Brief Summary
               The Civil Marriage Equality and Religious Freedom Act of 2013, enacted on May 7, 2013,
                  allows same-sex couples to marry in Delaware as of July 1, 2013. Parties to a same-sex
                  marriage are given the same right to change their name based upon the marriage under
                  common-law as opposite-sex couples. Parties to a preexisting civil union in Delaware
                  need not dissolve their civil union and have one year to choose to convert their civil
                  union to a marriage with or without another ceremony. However, if the couple does
                  not convert their civil union to a marriage by July 1, 2014, the civil union will
                  automatically convert to a marriage. Upon the effective date of the Act, July 1, 2013,
                  civil unions cannot be formed in Delaware.
               
               Questions Presented
               We are providing this advice in accordance with the Program Operations Manual System
                  (POMS) RM 10212.035, Evidence of a Name Change based on a U.S. Same-Sex Marriage. [1] Section D of RM 10212.035 provides that when a State legalizes same-sex marriages, an opinion from the Regional
                  Chief Counsel should be obtained regarding the following information:
               
               (1) the date the State will begin issuing marriage licenses and certificates to same-sex
                  couples;
               
               (2) whether the State permits parties to the same-sex marriage to change their names
                  based on the marriage;
               
               (3) whether a prior entered civil union or domestic partnership must be dissolved
                  before entering into a same-sex marriage; and
               
               (4) any change to the status of a prior or new civil union or domestic partnership
                  entered into in the same State.
               
               Discussion
               
                  - 
                     
                        1.  
                           The date Delaware will begin issuing marriage licenses and certificates to same-sex
                              couples.
                            
 
 
The Civil Marriage Equality and Religious Freedom Act of 2013 (the “Act”), enacted
                  on May 7, 2013, allows same-sex couples to marry in Delaware as of July 1, 2013. Delaware
                  statute requires a 24-hour waiting period between the issuance of a marriage license
                  and the marriage ceremony. Del. Code Ann. Tit 13, § 107(a) (West 2013). Thomas, Chief
                  Deputy Clerk of the Peace of New Castle County, Delaware advised that although marriage
                  licenses will not be issued to same-sex couples until July 1, 2013, the 24-hour waiting
                  period will be waived as permitted in Del. Code Ann. Tit 13, § 107(d)(1) (West 2013),
                  to allow same-sex marriages to take place on that date.
               
               
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                        2.  
                           Whether Delaware permits parties to the same-sex marriage to change their names based
                              on the marriage.
                            
 
 
The Act provides for the equal application of all laws of the state of Delaware relating
                  to marriage, married spouses or their children to same-gender or different gender
                  married spouses and their children. Although Delaware has a statutory procedure for
                  a legal name change by court order under Del. Code Ann. Tit.10, §5901 (West 2013),
                  under common law, these formal procedures are not required for a name change following
                  a marriage. See Degerberg v. McCormick, 40 Del. Ch. 471, 184 A.2d 468 (1962) (stating that statutes which authorize a proceeding
                  to change a name by court order are universally held not to affect the common law
                  right to a name change). In addition, Thomas confirmed that parties to a same-sex
                  marriage are able to change their names in the same manner as parties to an opposite-sex
                  marriage without requesting a court-ordered name change if the new name is the last
                  name of either party or a hyphenated combination of the last name of both parties.
                  However, Thomas also advised that in the event that the parties to a same-sex marriage
                  are seeking to change their last name to an entirely different last name, then the
                  parties must follow the statutory procedures to obtain a court order.
               
               Thomas explained that for a name change following marriage, the party desiring the
                  name change must change their name with the Social Security Administration and the
                  Delaware Division of Motor Vehicles (DMV). The website for the Delaware DMV indicates
                  that to change a name due to marriage on a driver’s license or ID card, the party
                  seeking a name change must, within 30 days, appear in person with his or her old driver’s
                  license and the marriage certificate. http://www.dmv.de.gov/services/driver_services/faqs/dr_faq_idchanges.shtml (last visited Jun. 4, 2013). However, because the Delaware DMV uses Social Security
                  Number online verification, the name change must be first processed by SSA or the
                  DMV will not issue a new license or ID card. Id.
               
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                        3.  
                           Whether a previously entered into same-sex marriage, civil union, or domestic partnership
                              between the parties must be dissolved before the parties can enter into a same-sex
                              marriage in Delaware.
                            
 
 
The Act allows for parties to a civil union that is not the subject of a pending proceeding
                  for dissolution, annulment or legal separation to convert their civil union to a marriage
                  prior to July 1, 2014 by application for a marriage license to the clerk of the peace
                  of the county in which their civil union license was issued, with or without further
                  solemnization of such marriage. Furthermore, on July 1, 2014, all remaining civil
                  unions will automatically convert to marriages if they are not currently subject to
                  a proceeding for dissolution, annulment or legal separation. Accordingly, the parties
                  do not need to dissolve their existing civil union prior to entering into a same-sex
                  marriage. Likewise, if the parties have previously entered into a civil union in another
                  jurisdiction, they will not be required to dissolve this union prior to marrying in
                  Delaware. Although Delaware does not have same-sex domestic partnerships, Thomas confirmed
                  that if the parties entered into a domestic partnership in another jurisdiction, they
                  need not dissolve this partnership before entering into a same-sex marriage in Delaware.
                  Finally, although Delaware will recognize same-sex marriages solemnized outside of
                  Delaware as marriages, in the event that same sex couples previously married in another
                  state seek to marry the same partner again in Delaware, Thomas confirmed that such
                  couples will be permitted to marry in Delaware without having to dissolve their previous
                  out-of-state union.
               
               Nevertheless, under the Act, parties applying for a marriage license must provide
                  the “date and place of previous marriages, civil unions, domestic partnerships or
                  other substantially similar legal unions, and termination of previous marriages, civil
                  unions, domestic partnerships or other substantially similar legal unions.” Therefore,
                  if parties want to enter into a marriage with a person other than a person with whom
                  they have already entered into a marriage, civil union or domestic partnership, they
                  must first dissolve this union. Thomas confirmed that if one of the parties is already
                  a party to a same-sex marriage, civil union or domestic partnership with another person,
                  the previous union must be dissolved before entering into a same-sex marriage in Delaware.
               
               
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                        4.  
                           Whether there is any change to the status in prior or new civil unions entered into
                              in Delaware.
                            
 
 
As of July 1, 2013, the effective date of the Act, no new civil unions will be formed
                  in Delaware. Furthermore, on July 1, 2014, all remaining civil unions not currently
                  subject to a proceeding for dissolution, annulment or legal separation will automatically
                  convert to marriages. The effective date of such a marriage shall be deemed to be
                  the date of solemnization of the original civil union.
               
               Notably, the Act also provides that both parties to legal unions (other than marriages)
                  between two persons of the same gender established in another jurisdiction, will be
                  afforded the same rights, benefits and protections, and will be subject to the same
                  responsibilities, obligations, and duties as a marriage for the purposes of Delaware
                  law. However, for such recognition to apply, the union must be validly formed in such
                  other jurisdiction, the parties to the union must meet the eligibility requirements
                  to enter into a marriage in the state of Delaware, and the union must afford and impose
                  on the parties substantially the same rights, benefits, protections, responsibilities,
                  obligations, and duties of marriage.
               
               Nora R. Koch
               Acting Regional Chief Counsel
 By: _______________________ 
 Tara A. Czekaj 
Assistant Regional Counsel