TN 6 (08-06)

PR 02706.020 Kentucky

A. PR 06-286 Whether a Marriage in Bonaire Netherlands Antilles is Recognized in Kentucky and May Be Used As Evidence For A Legal Name Change Under Kentucky Law. Number Holder: Erica K~

DATE: August 15, 2006

1. SYLLABUS

SSA can process the name change because the State of Kentucky acknowledges a foreign marriage in the Netherlands, and the wife is taking the husband's last name.

2. OPINION

QUESTION

You asked for an opinion on whether a marriage in Bonaire Netherlands Antilles is recognized in Kentucky and may be used as evidence to justify a legal name change for a Kentucky resident.

ANSWER

You asked for an opinion on whether a marriage in Bonaire Netherlands Antilles is recognized in Kentucky and may be used as evidence to justify a legal name change for a Kentucky resident.

BACKGROUND

On June 19, 2006, Erica L. C~ (NH) filed an application for a replacement SSN card, and requested that the card reflect her new name, Erica C. K~. The reason for her name change is that she was married to Clinton M. K~ on March 10, 2005 in Bonaire, Netherlands. NH is a U.S. citizen and is over 18 years of age. NH submitted a translation of her marriage certificate, and what appears to be a document from the Bonaire Civil Registry & Elections department.

OPINION

When applying for a replacement SSN card due to a name change, an applicant generally must submit documentation of the name change and his or her identity. Pursuant to POMS RM 00203.210(A)(1), an applicant must submit a legal name change document that identifies the applicant by both the old and new names (e.g., a court order for a name change or marriage document). The applicant must also provide either (1) a description or photograph, or (2) biographical information that can be compared to SSA's number holder identification (Numident) data. Id. The description, photograph, or biographical data may be either on the name change document itself, or on two other identity documents (one showing the prior name and one showing the current name). Id. If the name change is because a bride wants to take her husband's last name, SSA may accept the marriage document as a legal name change for the bride if the new name can be derived from the marriage document; even if the marriage document only shows each partner's first names, the bride's prior surname, and husband's surname. POMS RM 00203.210(B)(1)(a). The marriage document can be accepted as evidence of identity for both the old and new names when it also includes biographical information (e.g., date of birth, age, or parents' names) and/or physical information (e.g. physical description, photograph). Id.; see POMS RM 00203.200(G)(2).

SSA POMS RM 00203.210(B)(1)(d). further provides, “for a U.S. resident, a name change based on a foreign marriage depends on the laws of the State where he/she resides . . . If the State of residence recognizes the [foreign] marriage, assume it applies its own State law for a legal name change.” If the state where the applicant resides would acknowledge the foreign marriage, and the wife is taking the husband's last name, SSA can process the name change request. See POMS RM 00203.210(D)(8).

A review of Kentucky precedent reveals that the state recognizes foreign marriages. “[E]specially in Kentucky it is the settled law that a marriage valid in the country where celebrated is to be held valid in other countries,” and Kentucky courts will sustain the validity of a marriage if legal at the place of celebration. See Dannelli v. Danelli's Adm'r, 67 Ky. 51 (4 Bush 1868); see also Townes v. Durbin, 60 Ky. 352 (3 Met. 1860) (where there is a marriage between parties in a foreign country, that marriage, as a matter of contract, will be held equally valid everywhere). "The main reason which has induced the court to treat foreign marriages as legal . . . has been for the sake of preserving the legitimacy of the children.” Sneed v. Ewing, 28 Ky. 460 (5 J.J. Marsh 1831). This precedent is consistent with the Kentucky statutes, which provide that when reviewing child custody and divorce determinations made in foreign countries, the courts of Kentucky will treat a foreign country “as if it were a state of the United States.” See KY. REV. STAT. ANN. § 403.806(a) (2006). Once the celebration of a marriage is shown, “the contract of marriage, the capacity of parties, and, in fact, everything necessary to the validity of the marriage in absence of proof to the contrary will be presumed.” See Mayfield v. Mayfield, No. 2004-CA-000340-MR, 2005 WL 497263, at *1 (Ky. App. Ct. Mar. 4, 2005). Therefore, we believe that Kentucky would recognize a marriage from the Netherlands Antilles.

