(husband’s second marriage is bigamous even though second wife
married in good faith without knowledge of husband’s prior undissolved
marriage); but see: Yarbrough v. Yarbrough, 314 S.E. 2d 16, (S.C. App.,
1984)(second wife was entitled to divorce and equitable distribution of
property, where husband failed to rebut presumption that his first
marriage was terminated by divorce or death); Cf. Day v. Secretary of
Health and Human Services, 519 F. Supp. 872, (D.C., D. of S. C.,
1981)(applicant found entitled to wife’s benefits under Social Security
Act on third husband’s earnings record even though marriage took place
before death of her second husband).

In the current case, even assuming Nancy’s belief that she was free to
marry Hugh within two years of the date Willie deserted her constitutes
good faith, in my opinion the court searches for records of divorce
between Willie and Nancy, and for records of a divorce ending Hugh’s
earlier marriage, would support a finding that both Nancy and Hugh’s
earlier marriages continued throughout the time she lived with him.
Johns v. Johns, supra, and Day v. Day, supra. Accordingly, I believe that
you may conclude that Nancy’s marriage to Hugh was invalid under
South Carolina law as bigamous, and she remains the widow of Willie.

In addition, I note that this office has previously found that Ohio courts
hold that once a marriage is established by evidence, and the record is
silent as to whether there has been a divorce of the parties, the marriage
relationship is presumed to continue. See Legal Opinion L-79-72, citing
In Re Clark’s Estate, 128 N.E. 2d 437, (Oh. App., 1954), and Evans v.
Industrial Commission, 143 N.E. 2d 705, (Oh., 1957). The evidence in this
case shows Willie and Nancy were married by ceremony in Ohio after he
divorced Marion. The record further shows no divorce occurred between
Willie and Nancy in the jurisdiction where they lived as husband and
wife. Even if the law of Ohio is considered as controlling because it was
his domicile at death, I believe the record supports a conclusion that
Willie’s marriage to Nancy would be presumed under Ohio law to
continue despite Nancy's attempted marriage to Hugh.

Attachments



UNITED STATES GOVERNMENT FORM G-115t (1-92)

MEMORANDUM RAILROAD RETIREMENT BOARD
GUN 01 2000
L-2000-20
TO: Penny J. Gillen '
Hearings Officer
Bureau of Hearings and Appeals

FROM: Steven A. Barthol
General Counsel

SUBJECT: Presumed Validity of Subsequent Marriage - South Carolina
Presumed Continuing Validity of Prior Marriage - Ohio

This is in reply to your memorandum of April 20, 2000, requesting my

opinion as to the validity of the subsequent marriage of the widow

annuity applicant in the case you submitted. For the reasons discussed
@ below, I conclude that you may determine that the applicant is the widow

of the deceased railroad employee.

The file reflects that the widow annuity applicant, Nancy, married the
railroad employee, Willie, in Ohio on November 27, 1958. They moved to
Philadelphia, Pennsylvania shortly afterward, and resided there as
husband and wife until sometime in 1967, when Willie abruptly left.
Nancy states she never heard from Willie again.

Nancy moved to South Carolina in 1968, where she met Hugh. Nancy
and Hugh married in South Carolina in 1969. At that time, Hugh
informed Nancy that his prior marriage had ended in divorce. Nancy
also believed herself free to remarry due to Willie’s desertion and
disappearance.

Willie applied for an age and service annuity under the Railroad
Retirement Act in May 1981. He stated on his application that he was
divorced from an earlier wife named Marion, and that he was currently
separated from Nancy rather than divorced. The Board’s payment
records show that Willie continued to reside in Philadelphia from 1981
until approximately December 1990, when he moved to Ohio. He died in

@ Ohio in January 1991. No spouse annuity application was ever filed
through the date of Willie’s death.

a



In mid-1997, Nancy sought to divorce Hugh, andin June 1997 was
assigned an attorney through South Carolina’s pro bono representation
program. However, when the attorney searched the court records, he
found no record that Hugh had divorced his prior wife. Accordingly, the
attorney advised Nancy no divorce was necessary because her marriage
to Hugh was invalid under South Carolina law.

