SSR 62-37. RELATIONSHIP -- PRESUMPTION OF THE VALIDITY OF THE LAST MARRIAGE

A worker, H, was married in 1934 and separated from his wife a year

later. In 1943, the wife obtained a divorce in a Mexican court. Neither

she nor H was ever domiciled in Mexico nor did H enter an appearance at

any time during the divorce proceedings. The wife remarried shortly

afterward. H was ceremonially married to the claimant, E, a year later,

and a son was born of this marriage in 1950. H and E lived together until

his death.

Because of the nature of his work, H traveled considerably and is known

to have lived and worked in a number of places in several States and in at

least two foreign countries after he separated from his first wife.

However, because of gaps in the available information, it has not been

possible to determine where H was living during certain periods after the

separation. He died in July 1960, in Iran where he was then working,

although his domicile at that time was Texas. E and the child returned to

Texas, and on June 10, 1961, E filed application on H's earnings record

for mother's insurance benefits for herself, and for child's insurance

benefits for her son. E met all requirements for entitlement to mother's

benefits beginning July 1960, with one possible exception: the requirement

that she must qualify as H's widow under section 216(h)(1).

Under the provision of section 216(h)(1) of the Social Security Act, a

woman is the widow of an insured worker if the courts of the State in

which the worker was domiciled when he died would find either that she was

validly married to him at the time of his death, or that she would have

the same status as a widow for inheriting his personal property if he had

died intestate. (A woman who does not meet either of these requirements

may, under certain conditions not pertinent here, also qualify as the

worker's widow.) H was domiciled in Texas at the time of his death

died would find either that she was

validly married to him at the time of his death, or that she would have

the same status as a widow for inheriting his personal property if he had

died intestate. (A woman who does not meet either of these requirements

may, under certain conditions not pertinent here, also qualify as the

worker's widow.) H was domiciled in Texas at the time of his death.

Therefore, E can qualify as H's widow and be entitled to benefits if the

courts of Texas would find either that H and E were validly married, or

that she would have the same status as a widow of H under Texas intestacy

law.

Since neither H nor his first wife was a domiciliary of Mexico at the

time the divorce was granted, the Texas courts would have the same status

as a widow of H under Texas intestacy law.

Since neither H nor his first wife was a domiciliary of Mexico at the

time the divorce was granted, the Texas courts would hold that the Mexican

divorce was invalid for lack of jurisdiction. However, under Texas law,

there is a strong presumption in favor of the validity of a person's

latest marriage, i.e., a presumption that any prior marriage has been

dissolved. To rebut this presumption, the party attacking the validity of

a second marriage must establish, by at least a preponderance of the

evidence, that the first marriage was not terminated.

The invalid Mexican divorce does not establish this. It tends to show

only that the first wife had not previously secured a divorce; but she

might subsequently have secured a valid divorce, or H might have obtained

one at any time after they separated. Recent and uncontradicted statements

by each of the parties that the marriage had never been terminated could

rebut the presumption of validity of the latest marriage

oes not establish this. It tends to show

only that the first wife had not previously secured a divorce; but she

might subsequently have secured a valid divorce, or H might have obtained

one at any time after they separated. Recent and uncontradicted statements

by each of the parties that the marriage had never been terminated could

rebut the presumption of validity of the latest marriage. Where one or

both parties has dies without making such a statement, the fact that the

decedent (or decedents) did not have the prior marriage judicially

dissolved could be established by other proof, e.g., from evidence that

the court records of jurisdictions in which the decedent (or decedents)

resided contained no entry indicating that the former marriage had been

dissolved.

Such evidence cannot be obtained in the present case, since it has not

been possible to determine where H resided during some periods after he

separated from his first wife. Failure to discover such evidence in any of

the placed where he is known to have lived would not preclude the

possibility that H obtained a divorce or annulment while residing in some

other jurisdiction during one of the periods for which his place of

residence is unknown. E furnished all evidence reasonably available to

her. Under these particular circumstances the strong presumption of the

validity of H's marriage to E has not been rebutted.

It is, therefore, held that, under applicable Texas law, E and H

were validly married when he died. Hence, E is H's widow within the

meaning of section 216(h)(1) and is entitled beginning July 1960 to the

mother's insurance benefits for which she filed application.