B-131893, AUG. 7, 1957

B-131893, AUG. 7, 1957

TO LIEUTENANT COLONEL C. W. GRIFFIN, USAF, DISBURSING OFFICER, USAF:

YOUR LETTER OF MAY 7, 1957, REQUESTS A DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, COVERING PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF MASTER SERGEANT LESLIE JOHN STOREY, AF 6 571 103, WHO DIED DECEMBER 20, 1956.

FORM 0-529, COMPLETE CASUALTY REPORT, WHICH ACCOMPANIED YOUR SUBMISSION, IS DATED JANUARY 23, 1957, AND SHOWS THAT MASTER SERGEANT STOREY DIED DECEMBER 20, 1956, AT ELMENDORF AIR FORCE BASE, ALASKA; THAT HIS DEATH WAS IN LINE OF DUTY AND WAS NOT THE RESULT OF HIS OWN MISCONDUCT, AND THAT HE DESIGNATED MRS. HELEN RITA STOREY, WIFE, TO RECEIVE ALL OF HIS UNPAID PAY AND ALLOWANCES AND AS THE PRINCIPAL BENEFICIARY FOR $5,000 OF THE SERVICEMAN'S INDEMNITY.

THE ESSENTIAL FACTS FURNISHED ARE THAT ON JULY 8, 1953, IN THE PROBATE COURT FOR THE COUNTY OF HAMPDEN, MASSACHUSETTS, HELEN RITA O CONNOR CONNOR WAS AWARDED A DIVORCE "NISI" FROM JAMES ARTHUR CONNOR. UNDER THE TERMS OF THE DECREE, AND OF THE MASSACHUSETTS STATUTES (CHAPTER 208, SECTION 21, ANNOTATED LAWS OF MASSACHUSETTS), THE DIVORCE DID NOT "BECOME ABSOLUTE" UNTIL AFTER THE EXPIRATION OF SIX MONTHS FROM THE ENTRY THEREOF. THE AIRMAN AND HELEN RITA O-CONNOR (APPARENTLY THE MRS. HELEN RITA STOREY NAMED IN THE SUBMITTED VOUCHER) WENT THROUGH A MARRIAGE CEREMONY AT ANCHORAGE, ALASKA ON SEPTEMBER 10, 1953--- BEFORE HER DIVORCE BECAME ABSOLUTE. IN HER AFFIDAVIT DATED MARCH 18, 1957, SUPPORTING A POSSIBLE COMMON-LAW MARRIAGE, SHE ASSERTS THAT ON SEPTEMBER 10, 1953, SHE AND LESLIE JOHN STOREY AGREED TO BECOME HUSBAND AND WIFE AND TO ASSUME ALL OF THE DUTIES AND RESPONSIBILITIES OF A MARRIAGE RELATIONSHIP; THAT SUCH RELATIONSHIP WAS CONSUMMATED BY VOLUNTARY COHABITATION IN THE SAME HOUSEHOLD AS HUSBAND AND WIFE, EACH AND BOTH HOLDING THEMSELVES OUT TO MEMBERS OF THE ALASKA COMMUNITY IN WHICH THEY LIVED AS HUSBAND AND WIFE FROM SEPTEMBER 10, 1953, UNTIL THE DATE OF THE AIRMAN'S DEATH ON DECEMBER 20, 1956.

ON THE BASIS OF THE FACTS SET OUT IN YOUR LETTER AND ACCOMPANYING PAPERS, IT APPEARS THAT THE AIRMAN'S CEREMONIAL MARRIAGE WITH HELEN RITA WAS VOID AB INITIO, SINCE HER DIVORCE FROM JAMES ARTHUR CONNOR HAD NOT BECOME FINAL AT THE TIME.

