PR 05405.039 Ohio
A. PR 09-168 Request for Regional Chief Counsel Opinion on State Law Recognition of Moorish A~ Marriages
DATE: September 4, 2009
A Moorish A~ Affidavit of Marriage/Domestic Partnership document would be recognized as a valid marriage document only if the participants also obtained a marriage license from the State in which the marriage took place, and the marriage was properly solemnized under State law. If the applicants and the celebrant do not acquire the appropriate licenses, Ohio would not recognize the Affidavit as a marriage document. Ohio does not recognize domestic partnership as an alternative to marriage.
You asked whether Ohio would recognize a Moorish A~ Affidavit of Marriage/Domestic Partnership as a marriage record. You also asked whether the other states in Region V would recognize a similar document as a marriage record. We conclude that the states in Region V would recognize the Moorish A~ Affidavit as a record of a valid marriage as long as the participants also obtained a marriage license from the state. Given the confusion and blurring between the religious and the pseudo-governmental aspects of Moorish Science, we recommend that SSA request evidence of a marriage license whenever an individual is relying on a Moorish document as a marriage record. In the particular case you submitted for our review, it appears that a marriage license was not obtained for the Moorish marriage ceremony, and therefore the Affidavit should not be considered a marriage document for purposes of a name change.
On February 6, 2004, Reginald R. B~ signed a Certificate of Religious Creed (Certificate) with the Moorish Science Temple of America (MSTA), stating that he was joining the MSTA and thereby “gained Free Nationality and Birthrights as a Moorish-A~.” The Certificate also stated that Mr. B~ was taking the name Bandele A. Y~-E~ as his “religious name by birthright.” Mr. Y~-E~ apparently registered the Certificate with the Montgomery County (Ohio) Recorder of Deeds, and subsequently obtained an Ohio driver’s license under the name Bandele A. Y~-E~. He also obtained a name change on his Social Security record reflecting this new name in 2004.
Mr. Y~-E~ and Karen D. B~ (applicants) signed a certificate stating that they “agree[d] to be married as husband and wife” on May 28, 2009. Evidence of the marriage consists of a pre-printed certificate entitled “Moorish A~ Affidavit of Marriage/Domestic Partnership” (Affidavit). The Affidavit is subtitled “New Kemit, Montgomery County, Al M~ (America): Ohio.” The rest of the Affidavit is divided into two parts. The first part consists of a list of eight assertions. A preamble states that the participants have reached the age of majority, and have been “duly cautioned and affirmed.” In the preamble, the applicants’ pre-marriage names are listed as Bandele A~ Y~ E~ and Karen D. B~. The assertions include statements that the applicants (1) share a permanent residence; (2) are “Moorish A~ Free Nationals”; (3) are “domiciled in the united states of America (Al M~), Republic, Moorish Republic New Kemit; Montgomery County, Ohio;” (4) agree to be married “as husband and wife as given by the Moorish A~ National Sovereigns 1928;” (5) are not related; (6) know of no circumstances that would prevent the marriage “from being recognized under Moorish, U.S. Constitutional and Common laws; (7) take the “Moorish Free National” names of Bandele Y~ E~-A. and Karen D. B~ E~-A. as husband and wife; and (8) certify under penalty of perjury “under laws of the United States and Moorish Republic” that the Affidavit is correct.
The second half of the Affidavit consists of blanks for signatures, including that of the husband, the wife, two witnesses, a notary public, the “Person Solemnizing or performing Marriage,” and an “Authorized Moorish Official.” The applicants signed the spouses’ signature lines as Bandele Y. E~-A. and Karen D. B~ E~-A. The Affidavit was also signed by two witnesses, and bears the signature and seal of a Notary Public for the state of Ohio. The notary dated the document May 28, 2009. The person solemnizing the affidavit gave his title as “Grand Governor.” The Affidavit was apparently filed with the Montgomery County Recorder of Deeds. The Affidavit mentions the “Moorish Republic;” “Moorish A~ Free Nationals;” “Moorish Free National;” and “Moorish A~ National Sovereigns.” It contains no reference to the Moorish Science Temple of America.
