SSR 62-68. RELATIONSHIP -- MARRIAGE AFTER MEXICAN "MAIL-ORDER" DIVORCE

A worker, A, was entitled to old-age insurance benefits. B filed

application for wife's insurance benefits on A's earnings record in March

1962, the month she attained age 62. A and B went through a marriage

ceremony in New York in December 1932 and have been living together in New

York since that time. A had previously been married but in 1930 had

obtained a Mexican "mail-order" divorce from his first wife, who is still

living. At the time of the divorce both he and his first wife were

domiciled in New York, and neither of them appeared personally in the

action though they were both represented by counsel. No other divorce has

been obtained by either A or his first wife and the latter has not

remarried. B knew about A's previous marriage but believed he had been

validly divorced from his first wife. A's first wife has never claimed

wife's insurance benefits on his earnings record.

The question is whether B qualifies as A's wife under section 216(h)(1)

of the Social Security Act. She met all other requirements for entitlement

to wife's insurance benefits beginning March 1962.

Under section 216(h)(1)(A), a woman is the wife of a worker for purposes

of entitlement to wife's insurance benefits on his earnings record if the

courts of the State in which he is domiciled at the time she filed her

application would find that either (1) the worker and she were validly

married at that time, or (2) she would have the same status as a wife with

respect to a share in the distribution of his personal property if he had

hied intestate.

urposes

of entitlement to wife's insurance benefits on his earnings record if the

courts of the State in which he is domiciled at the time she filed her

application would find that either (1) the worker and she were validly

married at that time, or (2) she would have the same status as a wife with

respect to a share in the distribution of his personal property if he had

hied intestate.

Under section 216(h)(1)(B), enacted in 1960, a claimant who does not meet

the requirements of section 216(h)(1)(A), may nevertheless be deemed to be

validly married to the worker for purposes of wife's insurance benefits

for months after August 1960, under the following conditions: She must in

good faith have gone through a marriage ceremony with the worker not

knowing of an impediment which made the marriage invalid; the impediment

must have resulted from the continued existence of a prior marriage of

either party, have arisen out of the dissolution of the prior marriage, or

have resulted from a defect in the procedure followed in connection with

her ceremonial marriage to the worker; she must be living in the same

household with the worker when her application is filed; and no other

woman who meets the requirements of section 216(h)(1)(A) is or has been

entitled to wife's insurance benefits on the worker's earnings record.

Under New York law, A's Mexican "mail-order" divorce would be considered

a nullity. Caldwell v. Caldwell , 298 N.Y. 146, 81 N.E. 2d 60

he worker; she must be living in the same

household with the worker when her application is filed; and no other

woman who meets the requirements of section 216(h)(1)(A) is or has been

entitled to wife's insurance benefits on the worker's earnings record.

Under New York law, A's Mexican "mail-order" divorce would be considered

a nullity. Caldwell v. Caldwell , 298 N.Y. 146, 81 N.E. 2d 60

(1948). Thus, in that State (which was the State of his domicile at the

time B file application for wife's benefits) he would be considered to be

still married to his first wife, and accordingly his marriage to B would

be considered absolutely void there. Magner v. Hobby , 215

F.2d 190 (2d Cir. 1954), B, therefore, would not qualify as A's wife under

either test of section 216(h)(1)(A), described above.

However, since no one who meets the requirements of section 216(h)(1)(A)

is or has been entitled to wife's insurance benefits on A's earnings

record, B can qualify as his wife under section 216(h)(1)(B). She went

through a marriage ceremony with A, believing in good faith that A's

previous marriage had been dissolved by a valid divorce; their marriage

was invalid because of an impediment arising from the lack of dissolution

of A's previous marriage; and she was living in the same household with A

when she filed her application for benefits.

Accordingly, it is held that B qualifies as A's wife under section

216(h)(1)(B) of the Act. Therefore, she is entitled to wife's insurance

benefits beginning March 1962.