The pertinent facts as stated in the file are as follows:
Willie M. S~ (Marcella S~ H~ ) received mother's benefits on the account of James
R. S~ , the deceased wage earner, until June, 1981 when her entitlement was terminated
because of her remarriage. Said remarriage was to Glenn E. H~ in Portsmouth, Ohio.
The marriage was annulled by the Domestic Court of Wayne County (hereinafter "Domestic
Court"), North Carolina on December 17, 1981. Mrs. S~ was reentitled to benefits effective
February 1982 based on an application filed August 17, 1982. The grounds for the annulment
were that the marriage was entered into as a result of fraud. The judgment of annulment
reflects the following pertinent finding of facts.
1. That the plaintiff, Glenn E. H~ , is a citizen and resident of Wayne County, North
Carolina.
2. That the defendant, Willie M. S~, is a citizen and resident of Wayne County, North
Carolina.
4. That after the purported ceremony, the plaintiff and defendant returned to the
State of North Carolina North Carolina is the residence of both parties.
5. That the marriage was never consummated.
6. That the parties separated within a few days after the marriage.
7. That the plaintiff entered into the marriage with the intent to have a loving and
lastin9 marriage relationship.
8. That the defendant entered into the marriage relationship in jest and if not in
jest the defendant did not have any intentions to continue a binding marital relationship
and did not intend to become the wife of the plaintiff.
9. That the defendant exhibited love and affection toward the plaintiff until he went
with her to Ohio and married her. After the marriage she failed to exhibit any affection
toward the plaintiff, and did not consort with him, and aid not appear with him in
public, and did not provide him with a loving home atmosphere and failed to provide
a conjugal relationship.
10. That the defendant entered into a wedding ceremony without any intent on her part
that the ceremony was to have true legal consequence whatever and the marriage of
the defendant was fraudulent and without any legal basis because of her subsequent
action and attitude.
The judgment states that an annulment based on fraud or jest is not a statutory ground
in North Carolina but is recognized under the common law of the State of North Carolina
independent of any statutory authority.
In view of the foregoing, you sought advice as follows:
"Does this mean that the marriage would have been legally nonexistent from the beginning
under North Carolina law even without a judicial decree? If the marriage was void
from the beginning, the date of entitlement to benefits would be retroactive to the
date of the prior determination."
We must look to the findings of facts on the face of the annulment judgment to determine
for Social Security purposes if fraud or jest was the grounds for the annulment of
the subject marriage. The Domestic Court appears to be ambivalent or at least indecisive
as to the grounds for the annulment. There were probably no adverse consequences to
the parties as a result of the domestic court's uncertainty as to the grounds for
its conclusion. However, a determination of either fraud or jest must be made for
the above stated purpose by this office, and that determination must be made based
on the findings of fact on the face of the annulment judgment. The question presented
here is whether in truth a legally valid marriage contract was made according to North
Carolina law.
The facts, we think, show a valid marriage contract was made, albeit with fraudulent
intentions on the part of the claimant.