We also conducted a search of the records of the Montgomery County (Ohio) Probate Court, which show that a marriage license was issued in 2009 for Bandele A~ Y~-E~ and Karen D. B~ (License No. 200900001220). However, the Montgomery Probate Court records state that the couple was married not on May 28, 2009 by an MSTA officiant, but on June 6, 2009, by Pastor Brodie R. M~. See http://www.mcohio.org/probate/ (Case Search; Marriage License). According to records of the Ohio Secretary of State, Brodie R. M~ is a pastor of the Zion Baptist Church in Dayton, Ohio. See http://www.sos.state.oh.us/SOS/ (Other Records, Search Licensed Ministers).
In June 2009, each of the applicants requested a change of name with the local district office in Ohio. Mr. Y~-E~ sought to change his name to Bandele Y~ E~-A.; Ms. B~ sought to change her name to Karen D. B~ El-A. The applicants submitted the Affidavit as evidence for the change of name. They also submitted Ohio driver’s licenses in their old names.
I. Documentary Evidence for SSN Card Based on Change of Name.
SSA requires an applicant for a Social Security Number (SSN) card to provide documentary proof of his/her identity, so that SSA can ascertain that the person is who he/she claims to be, and that he/she is the person to whom SSA originally assigned the SSN. POMS RM 00203.200(A), (C)(2). Following passage of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. 108-458, SSA developed standards to verify documents or records submitted by applicants to establish eligibility for original or replacement SSN cards. These standards took the form of priority lists of documents that are considered acceptable evidence of identity. POMS RM 00203.200(B). The priority is based on (1) the applicant’s age; (2) the applicant’s citizenship or alien status; and (3) the relative probative value of the documents. POMS RM 00203.200(B)(1). Applicants are required to submit the document with the highest probative value that is reasonably available. POMS RM 00203.200(B)(2). “Available” means that the document exists and the applicant can obtain or gain access to it within 10 business days. POMS RM 00203.200(E)(6)(3). For United States citizens aged 18 or older, an unexpired driver’s license, non-driver identity card, or passport is considered primary evidence of identity. POMS RM 00203.200(E)(6)(1).
When a number holder (NH) applies for a replacement SSN card to reflect a name change, the NH must submit at least one name change document that identifies him/her by both old and new name. POMS RM 00203.210(A)(1). The name change document must also show either an identifiable description or photograph of the person, or biographical data such as the age, date of birth, or parents’ names that can be compared with data that SSA already has about the NH. POMS RM 00203.210((A)(1). Generally, when the name change document lacks a photograph, description or biographical data, the NH must submit two additional identity documents listed in RM 00203.200(E), one with the old name, the other with the new name. POMS RM 00203.210((A)(1).
A marriage document is generally acceptable secondary evidence of identity for a legal name change if the document shows not only the applicant’s name, but also has either a photograph or biographical information such as his or her age, date of birth, or parents’ names, as long as the biographical information matches the data on the applicant’s latest record, and the marriage took place within the last two years. POMS RM 00203.200(E)(6)(2), (H)(2); POMS RM 00203.210((B)(1); POMS EM-06064(A)(1)-(3). If the marriage document does not meet these criteria, the marriage document may serve as evidence of the new name, but the applicant must also submit an identity document in the old name. POMS EM-06064(A)(3). The identity document in the old name must be acceptable under the priority lists in POMS RM 00203.200(E). See POMS EM-06064(A)(3). A driver’s license is considered primary evidence of identity. POMS RM 00203.200(E)(6)(1).
SSA recognizes that some states permit a married couple to take an entirely new surname. POMS RM 00203.210((B)(1)(d). When the new surname can be derived from the marriage document, the marriage document alone can be taken as evidence of identity for both the old and new names. POMS RM 00302.210(B)(1)(d), POMS EM-06064(A)(2). When the new name cannot be derived from the marriage document, the marriage document can be accepted as evidence of the event for the name change, and may be accepted as evidence of the old name if the document also includes appropriate biographical data, but cannot be accepted as evidence of identity for the new last name. POMS RM 00203.210((B)(1)(d), POMS EM-06064(A)(2). The applicants must submit an additional identity document showing the new last name. POMS RM 00203.210((B)(1)(d), POMS EM-06064(A)(2).
