B-152506, JANUARY 30, 1964, 43 COMP. GEN. 531

B-152506, JANUARY 30, 1964, 43 COMP. GEN. 531

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - ANNULMENT OF WIDOW'S REMARRIAGE FOLLOWING THE ANNULMENT OF A "VOID MARRIAGE" BEFORE RESTORATION OF THE WIDOW'S ANNUITY PAYMENTS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, A JUDICIAL DECREE SHOULD BE REQUIRED IN THE ABSENCE OF A DECISION BY THE GENERAL ACCOUNTING OFFICE IN A PARTICULAR CASE, AND ANNUITY PAYMENTS FOR A PERIOD EARLIER THAN THE DATE OF SEPARATION FOLLOWING DISCOVERY THAT THE MARRIAGE WAS VOID SHOULD NOT BE RESTORED OR THE BENEFITS REINSTATED FOR ANY PERIOD FOR WHICH ANNUITY PAYMENTS WERE MADE ON BEHALF OF CHILDREN UNDER OPTION (3) OF 10 U.S.C. 1434 (A), FOLLOWING TERMINATION OF THE WIDOW'S ANNUITY BECAUSE OF HER "REMARRIAGE," AND THE STATUTE CONTEMPLATING THE PAYMENT OF ONLY ONE ANNUITY FOR ANY ONE MONTH UNDER OPTION (3), UPON NOTICE THAT THE WIDOW'S REMARRIAGE WAS VOID, PAYMENT OF AN ANNUITY TO A CHILD UNDER OPTION (3) SHOULD BE SUSPENDED PENDING RESOLUTION OF THE ISSUES INVOLVED, AND ALL DOUBTFUL CASES AS TO ANNUITY PAYMENTS REFERRED TO THE GENERAL ACCOUNTING OFFICE.

TO THE SECRETARY OF DEFENSE, JANUARY 30, 1964:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 16, 1963, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO WHETHER ANNUITY PAYMENTS TO A WIDOW UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, MAY BE REINSTATED FOLLOWING THE ANNULMENT OF A "VOID MARRIAGE.' A DISCUSSION PERTAINING TO THIS MATTER IS CONTAINED IN COMMITTEE ACTION NO. 327 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

UNDER THE PROVISIONS OF SUBSECTION 1434 (A), OF TITLE 10, UNITED STATES CODE, THE ANNUITY THAT A MEMBER OF THE ARMED FORCES IS AUTHORIZED TO ELECT UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, TO BE PAID TO, OR ON BEHALF OF HIS WIDOW, TERMINATES WHEN THE SURVIVING SPOUSES DIES OR "REMARRIES.'

WHILE THE DISCUSSION IN COMMITTEE ACTION NO. 327 DOES NOT INCLUDE A DEFINITION OF A "VOID MARRIAGE," IT WILL BE ASSUMED THAT THE TERM WAS INTENDED TO REFER TO A "MARRIAGE" THAT IS ABSOLUTELY AND INTRINSICALLY VOID; THAT IS, A "MARRIAGE" THAT CREATES NO LEGAL MARITAL STATUS OR LEGAL RELATIONSHIP OF HUSBAND AND WIFE, THAT UNDER THE LAW THE PARTIES COULD NOT CONTRACT OR SUBSEQUENTLY RATIFY--- A "MARRIAGE" WHICH MAY BE DECLARED A NULLITY EVEN AFTER THE DEATH OF ONE OF THE PARTIES. THE QUESTION PRESENTED WILL BE CONSIDERED ON THAT BASIS.

IN GENERAL IT HAS BEEN THE PRACTICE UNDER OTHER FEDERAL STATUTES TO REINSTATE A WIDOW'S BENEFITS WHERE THE REMARRIAGE WAS ABSOLUTELY AND INTRINSICALLY VOID. SEE, FOR EXAMPLE, ADMINISTRATOR'S DECISIONS, VETERANS ADMINISTRATION, NO. 824, SEPTEMBER 1, 1949, AND NO. 962, MARCH 16, 1959, AND 38 U.S.C. 101 (3) PRIOR TO ITS 1962 AMENDMENT. WE PERCEIVE NO REASON WHY, IN THE CASE OF SUCH AN ABSOLUTELY AND INTRINSICALLY VOID MARRIAGE, THE ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN SHOULD NOT BE REINSTATED.