IT APPEARS THAT COMMON-LAW MARRIAGES WERE RECOGNIZED IN ALASKA PRIOR TO 1917. SEE HARKRADER V. REED, 5 ALASKA 107, AFFIRMED IN REED V. HARKRADER, 264 F. 834. SECTION 1 OF THE ACT OF MAY 3, 1917, SESSION LAWS OF ALASKA, 1917, HOWEVER, PROVIDED THAT NO PERSON SHOULD BE JOINED IN MARRIAGE IN THE TERRITORY OF ALASKA UNTIL AFTER OBTAINING A MARRIAGE LICENSE AND SECTION 12 OF THAT ACT PROVIDED THAT ALL MARRIAGES THEREAFTER CONTRACTED IN VIOLATION OF SECTION 1 SHOULD BE NULL AND VOID, BUT THAT SUCH MARRIAGES COULD BE VALIDATED BY COMPLYING WITH THE REQUIREMENTS OF THAT ACT. WHILE SECTION 1 OF THAT ACT WAS REPEALED IN 1933, THE PERTINENT PROVISIONS THEREOF WERE REENACTED IN 1939 AS AN AMENDMENT TO SECTION 1189, COMPILED LAWS OF ALASKA, 1933 (SECTION 2 OF THE 1917 ACT), AND NOW ARE SET FORTH IN SECTION 21-1-11 OF THE ALASKA COMPILED LAWS ANNOTATED 1949.

IN VIEW OF THE EXPRESS DECLARATION OF NULLITY CONTAINED IN SECTION 12 OF THE 1917 ACT, IT IS CLEAR THAT COMMON-LAW MARRIAGES WERE NOT RECOGNIZED IN ALASKA WHILE SECTION 1 OF THAT ACT WAS IN FORCE. VERNIER, AMERICAN FAMILY LAWS, VOLUME 1, PAGE 104, SECTION 26; SEE ALSO PAGE 106. THE REENACTMENT OF THE LICENSE REQUIREMENT IN 1939, FORMERLY CONTAINED IN SECTION 1 OF THE 1917 STATUTE AND REFERRED TO IN SECTION 12 THEREOF, AS AN AMENDMENT TO THAT SECTION OF THE COMPILED LAWS OF ALASKA SETTING FORTH SECTION 2 OF THE 1917 STATUTE, IN OUR OPINION MAY BE CONSIDERED AS HAVING THE SAME EFFECT WITH RESPECT TO COMMON-LAW MARRIAGES AS IF REENACTED AS SECTION 1 OF THAT STATUTE.

IT HAS BEEN HELD THAT A COMMON-LAW MARRIAGE IS NOT VALID UNDER A STATUTE REQUIRING A LICENSE FOR A MARRIAGE AND AUTHORIZING CERTAIN PERSONS TO PERFORM THE MARRIAGE AND EXPRESSLY PROVIDING FURTHER THAT A MARRIAGE SHALL NOT BE VOID BECAUSE SOLEMNIZED BY A PERSON NOT LEGALLY AUTHORIZED TO PERFORM IT IF THE PARTIES OR EITHER OF THEM BELIEVE THEY ARE LAWFULLY MARRIED--- SIMILAR TO PROVISIONS CONTAINED IN STATUTES OF ALASKA. IN RE MCLAUGHLIN'S ESTATE, 4 WASH. 570, 30 F. 651; HUARD V. MCTEIGH, 113 OR 279, 232 F. 658, 661-663; AND IN RE ROBERT'S ESTATE, 58 WYO. 438, 133 F.2D 492, HELD IN EFFECT THAT STATUTES SIMILAR TO THOSE IN FORCE IN ALASKA, INCLUDING THE LICENSE REQUIREMENT, WHICH CONSTITUTE A COMPLETE CODE ON THE FORM AND REQUISITES OF MARRIAGE, HAVE ABROGATED THE COMMON LAW ON THE SUBJECT OF MARRIAGE, EVEN THOUGH COMMON-LAW MARRIAGES ARE NOT EXPRESSLY DECLARED INVALID. KEEZER ON MARRIAGE AND DIVORCE, THIRD EDITION, 1946, STATES IN SECTION 1126 THAT COMMON-LAW MARRIAGES ARE NOT RECOGNIZED IN ALASKA. HENCE, IT IS OUR VIEW THAT COMMON-LAW MARRIAGES IN ALASKA ARE INVALID AND THAT THE MARRIAGE OF THE PARTIES HERE INVOLVED CANNOT BE RECOGNIZED ON THAT BASIS.

ACCORDINGLY, ON THE PRESENT RECORD PAYMENT OF THE VOUCHER, WHICH WILL BE RETAINED HERE, IS NOT AUTHORIZED.