However, we do not believe that NH has provided sufficient marriage documentation to allow SSA to change her name. The POMS has indicated that the term “marriage documents” refers to the means by which a marriage record is documented (i.e., marriage certificates and souvenir certificates). POMS RM 00203.200(H)(3). “Marriage records” refer to marriages that are certified/recorded by the custodian of record. See id. In this case, NH has provided a translation of her marriage certificate, but not the actual certificate itself. In addition, NH has provided what appears to be a document from the Bonaire Civil Registry & Elections department; however, a visual inspection of this document reveals that this is not the actual Netherlands Antilles marriage certificate. We believe that the relevant POMS provisions require, at the very least, a copy of the actual marriage certificate or marriage register. Therefore, the name change cannot be processed on the basis of the translation of the marriage certificate alone, but can be processed if NH produces the actual marriage certificate or marriage register, in addition to its translation. See id. This marriage documentation must also satisfy the identity requirements set forth in POMS RM 00203.210(A).

CONCLUSION

For the foregoing reasons, it is our opinion that SSA cannot process the name change until NH furnishes her actual marriage certificate or other name change documentation in accordance with POMS RM 00203.200(H)(3) and RM 00203.210(A).

Mary A. S~
Regional Chief Counsel
By: __________________
Brian S~
Assistant Regional Counsel

B. PR 06-252 Foreign Marriage Documents as Evidence of Name Change for Purposes of Securing Replacement Social Security card for a Kentucky Resident.

DATE: August 7, 2006

1. SYLLABUS

SSA can process the name change because the State of Kentucky acknowledges a foreign marriage regardless of the country of origin, and the wife is taking the husband's last name.

2. OPINION

QUESTION

You have asked whether documents purporting to be marriage documents from a foreign country can constitute sufficient evidence of a name change for a resident of Kentucky to allow the Social Security Administration (SSA) to issue a replacement Social Security card that reflects the name change.

ANSWER

Yes, SSA can process a name change for Kentucky residents based on foreign marriage documents provided the document(s) appear to be properly formalized and SSA has no information that would rebut the presumption that the purported marriage is valid and provided the applicant provides sufficient documentation of identity.

BACKGROUND

The Intelligence Reform Terrorist Provision Act (IRTPA) of 2004 (Pub. L. 108-458), which became effective in December 2005, required changes to the way SSA issues replacement Social Security cards. Some of the changes relate to the documentation required to permit SSA to issue a new card with different name. Recent regulations published to address IRTPA issues clarify that reference to a change of the name on the Social Security card is a "verified legal change[s] to the first name and/or surname." 20 C.F.R. §§ 422.103 and 422.110. The preamble to the regulations explained that SSA added the terms "legal" and "verified" to the parenthetical statement that describes name changes to provide a more precise description of the kind of name change we intended as a basis for a replacement card. See "Social Security Number (SSN) Cards; Limiting Replacement Cards," 71 Fed. Reg. 43,054, 43,055 (Jul. 31, 2006). Pursuant to POMS provisions published over the last several months, you have been forwarding numerous requests for opinions about whether Kentucky would accept purported marriage documents from various countries as a basis for permitting a name change. Since, as explained in greater detail below, we have determined that whether Kentucky would accept foreign marriage documents as a basis for a name change, we are providing this guidance to help you and field office staff process these cases without the need to refer each one for a legal opinion. It is our understanding that once this opinion is published as a precedent, you will only need to refer unusual questions not covered below. Of course, we will be delighted to assist you with those unusual cases as they arise.

DISCUSSION

When applying for a replacement SSN card to show a name change, the applicant generally must submit documentation of the name change and his or her identity. The name change documentation may be either a court order or a marriage document. The name-change document should identify the applicant by both the old and new names. In addition, the applicant must submit documentation showing a description or photograph, or biographical information that can be compared to SSA's number holder identification data. The description, photograph, or biographical data may be either on the name change document itself, or on two other identity documents (one showing the prior name and one showing the current name). See POMS RM 00203.210(A)(1). If the state where the applicant resides would acknowledge the foreign marriage, and the wife is taking the husband's last name (or wants to take a new last name that hyphenates both partners' surnames), SSA can process the name change request. See POMS RM 00203.210(B)(1)(a), (c), (D)(8).

