B-118505, APRIL 12, 1954, 33 COMP. GEN. 446

B-118505, APRIL 12, 1954, 33 COMP. GEN. 446

PROXY MARRIAGES - VALIDITY - DEPENDENTS ASSISTANCE ACT OF 1950 ADMINISTRATIVE PROPOSAL IN CONNECTION WITH ADMINISTRATION OF DEPENDENTS ASSISTANCE ACT OF 1950, AS AMENDED, WHICH WOULD RECOGNIZE PROXY MARRIAGES, IN ABSENCE OF PROHIBITORY STATUTE OR ADVERSE JUDICIAL DECISION IN THE JURISDICTION WHERE CONTRACTED AND WITHOUT REGARD TO WHAT THE SITUATION MAY BE IN THE MATRIMONIAL DOMICILE, WOULD ACCORD RECOGNITION BY THE GOVERNMENT TO SUCH MARRIAGES REGARDLESS OF WHETHER THEY ACTUALLY ARE VALID UNDER THE LAW OF THE MATRIMONIAL DOMICILE, OR ON THE JURISDICTION WHERE CONTRACTED, OR FOR THAT MATTER IN ANY OTHER JURISDICTION, AND THEREFORE SUCH PROPOSAL IS QUESTIONABLE. PROXY MARRIAGES ARE RECOGNIZED BY THE GENERAL ACCOUNTING OFFICE IF CONTRACTED IN A JURISDICTION WHERE IT APPEARS AFFIRMATIVELY THAT SUCH MARRIAGES ARE AUTHORIZED BY STATUTE OR HAVE BEEN HELD VALID BY JUDICIAL DECISION, OR IF CONTRACTED IN A JURISDICTION WHERE IT APPEARS AFFIRMATIVELY THAT COMMON-LAW MARRIAGE IS RECOGNIZED AND PROXY MARRIAGES ARE NEITHER PROHIBITED BY STATUTE NOR HELD INVALID BY JUDICIAL DECISION. MARITAL STATUS DETERMINATIONS UNDER DEPENDENTS ASSISTANCE ACT OF 1950, AS AMENDED, MAY BE MADE IN ACCORDANCE WITH AN ADMINISTRATIVE REGULATION WHICH PROVIDES THAT THE VALIDITY OF A PROXY MARRIAGE SHALL BE DETERMINED ACCORDING TO THE LAW OF THE PLACE WHERE THE PARTIES RESIDED AT THE TIME OF THE MARRIAGE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, APRIL 12, 1954:

THERE HAS BEEN CONSIDERED LETTER DATED JANUARY 27, 1954, AND ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING DECISION WHETHER THIS OFFICE WILL RECOGNIZE PROXY MARRIAGES CONTRACTED IN JURISDICTIONS WHERE SUCH MARRIAGES ARE NOT PROHIBITED BY STATUTE AND HAVE NOT BEEN HELD INVALID BY JUDICIAL DECISION.

IT APPEARS FROM THE ENCLOSURE RECEIVED WITH THE LETTER OF JANUARY 27, 1954, THAT DECISION ON THIS QUESTION IS DESIRED BECAUSE OF AN ADMINISTRATIVE PROPOSAL THAT ALL PROXY MARRIAGES BE RECOGNIZED IN THE ADMINISTRATION OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794, AS AMENDED, UNLESS THEY ARE PROHIBITED BY STATUTE OR HAVE BEEN HELD TO BE VOID IN THE JURISDICTION WHERE THEY ARE CONTRACTED.

BECAUSE OF THE IRREGULAR NATURE OF THE CEREMONY; THE ABSENCE OF JUDICIAL PRECEDENT ON THE SUBJECT; AND CERTAIN PROVISIONS OF THE IMMIGRATION LAWS; THIS OFFICE TOOK THE POSITION IN DECISION OF FEBRUARY 7, 1945, 24 COMP. GEN. 595, THAT, GENERALLY, IN THE ABSENCE OF A STATUTE OR DECISION OF A PROPER COURT TO THE EFFECT THAT MARRIAGES BY PROXY ARE AUTHORIZED OR RECOGNIZED IN A PARTICULAR JURISDICTION, SUCH MARRIAGES WOULD NOT BE RECOGNIZED AS ENTITLING AN OFFICER TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A LAWFUL WIFE. TO THE SAME EFFECT ARE DECISIONS OF JUNE 13, 1945, B-49442; NOVEMBER 2, 1945, B-51263, 25 COMP. GEN. 369; NOVEMBER 26, 1945, B-52248; FEBRUARY 2, 1946, B-55582; JUNE 21, 1948, B- 54600; AND JANUARY 26, 1954, B-117383, 33 COMP. GEN. 305. IN DECISION OF JULY 30, 1951, B-103120, IT WAS INDICATED, ON THE BASIS OF SEVERAL MORE RECENT COURT DECISIONS, THAT SUCH MARRIAGES MIGHT BE REGARDED AS VALID IF PERFORMED IN A JURISDICTION WHICH RECOGNIZES COMMON-LAW MARRIAGE, UNLESS PROHIBITED BY STATUTE OR HELD INVALID BY JUDICIAL DECISION IN SUCH JURISDICTION. SEE ALSO DECISION OF SEPTEMBER 26, 1952, B-111192, 32 COMP. GEN. 144.

