files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife, husband, widow, widower, child, or parent shall be deemed such. Under California law an interlocutory divorce decree awarded by a California court does not terminate the marriage relation, which continues to subsist until the entry of a final decree (Associate General Counsel's opinion L-52-222). Therefore, the ceremonial marriage of B and A on July 2, 1932, in Nevada did not create a valid marriage because the final divorce decree dissolving his marriage to his first wife was not entered until April 13, 1933. However, A and B continued to live together as husband and wife in California from the time of their ceremonial marriage, after the final divorce decree was entered until her death, and she appears to have been entitled as a "putative" spouse, since it appears that both A and B entered into their marriage of July 2, 1932, in good faith and believed during their marriage, that they were validly married. Such good faith is sufficient to bring this case within the rule enunciated by the California courts relative to a "putative marriage." A putative marriage is a matrimonial union which has been solemnized in good faith on the part of one or both of the parties but which by reason of some legal infirmity is either void or voidable, but the essential basis of such a marriage is the belief that it is valid. The California courts have held that a putative widow is entitled to inherit as a widow (Estate of Krome, 189 P. 2d 741 (Calif. 1948)). Accordingly, it is my opinion that B may be held to have been entitled to the spouse's annuity awarded to her during her lifetime as a putative wife. It is noted that A who has been visiting his first wife every other year or so, is now alleging that Yugoslavia where his first wife is domiciled, does not recognize California divorce dissolving his marriage to his first wife and has inquired as to his first wife's entitlement to spouse's benefits. At the time A obtained the California divorce he was domiciled in California and the California courts had jurisdiction. The divorce decree appears regular on its face. Under California law the validity of a divorce decree cannot be contested by a party who has procured the decree or who has married in the reliance thereon or by one who has aided another to procure the decree so that the latter will be free to marry (Rediker v. Rediker, 221 P.2d 1 (Cal. 1950)). A, although visiting in Yugoslavia, does not appear to be domiciled there, but does appear to be domiciled in California. However, even if he establishes a domicile in Yugoslavia, or in any other foreign country, the status of his first wife will depend upon whatever status as "wife" she would have under the laws of the District of Columbia (Associate General Counsel's opinion L-59-81). The District of Columbia will recognize as valid a divorce decree granted in a State according to its laws, by a court having jurisdiction (Frey v. Frey, 59 F.2d 1046 (D.C. 1932)). Accordingly, the divorce decree granted A by the California court having jurisdiction is held to have dissolved the marriage of A and C, without regard to the law of Yugoslavia or the view of the courts of Yugoslavia. SECTION 4(i) OF THE RAILROAD RETIREMENT ACT-REDUCTION OF SURVIVOR ANNUITIES BASED IN PART ON MILITARY SERVICE WHICH WAS USED AS A BASIS OR PARTIAL BASIS FOR GRATUITOUS PERIODIC BENEFITS UNDER ANOTHER ACT OF CONGRESS 20 CFR 237.205 L-61-499 The reduction of survivor annuities based in part on military service, which service is the basis or partial basis for gratuitous periodic benefits under another Act of Congress, is in the proportion by which the increase in years of service of the employee the military service produces bears to his total years of service. The question has arisen as to whether the widow's current insurance annuity and children's annuities payable to the widow and children of S should be reduced in accordance with the literal provisions of section 4(i) of the Act, i.e., by the proportion which the number of "years of service" by which his creditable military service increases the "years of service" bears to his total "years of service" (including service before 1937). It is held that the reduction should be made in this way. Section 4(i) of the Railroad Retirement Act provides: In the event military service is or has been used as the basis or as a partial basis for a pension, disability compensation, or any other gratuitous benefits payable on a periodic basis under any other Act of Congress, any annuity under this Act or the Railroad Retirement Act of 1935, which is based in part on such military service and is with respect to a calendar month for all or part of which such pension or other benefit is also payable, shall be reduced with respect to that month by the proportion which the number of years of service, by which such military service increases the years of service, or the service period, as the case may be, bears to the total years of service, or by the aggregate amount of such pension or other benefit with respect to that month, whichever would result in the smaller reduction. In opinion L-46-679 (see also L-50-242) it was indicated that survivor annuities ought to be reduced where gratuitous benefits are payable on a periodic basis under another Act of Congress based in whole or in part on the same military service that is credited toward the annuities by taking into account only the service which related to the determination of quarters of coverage. In 1955 the present section 237.205 of the regulations was promulgated which provides in subsection (a) that the reductions under section 4(i) of the Act in the case of survivor annuities shall be in "the proportion which the increase by reason of the inclusion of military service, in the quarters of coverage used in determining the amount of benefits bears to the total of such quarters." The widow of S has appealed to the Board on the grounds that the deduction should be applied in the same way as in the case of employee annuities rather than as it was under section 237.205 of the regulations to the survivor annuities involved. Upon further consideration it is concluded that while an interpretation of section 4(i) as set forth in section 237.205 of the regulations is reasonable as being in accord with the general theory of the reduction provision as applicable to