A review of Kentucky precedent reveals that the state recognizes foreign marriages. "[E]specially in Kentucky it is the settled law that a marriage valid in the country where celebrated is to be held valid in other countries," and Kentucky courts will sustain the validity of a marriage if legal at the place of celebration. See Dannelli v. Danelli's Adm'r, 67 Ky. 51 (4 Bush 1868); see also Townes v. Durbin, 60 Ky. 352 (3 Met. 1860) (where there is a marriage between parties in a foreign country, that marriage, as a matter of contract, will be held equally valid everywhere). "The main reason which has induced the court to treat foreign marriages as legal . . . has been for the sake of preserving the legitimacy of the children." Sneed v. Ewing, 28 Ky. 460 (5 J.J. Marsh 1831). This precedent is consistent with the Kentucky statutes, which provide that when reviewing child custody and divorce determinations made in foreign countries, the courts of Kentucky will treat a foreign country "as if it were a state of the United States." See Ky. Rev. Stat. Ann. § 403.806(a) (2006). Once the celebration of a marriage is shown, "the contract of marriage, the capacity of parties, and, in fact, everything necessary to the validity of the marriage in absence of proof to the contrary will be presumed." See Mayfield v. Mayfield, No. 2004-CA-000340-MR, 2005 WL 497263, at *1 (Ky. App. Ct. Mar. 4, 2005). Therefore, an indication of an individual's status as a divorcee or a divorce in another state or foreign country should not affect the request for a name change.

Kentucky, however, will not recognize instances where the marriage is against the public policy of the state. See Gilbert v. Gilbert, 122 S.W.2d 137, 139 (Ky. Ct. App. 1938). For instance, Kentucky prohibits marriages between members of the same sex; between more than two persons; when there is a husband or wife living from whom the person marrying has not been divorced; and when a person is under 16 years of age at the time of the marriage. Ky. Rev. Stat. Ann. § 402.020. Furthermore, Kentucky prohibits those marriages the state deems incestuous. Ky. Rev. Stat. Ann. § 402.010. Kentucky also allows its courts to declare void any marriage obtained by force or fraud. Ky. Rev. Stat. Ann. § 402.030.

Furthermore, foreign marriage documentation is adequate under Kentucky law to validate a legal name change. Under Kentucky law, any person at least 18 years of age may have his/her name changed by the district court of the county in which he resides. See Ky. Rev. Stat. Ann. § 401.010. This statute does not abrogate a person's common-law right to informally change his or her name by public declaration. See Burke v. Hammonds, 586 S.W.2d 307, 308 (Ky. Ct. App. 1979). When changing an individual's name on a driver's license, Kentucky requires that, "[u]pon marriage, a woman applying for an operator's license or a color photo personal identification card shall provide the circuit clerk with her marriage license and complete an affidavit form provided by the circuit court clerk." See Ky. Rev. Stat. Ann. § 186.412(17). She then may choose whether to use her husband's last name, retain her maiden name, and use her maiden name hyphenated with her husband's last name. Ky. Rev. Stat. Ann. § 186.412(17)(a)-(c). Likewise, whenever the name of any person who has applied for or obtained a certificate of registration or title for a vehicle has changed by marriage, that person shall notify the county clerk of the county of residence of the new name. See Ky. Rev. Stat. Ann. § 186A.235(2).

Given the liberal state standard for justifying a name change, we believe that Kentucky's standard for initial proof of a marriage would be minimal when offered for the purpose of a name change. So long as the marriage does not violate the state's public policy, we can find no reason that the state of Kentucky would not recognize a foreign marriage document(s) as adequate to support a name change or satisfy SSA's requirement for documentation of the change of name.

There are a number of scenarios to consider when considering POMS application to a name change request based on foreign marriage documentation. In addition to the marriage document, POMS RM 00203.210(A)(1)also requires biographical information that can be compared to the applicant's numident data. If the marriage event occurred within the last two years, POMS RM 00203.210(A)(1)requires that the marriage document contain either a photograph of the person or biographical information (information on age, date of birth or parents' names) that can be compared to the NH's numident data. If the marriage document indicates that the marriage occurred within the last two years and contains sufficient biographical data to compare to the numident data, SSA can process the name change. However, if the marriage event occurred over two years ago or the marriage document does not contain sufficient biographical information, POMS RM 00203.210(A)(1)requires that the applicant provide two identifying documents, one with the old name and one with the new name in accordance with the list of appropriate identifying documentation found in POMS RM 00203.200(e). Therefore, in this scenario, the name change cannot be processed on the basis of the marriage document(s) alone, but can be processed if the NH produces the other identifying documents that comply with POMS. Please note, if an applicant for name change is not an United States citizen, please follow the procedures listed in POMS RM 00203.210(C)and POMS RM 00203.200(H)(2)(d).

