SSR 63-49: SECTION 216(h)(1)(B). -- RELATIONSHIP -- DE FACTO MARRIAGE RESULTING FROM JAPANESE "CUSTOM MARRIAGE"
20 CFR 404.1101(c)(2) and (3)
- A woman filed application for widow's insurance benefits on the earnings record of a deceases worker. She and the worker were married by Japanese custom on November 2, 1915, in Hawaii; however, they did not secure a marriage license as required by Hawaiian law. They lived together as man and wife continuously until the worker did in 1938, not knowing that their marriage was in any way affected by their failure to secure a marriage license. Held, under section 216(h)(1)(B), the claimant qualifies as the widow of the worker for purposes of becoming entitled to widow's insurance benefits on his earnings record.
B, a fully insured worker, died on September 16, 1938, domiciled in Hawaii. On June 4, 1961, the claimant, W, who attained age 62 in that month, filed application for widow's insurance benefits on B's earnings record.
B and W, who were of Japanese descent, were married by Japanese custom on November 2, 1915, in Hawaii. They did not secure a marriage license not knowing that a license was necessary. Both B and W believed that they were validly married and they lived together, in Hawaii, as man and wife from November 2, 1915, until B's death.
The issue is whether W is entitled to widow's insurance benefits on B's earnings record. This depends upon whether she qualifies as his widow under section 216(h)(1) of the Social Security Act, since she meets all the other requirements for entitlement.
Under section 216(h)(1)(A) of the Act, a woman is the widow of a worker for purposes of widow's insurance benefits if the courts of the State in which he was domiciled at the time of his death would find either, (1) that the worker and she were validly married at that time, or (2) that she would have the same status as a widow for purposes of sharing in the distribution of his intestate personal property.
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 have been validly married to the worker for purposes of entitlement to widow'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 have been living in the same household with the worker at the time of his death; and at the time she files application there is no legal widow who is or was entitled to benefits on the worker's earnings record who still has status as a legal widow.
Section 2905 of the Revised Laws of Hawaii, 1915, in effect at the time of the marriage of B and W, provides in pertinent part:
- * * * it shall in no case be lawful for any persons to marry in this Territory without a license for that purpose duly obtained from the agent duly appointed to grant licenses to marry in the judicial district in which the marriage is to be celebrated.
Section 8 of the Civil Code of Hawaii, 1859, also in effect at the time of W's marriage to B, provides:
- Whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed.
The Supreme Court of the Territory of Hawaii in Parke v. Parke, 25 Hawaii 397 (1920), held that these two statutes must be considered in pari materia, that the requirement of a marriage license is mandatory, and that a marriage contracted without such license is void.
The courts of Hawaii would hold W's marriage to B void. W therefore does not meet the requirements of section 216(h)(1)(A) for becoming entitled to widow's insurance benefits. It remains to be determined whether W qualifies for widow's insurance benefits on B's earnings record under section 216(h)(1)(B) of the Act. This depends upon whether the Japanese custom marriage which she and B entered into may be considered a "ceremonial" marriage within the meaning of that section.
Japanese custom marriages are generally celebrated by having a gathering of the parties to the marriage and their relatives at the bride's house, the parties' drinking sake from the same cup, and speech making by both families. This constitutes a marriage "ceremony" within the meaning of section 216(h)91)B). The failure of B and W to obtain a marriage license for such marriage "ceremony" is "a defect in the procedure followed in connection with such * * * marriage" within the purview of section 216(h)(1)(B) of the Act.
Accordingly, it is held that W may qualify as B's widow under section 216(h)91)(B) of the Act since she went through a marriage ceremony with B in good faith not knowing of an impediment which made the marriage invalid; she was living in the same household with B when he died; the impediment to their marriage resulted from a defect in the procedure followed in connection with her marriage to B; and B was not survived by a legal widow. Since all other requirements for entitlement were met, W is entitled to widow's insurance benefits, effective June 1961, the month in which she attained age 62.