EVEN IN VOID MARRIAGE CASES, HOWEVER, SURVIVOR BENEFITS PAYABLE BY THE VETERANS ADMINISTRATION GENERALLY HAVE NOT BEEN RESTORED FOR ANY PERIOD EARLIER THAN THE DATE OF SEPARATION FOLLOWING THE DISCOVERY THAT THE MARRIAGE WAS VOID. SEE ADMINISTRATOR'S DECISION NO. 824, ABOVE CITED. THINK THAT A SIMILAR RULE SHOULD BE FOLLOWED IN VOID MARRIAGE CASES ARISING UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. WHILE UNDER APPLICABLE LAW ABSOLUTELY AND INTRINSICALLY VOID MARRIAGES MAY NOT REQUIRE A JUDICIAL DECREE TO TERMINATE THE "MARRIAGE," WE THINK THAT IN THE ABSENCE OF A DECISION OF THIS OFFICE IN A PARTICULAR CASE A JUDICIAL DECREE SHOULD BE REQUIRED BEFORE RESTORATION OF THE ANNUITY.

THE WIDOW'S ANNUITY SHOULD NOT BE REINSTATED FOLLOWING A VOID MARRIAGE FOR ANY PERIOD FOR WHICH ANNUITY PAYMENTS WERE MADE ON BEHALF OF CHILDREN UNDER OPTION (3) OF 10 U.S.C. 1434 (A) FOLLOWING TERMINATION OF THE WIDOW'S ANNUITY BECAUSE OF HER "REMARRIAGE.' SUCH PAYMENTS TO THE CHILDREN WOULD BE BASED ON THE PURPORTED REMARRIAGE AND WOULD BE PROPER WHEN MADE. IN OUR VIEW THE STATUTE DOES NOT CONTEMPLATE THAT PAYMENT OF THE CHILDREN'S ANNUITY BE SUSPENDED BECAUSE A PURPORTED REMARRIAGE POSSIBLY MAY BE QUESTIONED AT SOME LATER DATE OR THAT DUAL PAYMENTS OF THE ANNUITY BE MADE BY REINSTATING THE WIDOW'S ANNUITY RETROACTIVELY UPON A JUDICIAL DECLARATION OF THE NULLITY OF THE REMARRIAGE. THE STATUTE CLEARLY CONTEMPLATES THE PAYMENT OF ONLY ONE ANNUITY FOR ANY ONE MONTH UNDER OPTION (3). IF NOTICE IS RECEIVED THAT THE WIDOW'S "REMARRIAGE" WAS ABSOLUTELY AND INTRINSICALLY VOID AND SUCH "REMARRIAGE" HAS BEEN THE BASIS FOR PAYMENT OF AN ANNUITY TO A CHILD UNDER OPTION (3), PAYMENTS OF THE CHILD'S ANNUITY SHOULD BE SUSPENDED PENDING RESOLUTION OF THE ISSUES INVOLVED.

ANY DOUBTFUL CASE IN WHICH PAYMENT OF AN ANNUITY FOLLOWING A VOID MARRIAGE IS PROPOSED AND WHICH INVOLVES A QUESTION NOT ANSWERED BY THE ABOVE GENERAL STATEMENTS SHOULD BE REFERRED HERE FOR CONSIDERATION AND DECISION.

OUR DECISION OF MARCH 21, 1963, B-141945, 42 COMP. GEN. 500, INVOLVED A VOIDABLE MARRIAGE WHICH WAS ANNULLED AND HENCE THAT DECISION IS NOT FOR APPLICATION IN CASES INVOLVING AN ABSOLUTELY VOID MARRIAGE.