For all documents, SSA policy is that a document should be verified with the issuing agency if there is any reason to suspect that the document is questionable. POMS RM 00203.050.
Any document “issued by a fictitious governmental organization or a private organization that purport (sic) to be governmental organizations” is considered questionable. POMS RM 00203.200(F)(2)(c). The POMS expressly lists the Moorish Consulate and Moorish National Bureau of Vital Statistics as examples of entities purporting to be governmental organizations whose identity documents are considered questionable. POMS RM 00203.200(F)(2)(c). Such documents are not individually acceptable as identity documents, but are considered potentially useful to support secondary or approved third-level documentary evidence. POMS RM 00203.200(F)(2)(c) (NOTE).
However, while the Moorish Republic may be a fictitious government, federal courts have recognized that Moorish Science and the MSTA is “a bona fide religion.” Johnson-Bey v. Lane, 863 F.2d 1308, 1309 (7th Cir. 1988). The Seventh Circuit has recognized that some adherents of Moorish Science espouse the belief that, as Moorish nationals, they are not bound by the laws of the United States unless those laws are expressly mentioned in a 1784 treaty between the United States and M~co. United States v. James, 328 F.3d 953, 954 (7th Cir. 2003); see also www.moorishrepublic.com/Nationalitylaws.htm. The court also observed that, under some Moorish Science religious beliefs, “any adherent may adopt any title, and issue any documents, he pleases.” Id. Ohio has apparently licensed some Moorish ministers to perform marriages in the state. See http://www.sos.state.oh.us/SOS/recordsindexes.aspx.
II. Ohio Would Recognize the Moorish A~ Affidavit Only If the Marriage Was Properly Solemnized under Ohio Law. Under the POMS, a marriage document is acceptable secondary evidence to support a change of name on an NH’s SSN card. POMS RM 00203.200(E)(6)(1); POMS RM 00203.210((B)(1); POMS EM-06064(A)(1)-(3). An identity document issued by a fictitious governmental organization is not. POMS RM 00203.200(F)(2)(c). A document like the Moorish A~ Affidavit at issue in this case creates tension between these provisions, because while SSA may properly recognize groups such as the “Moorish Consulate” or “Moorish Republic” as fictitious governmental organizations that federal law does not recognize, federal law does recognize Moorish Science as a real religion, not a fictitious one, and SSA must treat it and respect it as such. Distinguishing between a Moorish group’s religious and pseudo-governmental aspects is complicated because the group itself may not recognize any distinction between the two. (For example, the Moorish Divine National Movement of the MSTA considers itself both a “Jural Society” and a “Religious Society.” See www.motheriscalling.com/THEMOVEMENT.html.)
In the case at issue here, the applicants sought replacement SSN cards, with both of them taking on an entirely new surname. It appears that Ohio would permit couples to assume an entirely new surname when they marry. See POMS PR 05005.039 (citing In re Bichnell, 771 N.E.2d 846, 848 (Ohio 2002).
In support of their applications to change to this new name, the couple in this case submitted the Moorish A~ Affidavit, which contains both applicants’ old and new names, but not the type of biographical data described in the POMS (i.e., age, date of birth, or parents’ names, which could be compared to the Numident record). See POMS RM 00203.200(E)(6)(2), (H)(2)(a). When the name change document does not include such biographical data, the applicant may submit an identity document with the old name in addition to the marriage document, and in such cases the marriage document will be considered the identity document for the new name, and the identity document for the old name will link the applicant to the old name on the Numident. EM 06064(A)(3). Here, the applicants also submitted Ohio driver’s licenses as evidence of their old names, so the lack of biographical information that would link them to the pre-marital name is satisfied.
