20 CFR 404.336

SSR 75-16

Where an individual domiciled in South Carolina obtains a divorce in Haiti -- a foreign country in which neither spouse is domiciled, held, such purported divorce would not be recognized on the basis of comity by South Carolina and hence the individual does not meet the "is not married" requirement for entitlement to mother's insurance benefits under Section 202(g)(1) of the Social Security Act based on the earnings of such individual's former deceased spouse.

W married R on August 1, 1946. After R's death on January 23, 1971, W filed an application in Chicago, Illinois, for mother's insurance benefits on February 16, 1971, based on R's earnings. On March 11, 1972, W married G in Charleston, South Carolina, resulting in the termination of W's mother's insurance benefits. Although both parties maintained residence in South Carolina, W was granted a divorce on September 13, 1972, by the court of Port-au-Prince, Haiti. The court found that W appeared in person on September 12, 1972, to prosecute her action, that the defendant filed a "Power of Attorney" and submission to the jurisdiction of the Haiti court, and that both plaintiff and the defendant were represented by counsel of their own choice. W asserted that her husband "was notified of the divorce which was uncontested." On September 22, 1972, W filed another application for reentitlement to mother's insurance benefits as the unmarried widow of R.

The question at issue is whether or not W continues to be married to G. This in turn depends on the legal effect of the purported divorce obtained in Haiti.

Section 202(g)(1) of the Social Security Act, as amended, provides, in pertinent part, that a widow of an individual who died fully or currently insured is entitled to a mother's insurance benefit if "(A) she is not married." In addition, Section 404.336(b)(2) of the regulations (20 CFR 404.336(b)(2)) provides that "if a widow or surviving divorced mother marries a man not entitled to any of the benefits . . . and consequently her entitlement to mother's insurance benefits is terminated, she may become reentitled to such benefits upon termination of the later marriage for any reason, provided all other conditions of entitlement are satisfied."

The Social Security Act itself contains no specific directive as to the law to be applied in determining whether a claimant 'is not married.' That is an issue wholly separate from whether or not the claimant has the status of 'widow' of R. Only if the claimant is a widow is there a need to determine whether she 'is not married.' (Section 216(h)(1)(A) of the Act applies only to the issue of whether she is a 'widow', only that issue requires application of the laws of the State in which R was domiciled at the time of his death.)

In determining whether the claimant 'is not married' the Social Security Administration applies the law of the State with which the claimant has had the most recent connection. Thus, here the validity of W's Haitian divorce decree would be governed by the law of South Carolina. W moved there after the death of R and remarried there. In addition, she filed her September 22, 1972, application for mother's insurance benefits in that State (the first application was filed in Illinois), and has maintained her residence there. Moreover, South Carolina is the jurisdiction most likely to have a substantial legal interest in claimant's marital status. It would appear that South Carolina would not recognize as valid a divorce involving its citizens which was granted by the court of a foreign jurisdiction in which neither party to the divorce was domiciled.

Accordingly, it is held, that the divorce in this case would not have the effect of returning W to the status of an unmarried individual since her marriage to G has not been dissolved. Therefore, W does not qualify for mother's insurance benefits based on R's earnings record.

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