Your office has requested our advice in the following factual situation. Martha S~
married Seymour B~ in 1943. Seymour B~ obtained a divorce from Martha in Chihuahua,
Mexico, on February 24, 1960. He appeared personally in that action; she did not appear
at all. Martha married Michael E~ in North Carolina on September 30, 1971.
On January 12, 1972, Martha appeared, through an attorney, in the Mexican divorce
action commenced by Semour B~ You have stated that under New York law this belated
appearance qualified the Mexican divorce for recognition as of January 12, 1972. Martha
S~ was divorced from Michael E~ in New York on November 29, 1983. On October 7, 1982,
Martha applied for wife's insurance benefits on Seymour B~ account. Seymour was a
resident of Kentucky at the time. Your specific question is what period of time Martha
was married to Michael E~ under Kentucky law.
We initially note that under Kentucky law, where a marriage is invalid in the state
where it was performed because of the prior marriage of one of the parties, it is
invalid in Kentucky. See Fields v. Com, 192 S.W. 2nd 478 (1946). Consequently, the pertinent inquiry is whether North Carolina
recognized the marriage between Michael E~ and Martha S~. In North Carolina a void
marriage is a nullity and may be impeached at any time. Geitner v. Tawnsend, 312 $.E. 2d 236 (N.C. 1983) and bigamous marriages have been declared absolutely
void. Fulton v. Vickery, 326 $.E. 2d 354 (N.C. 1985). According to your memorandum, the divorce of Martha
and Seymour was not recognized until January 12, 1972, almost four months after the
marriage ceremony. Therefore, Martha S~ certainly lacked the legal capacity to enter
into a marital relationship with another individual prior to that date. Moreover,
North Carolina courts have historically failed to recognize foreign ex parte divorces,
see In re Gibson, 23 S.E. 2d 50 (N.C. 1943); see also Mayer v. Mayer, 311 S.E. 2d 659 (N.C. 1984). The question of whether North Carolina would even recognize
the late appearance of Martha S~ in the Mexican Court could not be definitively answered
in the cases reviewed or North Carolina statutes. Moreover, there is no evidence provided
to show that Martha S~ and Michael E~ ever lived in North Carolina.
It is our opinion, however, that the North Carolina courts would not recognize the
validity of the Mexican divorce in 1960 and would find that the marriage between Martha
S~ and Michael E~ was bigamous and void. The subsequent appearance in Mexican Court
is of little relevance in that we could not establish a common law marriage based
on marital consent and continued habitation as of January 1972. North Carolina does
not recognize common-law marriage or marriage by consent. See State v. Lynch, 272 S.E. 2d 349 (N.C. 1980). 1/ Martha S~ was never the legal wife of Michael E~
under North Carolina law and Kentucky would also not recognize this marriage.
1_/ See also State v. Alford, 259 S.E.2d 242 (1979).