employee annuities it is preferable to adhere literally to the language of section 4(i). This section was in effect when survivor annuities were introduced into the railroad retirement system by the amendments of the Act in 1946. Congress did not enact any new provisions to cover the reduction of survivor annuities where the military service was credited in the determination as to the survivor annuities and the same military service was the basis or partial basis for gratuitous periodic benefit payments under another Act of Congress. The deduction provision of section 4(i) as applied literally does not seem to have the same rational relation to survivor annuities as it does to employee annuities which are determined to be payable and computed directly on a basis of the total "years of service" while survivor annuities are not. Applied literally the deduction provision would have less relation to the effect on annuities produced by the military service than otherwise and involve to an extent a departure from the principle against duplicate benefit payments. Yet Congress could well have intended that the deduction provision apply in the same way in the case of survivor annuities as in the case of employee annuities even though the deduction would appear for the reasons stated to be on an arbitrary basis in respect of survivor annuities. The conclusion that it did so intend is more defensible since it involves no departure from the express language of the statute. A revision of section 237.205 of the regulations would, of course, be required to bring the regulations into accord with this conclusion. The interpretation of section 4(i) as reflected in the present section 237.205 of the regulations was, as stated, reasonable. For that reason it is unnecessary for the Bureau of Retirement Claims to revise the deduction in respect of annuities already awarded unless a specific request is made by or for the beneficiary for a revision. SECTION 5(a) OF THE RAILROAD RETIREMENT ACT-ANNULMENT OF REMARRIAGE-REINSTATEMENT OF WIDOW'S ANNUITY 20 CFR 237.406 L-61-517 Widow's insurance annuity may be reinstated as of the day following the annulment of voidable marriage. The issue is whether the widow's insurance annuity previously awarded to B as the "widow" of A may be reinstated as of March 14, 1961, the day following the issuance of a decree of annulment of her voidable remarriage. A died January 17, 1947, domiciled in Michigan. B filed an application as a widow and established her birth date and that she and A were ceremonially married on November 6, 1927. She was awarded a widow's insurance annuity. She subsequently informed the Board that she had remarried on December 4, 1959, and payments to her were stopped. On March 7, 1961, an attorney informed the Board that B had had her remarriage annulled and inquired as to her entitlement to benefits. He submitted a decree of annulment which shows that in the case of B v. C, the Superior Court of Pinal County, Arizona, on March 13, 1961, granted plaintiff "an absolute decree of annulment." The decree recites that the plaintiff was present in person, was represented by her counsel and that the defendant was not present but was represented by his attorney. Also submitted was a copy of the amended complaint for annulment filed in the case, in which the plaintiff alleged that she and the defendant were residents of Pinal County, Ariz.; that they were married on December 4, 1959; that plaintiff's consent to the marriage was induced by fraud on the part of the defendant in that "Defendant secretly intended not to consummate said marriage and never intended to cohabit with Plaintiff * *” and that 66 # * * pursuant to said fraudulent intent, Defendant continuously and at all times after said ceremony refused to live and cohabit with said Plaintiff." Section 5(a) of the Railroad Retirement Act provides: * Widow's and Widower's Insurance Annuity.-A widow or widower of a completely insured employee, who will have attained the age of sixty, shall be entitled during the remainder of her or his life, or, if she or he remarries, then until remarriage to an annuity for each month equal to such employee's basic amount: * The Supreme Court of Arizona in the case of Southern Pacific Company v. Industrial Commission et al, 91 P. 2d 700 (Ariz. 1939) stated: Two of the essentials of a valid contract are that the parties have capacity to enter into it, and that they actually consent thereto, and these principles apply to the contract upon which marriage is based. It, therefore, follows logically that if a marriage contract, though proper in form, is entered into by parties who have not the capacity to consent thereto, or who, for some reason or another, have consented in form but not in fact, the marriage contract may be set aside like any other one, on the ground that the essentials are lacking. The retroactive annulment of a voidable marriage entered into by the widow of a deceased employee has the effect of establishing eligibility for her widow's insurance annuity as of the date of the decree annulling the remarriage. (Associate General Counsel's opinion L-58-109.) While the courts of Arizona did not appear to have specifically determined that fraud to induce consent to a marriage will create a voidable marriage, the Supreme Court of Arizona in Southern Pacific v. Industrial Commission, supra, defined as voidable those marriages subject to ratification at the will of the injured party. The marriage of B to C may be regarded as a voidable marriage since it was not a void marriage and could have been ratified by the parties. Accordingly, it is held that the widow's insurance annuity previously awarded to B as the "widow" of A may be reinstated as of March 14, 1961, if she is otherwise entitled. ANNUITY INDEX Disability Annuity— Employee Annuity— Annuitant, in dire need, for whom a guardian had been acting Annuity may be paid while individual is carried on payroll to Minimum Annuity- L-61-360 88 L-61-346 76 Action taken by annuitant in Yugoslavia effected valid L-61-156 39 37 his annuity under the social security minimum provision. L-61-442 94 Individual who was receiving widow's annuity can upon death Spouse's Annuity— Mexican divorce is not valid, because of lack of jurisdictional Restriction on remarriage in New York divorce decree does Widow's Annuity— Reinstatement of widow's annuity allowed after annulment |