It is not as clear whether the marriage document (assuming it qualifies as a marriage document) would be sufficient evidence of the new name requested, since the parties are requesting an entirely new surname. Agency policy suggests that a marriage document is generally not sufficient evidence of a name change if the parties are seeking an entirely new name that is not derived from the document. See EM 06064(A)(2) & attached table. A name is generally considered to be derived from the document if one spouse is taking the other spouse’s last name, or a compound name of each spouse’s original name is being adopted by one or both parties. Id. However, this policy is apparently based on the assumption that the marriage document would not otherwise reflect the new name, if the name is not derived from the parties’ premarital names. See EM 06064(A)(2) (assuming that entirely new name would not be shown on the marriage document); POMS RM 00203.210((D)(5) (explaining that marriage document would not generally support a name change to an entirely new name because the document “does not show the newly chosen surname”). Here, however, the document shows both the parties’ old names and the new surname that they intend to use. Therefore, if the Moorish A~ Affidavit qualifies as a marriage document from a ceremonial United States marriage, the applicants have arguably submitted sufficient documents to show identity. However, if the Affidavit does not qualify as a marriage document, it may be used to support other evidence of a name change, but is not acceptable by itself.
The Moorish A~ Affidavit has several indicia of a ceremonial marriage document. The fourth affirmation states that the parties “mutually consent and agree to be married as husband and wife.” The sixth affirmation also refers to “our marriage,” and the seventh affirmation identifies the applicants, under their new surname, as “husband and wife.” The applicants signed the Affidavit in the blanks for “husband’s signature” and “wife’s signature.” The Affidavit has a signature line for the “person solemnizing or performing Marriage.” That person gives his title as “Grand Governor,” which is a common title for the leader of an MSTA temple.
Other aspects of the Moorish A~ Affidavit are more ambiguous. Despite references to marriage on the Affidavit, the title suggests that the certificate could serve either as a marriage document or as a domestic partnership document. Ohio does not recognize domestic partnership as an alternative to marriage. Ohio Const. § 11, Art. XV. In addition, the Affidavit makes several references to Moorish National status, Moorish law, and the Moorish Republic. However, unlike the MSTA Certificate of Religious Creed that applicant Y~-E~ signed in 2004, the Affidavit contains no mention of the MSTA, or any other overtly religious group or society. The person who signed the Affidavit as the “person solemnizing or performing marriage” with the title “Grand Governor” signed the Certificate of Religious Creed as “Grand Elder in Islam.” Although “Grand Governor” is a common title for the leader of an MSTA temple, it is unclear whether the MSTA would recognize him as having governmental – or, from SSA’s point of view, pseudo-governmental – authority, as opposed to clerical or religious authority.
The Affidavit meets all of Ohio’s requirements for witnessing. In addition, because Ohio recognizes the MSTA as an Islamic sect, see Abdullah v. Fard, 974 F. Supp. 1112, 1114 (N.D. Ohio 1997), the Ohio Secretary of State would have to give a recognized MSTA temple leader a license to solemnize marriages if he presented the appropriate credentials. It appears that the Affidavit was filed with the Montgomery County Recorder of Deeds, which Ohio requires from the person who officiated over the marriage. Thus, Ohio would recognize the Moorish A~ Affidavit as a marriage document as long as the applicants obtained a marriage license, and the person who solemnized the marriage had a license to do so. If the applicants and the celebrant did not acquire the appropriate licenses, Ohio would not recognize the Affidavit as a marriage document. In this case, our search of Ohio public records indicated that the person who signed the Affidavit as the “person solemnizing or performing marriage” apparently did not have a license to solemnize marriages. See http://www.sos.state.oh.us/SOS/recordsindexes.aspx. In addition, while our search suggested that the applicants obtained a marriage license, the license was not used for a marriage by the MSTA. Rather, the Ohio records indicate that the license was used for a marriage in a Baptist church several days after the date on the Affidavit, and the marriage license was filed by a licensed Baptist minister. Therefore, we believe that under the facts of this case, Ohio would not recognize the Affidavit as a marriage document.
Ordinarily, under the procedures set forth in the POMS for changing Numident name data, SSA does not investigate ceremonial marriage documents to assess the validity of the marriage. However, given the well-documented history of Moorish groups acting in both a bone fide religious and a pseudo-governmental capacity, Moorish documents like the Affidavit in this case may be considered sufficiently ambiguous that it would seem reasonable for SSA to request that a marriage license also be provided, to ensure that the document relates to a state-recognized marriage, and is not merely a document issued under the authority of the Moorish pseudo-government. See POMS RM 00203.050.