THUS, PROXY MARRIAGES ARE RECOGNIZED BY THIS OFFICE (1) IF CONTRACTED IN A JURISDICTION WHERE IT APPEARS AFFIRMATIVELY THAT SUCH MARRIAGES ARE AUTHORIZED BY STATUTE, OR HAVE BEEN HELD VALID BY JUDICIAL DECISION, AND (2) IF CONTRACTED IN A JURISDICTION WHERE IT APPEARS AFFIRMATIVELY THAT COMMON-LAW MARRIAGE IS RECOGNIZED AND PROXY MARRIAGES ARE NEITHER PROHIBITED BY STATUTE NOR HELD INVALID BY JUDICIAL DECISION. THE ADMINISTRATIVE PROPOSAL WOULD ACCORD RECOGNITION TO SUCH MARRIAGES SOLELY ON THE BASIS THAT THEY ARE CONTRACTED IN A JURISDICTION WHERE THEY ARE NEITHER PROHIBITED BY STATUTE NOR HELD INVALID BY JUDICIAL DECISION.

IN AT LEAST TWO INSTANCES THE LEGALITY OF A PROXY MARRIAGE CONTRACTED IN A JURISDICTION WHICH DOES NOT RECOGNIZE COMMON-LAW MARRIAGE AND WHERE PROXY MARRIAGE IS NEITHER PROHIBITED BY STATUTE NOR JUDICIALLY HELD VOID HAS BEEN CONSIDERED BY THE COURTS. IN BOTH CASES THE MARRIAGE WAS HELD TO BE VOIDABLE, SUCH CONCLUSIONS BEING BASED SQUARELY ON THE REQUIREMENTS OF THE MARRIAGE LAWS OF THE PARTICULAR JURISDICTION WHERE THE PARTIES RESIDED. RESPOLE V. RESPOLE, 70 N.E. 2D 465; BARRONS V. UNITED STATES, 191 F.2D 92. HOWEVER, THE BARRONS CASE CLEARLY RECOGNIZES THAT SUCH MARRIAGES MIGHT BE HELD TO BE VOID IF CONTRACTED IN ONE OF THE MANY JURISDICTIONS HAVING LAWS CONTEMPLATING THE PERSONAL APPEARANCE OF BOTH PARTIES BEFORE THE OFFICIAL ISSUING THE LICENSE OR REQUIRING CERTAIN PREMARITAL PHYSICAL EXAMINATIONS, EVEN THOUGH SUCH MARRIAGES WERE NOT EXPRESSLY PROHIBITED BY STATUTE. HENCE, THE ADMINISTRATIVE PROPOSAL, WHICH WOULD RECOGNIZE PROXY MARRIAGES IN THE ABSENCE OF ANY PROHIBITORY STATUTE OR ADVERSE DECISION IN THE JURISDICTION WHERE CONTRACTED AND WITHOUT REGARD TO WHAT THE SITUATION MAY BE IN THE MATRIMONIAL DOMICILE, WOULD SEEM QUESTIONABLE. IT WOULD ACCORD RECOGNITION BY THE GOVERNMENT TO SUCH MARRIAGES REGARDLESS OF WHETHER THEY ACTUALLY ARE VALID UNDER THE LAW OF THE MATRIMONIAL DOMICILE, OR IN THE JURISDICTION WHERE CONTRACTED, OR FOR THAT MATTER IN ANY OTHER JURISDICTION. THIS OFFICE MAY RECOGNIZE THE VALIDITY OF PROXY MARRIAGES ONLY WHERE THEY REASONABLY MAY BE CONSIDERED PROPER UNDER THE APPLICABLE LAW. YOUR QUESTION IS ANSWERED ACCORDINGLY.

IN CONNECTION WITH THIS MATTER, HOWEVER, IF ADMINISTRATIVE REGULATIONS ON THIS SUBJECT ARE DEEMED NECESSARY TO INSURE UNIFORMITY OF ACTION IN MAKING DETERMINATIONS OF MARITAL STATUS UNDER THE DEPENDENTS ASSISTANCE ACT, A REGULATION SIMILAR TO THAT OF THE VETERANS ADMINISTRATION CONSIDERED IN THE BARRONS CASE, THAT IS, THAT THE VALIDITY OF THE MARRIAGE SHALL BE DETERMINED ACCORDING TO THE LAW OF THE PLACE WHERE THE PARTIES RESIDED AT THE TIME OF MARRIAGE, WOULD BE CONSISTENT WITH THE VIEWS OF THIS OFFICE. SEE UNITED STATES V. SNYDER, 177 F.2D 44.