The facts show that Glen E. H~ and Marcella S~ H~ are both residents and citizens
of North Carolina but that the marriage took place in Portsmouth, Ohio. The marriage
was annulled by the Domestic Court. The general conflicts rule is that the validity
of a marriage is determined by the laws of the state with the most significant relationship
with the man and woman and the marriage.1/ Although the marriage was contracted in
the State of Ohio, we believe that under the facts of the instant case that the North
Carolina courts would hold that North Carolina has the most significant and substantial
relationship with the spouses, and, thus, the marriage. The parties went to Ohio from
North Carolina and were there for about four days. The parties immediately returned
to North Carolina where, as stated above, they were both residents and citizens. Further,
the annulment action was in a North Carolina court. Therefore, North Carolina would
apply its laws in the instant case.2/
The State of North Carolina has no statute specifically concerned with jest, joke
or mock marriage 'and there seems to be no North Carolina precedent on point. As a
general rule, it may be stated that for a marriage contract not to have been made,
Mr. Glen E. H~ and the claimant would have had to enter the marriage without any intention
to bind the marriage, or to assume marital duties and obligations, or to acquire any
of the rights pertaining to the marital status, or to cohabitate.3_/ Such a marriage
has been described as a sham.4_/ If the facts show that Mr. H~ and the claimant entered
the marriage in the spirit of jest or joke, they were never married at all.5_/ A jest,
joke or mock marriage is a void marriage.6_/ However, the facts show otherwise. She
facts show that Mr. H~ ". . . entered into the marriage with the intent to have a
loving and lasting marriage relationship."7_/ We assume that this means that Mr. H~
intended to perform all of his marital duties and recognize all of his obligations
and take the rights of the marital status. But the Claimant's intentions were not
to consummate the marriage or recognize or perform any of the duties or obligations
of the marriage.8_/ Generally, a marriage contracted by persons who are legally competent
according to the statutory law of North Carolina is a valid marriage.9_/ In the instant
case, nothing appears to indicate that either of the parties to the marriage was incapable
of entering marriage, or that either was incapable of consummating the marriage. North
Carolina holds that consummation is not necessary to the validity of a marriage. However,
marriage involves a promise to perform the marital duties and obligations, and where
a marriage is contracted without any intentions of performing those duties, and in
fact, they are not performed, the fraud is such to go to the very essence of the contract,
and the fraud affects the injured party's free consent to such contract. The point
here is that there is a valid marital contract although a fraud was committed. The
subject marriage is a voidable marriage, and in North Carolina, a voidable marriage
is valid for all civil purposes until one of the parties obtain a court order ending
the relationship.10_/
Therefore, it is our opinion that the facts established by the Domestic Court show
that the subject marriage was fraudulent. However, a legally valid marriage contract
was made, and the marriage was otherwise valid until it was annulled by the court.
In respect to your concern for retroactive entitlement, it would appear that whatever
the effect of the judgment in the instant case under state law as between the parties,
it would not provide a basis for reinstatement of benefits, "from the beginning."
The Office of General Counsel has adhered consistently to the doctrine that upon the
annulment of a voidable remarriage by a widow beneficiary, she is not entitled to
benefits for the period between the remarriage and the decree of nullity.11_/ Accordingly,
your office would be warranted in treating the subject marriage as the usual voidable
marriage.
1_/Restatement (Second) Conflicts of Laws § 283 (1971)
2_/ See, Fungaroli v. Fungaroli, 280 S.E. 2d 787 (1981)
3_/52 Am.Jur.2d, Marriage, § 32, p. 890
4_/See, Lutwak v. United States, 73 S.Ct. 481 (l953)
5_/See, United States v. Rubenstein, 2nd Cir., 151 F.2d 915, 918-919 (1945)
6_/See, Note 3, supra.
7_/See, Annulment Judgment, Findings of Facts, Item 7
8_/See, Annulment Judgment, Findings of Facts, Items 7, 8, 9 and 10
9_/See, General Statutes of North Carolina § 51-1
10_/In North Carolina, the Courts have long ruled that while a voidable marriage is
valid for all civil purposes until annulled by a competent tribunal by a direct proceeding,
a void marriage is a nullity and may be impeached at any time. Only bigamous marriages
are absolutely void. All other marriages are voidable. See, Fulton v. Vickery, 326 S.E. 2d 354 (1985); Redfern v. Redfern, 270 S.E. 2d 606 (1980); and Ivery v. Ivery, 129 S.E. 2d 457 (1963). Furthermore, in accordance with the above case law, the
domestic court's findings at item 10 of the annulment judgment, "... the marriage
of the defendant was fraudulent and without any legal basis . . .", seems to be in
conflict with the prevailing North Carolina law.
11_/Barbara H. J~ , ~ , (L~) Region II to Regional Representative, N.E.P.C. - New
York 1/12/76