SSA may wish to modify the procedures governing acceptable evidence so that where a marriage document appears questionable, the person processing the enumeration may ask the applicant if he or she obtained the requisite state marriage license. In some cases, as in Ohio, it may be easy to verify whether an applicant obtained a marriage license, or whether the person who celebrated the marriage was appropriately licensed. However, given the variety of Moorish groups, it seems likely that SSA will have to assess documents purporting to be Moorish or MSTA marriage records on a case-by-case basis. It is possible that some Moorish temples may employ a certificate where it is clear from its face that it constitutes an acceptable ceremonial marriage document. Other documents may be ambiguous, like the Affidavit, or clearly unacceptable.
III. Other States in Region V Would Also Consider Moorish Documents to Be Marriage Documents Only If the Parties Obtained a License for the Marriage.
The same tension between the religious and pseudo-governmental aspects of Moorish Science that applies in Ohio also applies in Illinois, Indiana, Michigan, Minnesota and Wisconsin. Each state requires couples to obtain a marriage license, and requires that the license be filed with the appropriate state official after the marriage. See 750 ILCS 5/201, 5/203 5/209; Ind. Code 31-11-4-1, 31-11-4-3, 31-11-4-13, -16; Mich. Comp. Laws §§ 551.2, 551.101, 551.104, 551.107; Minn. Stat. Ann §§ 517.01, 517.07; Wisc. Stat. §§ 765.05, 765.12, 765.19, 765.20(1). It seems likely that all of the states in Region V would accept a document like the Affidavit as evidence of a valid marriage as long as the marriage was properly licensed, solemnized and registered. As noted above, given the difficulty in determining whether a Moorish marriage document may have been issued as part of a religious ceremony with a proper marriage license issued by the state, or whether the document was issued pursuant to pseudo-governmental authority, it would seem reasonable for SSA to request a marriage license in the case of Moorish marriages to determine whether the state recognizes the marriage.
In sum, we conclude that in all states in Region V, a Moorish marriage document like the Affidavit in this case would be recognized as a valid marriage document only if the participants also obtained a marriage license from the state in which the marriage took place, and the marriage was properly solemnized in accordance with state law. Since it is generally unclear from the face of such a document whether it is a ceremonial marriage record of a licensed marriage, we recommend that SSA request a marriage license to determine whether the document can be considered a marriage document for purposes of a name change. In this case, our research suggests that the document was not issued in conjunction with a marriage license, and would not constitute a marriage document for purposes of the name change request. However, we recommend that you verify this for the record.
Donna L. C~
Acting Chief Counsel, Region V
Julie L. B~
Assistant Regional Counsel
B. PR 04-102 Validity of Proxy Marriage
DATE: September 8, 1987
Because the claimant's proxy marriage to the NH appears to comport with the 1945 statutory requirements of Oklahoma, and because it offends no public policy of Iowa (the resident State at the time of the marriage) or Ohio (the State in which the NH died domiciled), the marriage must be considered valid. Even if the formal proxy marriage would not be upheld, the couple would be considered to have had an informal common-law marriage.
This memorandum is in response to your request for our legal opinion as to whether the 1945 proxy marriage between Wendell C. T~, the now-deceased wage-earner (DWE), and Adyline L. C~ T~ would be considered valid. The information accompanying your request indicates that the parties, by and through their respective proxies, obtained in Oklahoma marriage license, and delivered a duplicate contract of marriage in the presence of witnesses and before Honorable James P. M~, Judge of the County Court of Tulsa County, Oklahoma on March 9, 1945. Neither Wendell nor Adyline was present in Oklahoma at the time the marriage was solemnized; instead each was represented by a proxy because Adyline resided in Iowa, and Wendell, a U.S. Army Officer, was stationed in Europe. For reasons that will be discussed more fully below, we conclude that under the relevant law, this marriage would be considered valid.
