mexico one day after the divorce
decree tends to indicate in this claim, as in the Lindley case, that the second spouse
was not an innocent party and that she had knowledge of the facts rendering the decree
voidable. Thus, we conclude that laches is not applicable to prevent Kittye from asserting
the invalidity of the divorce decree.
Thus, it is our opinion that, under Alabama law, the 1966 Mexican divorce of Sam and
Kittye G~ is invalid, that the equitable doctrines of estoppel and laches do not apply
to prevent Kittye from asserting the invalidity of said divorce, and that the subsequent
marriage of Sam and Patricia G~ is invalid. We conclude that Kitrye G~ is the legal
wife of Sam G~ within the meaning of 42 U.S.C. § 416(b).