The worker's first wife secured a Mexican divorce from him which would be considered invalid in Texas, the State of the worker's last domicile, since both parties were domiciled in the United States at the time of the divorce. The worker married another woman and they lived together until his death. There was insufficient evidence to rebut the presumption under applicable Texas law that the first marriage had terminated. Held, the second wife was the worker's widow for purposes of entitlement to benefits on his earnings record.

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. 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. 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.

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