Nancy filed an application for an annuity under the Railroad Retirement
Act as the widow of Willie in March 1999. In connection with her
application, court records for Philadelphia and neighboring New Jersey
were searched for the period January 1960 through December 1991. No
record of a divorce between Willie and Nancy was located in either
jurisdiction.

Nancy’s relationship to the employee for purposes of entitlement to an
annuity under the Railroad Retirement Act is determined in accordance
with section 2(d)(4) of the Act, which provides, in part, as follows:

In determining for purposes of this subsection * * * whether an
applicant is the wife, husband, widow, widower, child, or parent of
a deceased employee as claimed, the rules set forth in section
216(h) of the Social Security Act shall be applied deeming, for this
purpose, * * * individuals entitled to an annuity under paragraph
@ or (ii) of subsection (d)() of this section to be entitled to a benefit
under subsection (e), (f), or (g) of section 202 of the Social Security
Act.

Section 216(h)(1)(A) of the Social Security Act provides as follows:

@ An applicant is the wife, husband, widow, or widower of a
fully or currently insured individual for purposes of this
subchapter if the courts of the State in which such insured
individual is domiciled at the time such applicant files an
application, or, if such insured individual is dead, the courts
of the State in which he was domiciled at the time of death,
or, if such insured individual is or was not so domiciled in
any State, the courts of the District of Columbia, would find
that such applicant and such insured individual were validly
married at the time such applicant files such application or,
if such insured individual is dead, at the time he died.

Gi) Ifsuch courts would not find that such applicant and such
insured individual were validly married at such time, such
applicant shall, nevertheless be deemed to be the wife,



husband, widow, or widower, as the case may be, of such
insured individual if such applicant would, under the laws
applied by such courts in determining the devolution of
intestate personal property, have the same status with
respect to the taking of such property as a wife, husband,
widow, or widower of such insured individual.

It appears that the deceased employee had established domicile in Ohio
at the time of his death; so Ohio law governs the determination of
Nancy’s relationship to Willie. However, Nancy’s remarriage to Hugh
occurred in South Carolina, where she continues to reside. Ohio courts
have held that a marriage not valid in the place where it is contracted is
not valid anywhere. Dennis v. Railroad Retirement Board, 585 F. 2d 151
(6" Cir., 1978) (Ohio court would refer to Georgia law to determine
applicant's status as widow pursuant to section 216(h)(1)(A)). In my
opinion, an Ohio court would therefore look to South Carolina law to
determine the validity of Nancy’s marriage to Hugh.

Section 20-1-80 of the South Carolina Code provides with respect to
validity of marriage as follows:

20-1-80. Bigamous marriages shall be void; exceptions.

All marriages contracted while either of the parties has a former
wife or husband living shall be void. But this section shall not
extend to a person whose husband or wife shall be absent for the
space of five years, the one not knowing the other to be living
during that time, nor to an person who shall be divorced or whose
first marriage shall be declared void by the sentence of a
competent court.

South Carolina courts will apply a presumption of divorce to validate a
later marriage under section 20-1-80. See Hallums v. Hallums, 54 S.E.
613 (S.C. 1905). However, this office has noted in the past that South
Carolina courts seldom apply the rule, requiring validity of a marriage to
be established by evidence rather than presumed by operation of law;
and further appear to consider the rule not applicable at all in cases
where one of the parties to the marriage has a living spouse. See Legal
Opinion L-74-329, citing Day v. Day, 58 S.E. 2d 83, (S.C., 1950) and
Scheper v. Scheper, 118 S.E. 178 (S.C., 1923). My review of recent cases
supports this conclusion as well. See: Splawn v. Splawn, 429 S.E. 2d 805,
(S.C. , 1993)(second marriage is bigamous where husband remarried
without knowledge that a divorce decree had not been entered ending his
first marriage); Johns v. Johns, 420 S.E. 2d 856, (S.C. App., 1992)