Although proxy marriage is considered to be unusual in contemporary American society, it is not unknown. Proxy marriage has been defined as an attempt to comply with the statutory formalities of marriage. The single distinguishing feature is that one or both of the parties is absent and is represented by an agent or proxy who has the authority to act on behalf of his/her principle in the marriage ceremony. 52 Am Jur. 2d MARRIAGE 13. During times of war, as was the case here, this type of marriage proved useful to men who were away in the service when they could not contract a valid marriage in any other way. Note, The Validity of Absentee Marriages of Servicemen, 55 YALE L.J. 735 (1946). Indeed, during World War II Minnesota enacted a statute expressly authorizing proxy marriages upon proof that the woman was pregnant. MINN. STAT. ANN. sec. 517.09. Although proxy marriages are still only recognized by many churches, the Roman Catholic Church, in Canons 1089 and 1091, expressly provides for solemnization of marriage by proxy where the proxy is authorized by the absentee. Whether such a marriage will be considered valid in American law, however, depends upon whether the state where one of the parties resides permits such marriages to be performed within its jurisdiction or, if not, whether the resident state will recognize such a marriage if performed in a jurisdiction where it is allowed, even if not permissible in the resident state. Therefore, the threshold question in this case is whether Iowa, the resident state of Adyline at the time of the proxy marriage, would either permit proxy marriage or recognize such a marriage performed elsewhere.
We found no Iowa cases which discuss the legality of proxy or absentee marriage in that jurisdiction. Indeed, there is remarkably little case authority on the validity of proxy marriages contracted anywhere in the United States. Several law review articles have been written on the subject, however. With respect to Iowa, one commentator wrote that the validity of proxy marriage had not been tested in Iowa, but found it significant that nothing in the Iowa statues [of that time or earlier] would militate against proxy marriage by requiring the presence of the marriage partners at the ceremony. 1 DRAKE L.REV. 43, 44 (1952). Another commentator noted that nine states honor proxy marriages formed within their borders: Florida, Idaho, Iowa, Kentucky, Montana, Nebraska, Oklahoma, Nevada, and New Mexico. M~, Case for Marriage by Proxy, 11 CLEVELAND-MARSHALL L.REV.313, 318 ( ).
It is also noteworthy that no state has failed to recognized a proxy marriage contracted in a jurisdiction which permits this form of marriage. See e.g. Barrons v. United States, 191 F.2d 92 (9th Cir. 1951) (all states which have passed on the question have recognized the validity of proxy marriages validly performed elsewhere). But see: Respole v. Respole, 70 N.E.2d 465 (Ohio Com. Pl. 1946) in which the court held the proxy marriage invalid because it was never consummated. One commentator wrote that "probably the greatest single factor compelling the use of proxy marriage is that of legitimizing children." 25 S. CAL. L. REV. 181 (1951).
Consequently in light of these interpretations of Iowa law by legal writers of the period, it is reasonable to assume that it may have been possible to contract a proxy marriage in Iowa. If that is so, then it follows that Iowa clearly would recognize a proxy marriage validly performed elsewhere. Since the marriage in question was performed in Oklahoma, it is necessary to examine Oklahoma law to determine whether there was any obstacle to solemnization of a proxy marriage in that state.
Proxy marriages were contracted frequently in Oklahoma during World War II although the statutes of the state did not specifically provide for such marriage. H~, Marriage By Proxy and Other Informal Marriages, 13 U. KAN. CITY L. REV. 48 (1944). In that article, the commentator noted that the National Association of Legal Aid Committees named Oklahoma as the only state in the nation where a marriage could be legally performed without either the bride or groom being present. Id. at p. 92. According to H~, there were no apparent objections of a practical nature which would militate against statutory marriages by proxy in Oklahoma, because "such marriages have taken place with more frequency in this state than in any other jurisdiction, with the possible exception of the state of Kansas". Id.
As H~ correctly observed, marriage in Oklahoma is based upon a contract, the two parties being married from the time they agree to be married regardless of whether or not they ever live together. Id. See also: Tice v. Tice, 672 P.2d 1168, 1171 (Okla. 1983).
Under Oklahoma law, marriage is defined as:
[A] personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary, and the marriage relation shall only be entered into, maintained, or abrogated as provided by law.
OKLA. STAT. ANN. tit. 43, §1.
At the time of the marriage in question, Oklahoma permitted a marriage license to issue on the affidavit of any responsible person with knowledge of the parties. OKLA. STAT. ANN. tit. 43, §5 (1945). There was no statutory requirement of the parties' presence; and prior to 1945, no health certificate was required. OKLA. STAT. ANN. tit. 43, §31 et seq. Although a health certificate was necessary after 1945, the requirement could be waived by a judge of a County Court under certain circumstances. OKLA. STAT. ANN. tit. 43, §32. (1945).
The application for marriage license signed by Norma W~, who was proxy and attorney-in-fact for Adyline, is in the material you sent for our review. On its face it appears to meet the requisites of Oklahoma law. The marriage license, also in the file, authorized the marriage of Wendell C. T~ and Adyline L.C~. Finally, as discussed previously, the Certificate of Marriage, which is signed by James P. M~, Judge of the County Court of Tulsa, and which bears the official State seal, attests that Wendell, by James B. D~ s, Jr., his proxy and attorney-in-fact, and Adyline, by Norma M~, her proxy and attorney-in-fact, executed, acknowledged, and delivered a written contract of marriage, in his presence. In our view, this attestation of the judge is the same as a judgment which is valid on its face, and which could have been collaterally attacked only in the manner provided by law. Fowler v. Goldfeder, 418 P.2d 317 (Okla. 1966). Hence, it appears that the proxy marriage met the statutory requisites of Oklahoma in 1945.
It is important to note, however that even if the marriage did not meet the statutory requisites, it would be considered only voidable, not void. _/1 See e.g., Respole v. Respole, supra. In that case, the husband brought suit against the wife to annul a marriage performed in West Virginia in 1943 while the husband was in India. The court held the marriage invalid because the wife would not live with the husband upon his return to the United States; in face the marriage was never consummated. The court said that then result would have been different if the marriage had been consummated since then it would have been recognized as a common law marriage in Ohio, the residence of the husband.
In a New York case, Ferraro v. Ferraro, 77 N.Y.S. 2d 246 (1948), the court held valid a proxy marriage, solemnized in Washington, D.C. In that case, as in the case under review here, the statutes were silent regarding proxy marriage. The court reasoned that since the license was validly obtained and a ceremonial marriage is presumed to be valid, unless the presumption is overcome, the Ferraro marriage would be considered valid under the law of the place of celebration and therefore valid elsewhere.
In our view the same rationale should be applied to the T~ marriage. As earlier discussed, the license appears to have been legally obtained, the contract was duly entered into by and through authorized agents, and the marriage was certified by a judge. As in most jurisdictions, Oklahoma law presumes that a ceremonial marriage is valid. Hale v. Hale, 135 P. 1143 (Okla. 1913). This presumption is one of the strongest in law, and is grounded in public policy favoring morality, marriage and legitimacy. The presumption increases in strength with time, recognition, and acknowledgment of the marriage by others, and with the birth of children. Marcum v. Zaring, 405 P.2d 970 (Okla. 1965)
Finally, it should be noted that both Iowa, the domicile of Wendell and Adyline at the time the proxy marriage was celebrated, and Ohio, their domicile at the time of his death, recognize common law marriage. Thus, in our opinion, even if, for some procedural irregularity, the formal proxy marriage would not be considered valid, it is clear that Wendell and Adyline would be considered married at common law since the requisites of an informal common law marriage were met: they intended to be married, they held themselves out as married, and they cohabitated as husband and wife for thirty years.
In summary, because the T~ proxy marriage appears to comport with the 1945 statutory requirements of Oklahoma, and because it offends no public policy of Iowa, the resident state at the time of the marriage, or Ohio, the state in which the wage earner died domiciled, we believed the marriage must be considered valid. Even if the formal proxy marriage would not be upheld, however, it is our view that the couple would be considered to have had an informal common law marriage of long standing. Therefore, in our opinion, Adyline, L. C~ T~ is entitled to widow's benefits on Wendell's wage record.
/s/ Charlene M. S~
Assistant Regional Counsel
_/1 A voidable marriage, the imperfection of which can only be inquired into during the lives of both of the parties, is valid for all civil purposes until annulled in a direct proceeding. A void marriage is a nullity and may be impeached at any time.