CONCLUSION

For the foregoing reasons, we believe SSA can process the name change based on a foreign marriage document(s) provided the applicant's name change request complies with the law of Kentucky and the request is processed consistent with POMS.

Mary A. S~
Regional Chief Counsel
By: __________________
Brian S~
Assistant Regional Counsel

C. PR 06-242 Jamaican Marriage Certificate Used as Evidence For a Legal Name Change For a Replacement SSN Card For a Kentucky Resident - Leanne M. M~

DATE: August 3, 2006

1. SYLLABUS

SSA can process the name change because the State of Kentucky acknowledges a foreign marriage in Jamaica, and the wife is taking the husband's last name.

2. OPINION

QUESTION

You asked whether a document appearing to be a Jamaican marriage certificate constituted valid evidence of a name change, such that the former LeAnne M. W~ (Applicant) a Kentucky resident, could be issued a replacement Social Security card with the name LeAnne M. M~.

ANSWER

Yes, provided the data in the marriage document is consistent with the numident data.

BACKGROUND

Applicant, a U.S. citizen and Kentucky resident, holds an SSN card in the name of LeAnne M. W~, her birth name. Applicant supplied what appears to be a copy of the marriage certificate for a marriage performed on January 13, 2006, in Westmoreland Parish, Jamaica. The minister and two witnesses signed the certificate and it was notarized by the Registrar General and Keeper of The Records. The document indicates that LeAnne M. W~ married Justin B. M~ and reveals the couple's ages, occupations, and their fathers' names.

DISCUSSION

When applying for a replacement Social Security card due to a name change, an applicant generally must submit documentation of the name change and his or her identity. Pursuant to POMS RM 00203.210(A)(1), an applicant may submit one legal name change document that identifies the applicant by both the old and new names (e.g., a court order for a name change or marriage document). The document must also show either (1) a description or photograph, or (2) biographical information that can be compared to SSA's number holder identification (Numident) data. Id. The description, photograph, or biographical data may be either on the name change document itself, or on two other identity documents (one showing the prior name and one showing the current name). Id. If the name change is because a bride wants to take her husband's last name, SSA may accept the marriage document as a legal name change for the bride if the new name can be derived from the marriage document; even if the marriage document only shows each partner's first names, the bride's prior surname, and husband's surname. See POMS RM 00203.210(B)(1)(a). The marriage document can be accepted as evidence of identity for both the old and new names when it also includes biographical information (e.g., date of birth, age, or parents' names) and/or physical information (e.g. physical description, photograph). Id.; see POMS RM 00203.200(G)(2).

SSA POMS RM 00203.210(B)(1)(d)further provides, “for a U.S. resident, a name change based on a foreign marriage depends on the laws of the State where he/she resides . . . If the State of residence recognizes the [foreign] marriage, assume it applies its own State law for a legal name change.” If the state where the applicant resides would acknowledge the foreign marriage, and the wife is taking the husband's last name, SSA can process the name change request. See POMS RM 00203.210(D)(8).

A review of Kentucky precedent reveals that the state recognizes foreign marriages. “[E]specially in Kentucky it is the settled law that a marriage valid in the country where celebrated is to be held valid in other countries,” and Kentucky courts will sustain the validity of a marriage if legal at the place of celebration. See Dannelli v. Danelli's Adm'r, 67 Ky. 51 (4 Bush 1868); see also Townes v. Durbin, 60 Ky. 352 (3 Met. 1860) (where there is a marriage between parties in a foreign country, that marriage, as a matter of contract, will be held equally valid everywhere). “The main reason which has induced the court to treat foreign marriages as legal . . . has been for the sake of preserving the legitimacy of the children.” Sneed v. Ewing, 28 Ky. 460 (5 J.J. Marsh 1831). This precedent is consistent with the Kentucky statutes, which provide that when reviewing child custody and divorce determinations made in foreign countries, the courts of Kentucky will treat a foreign country “as if it were a state of the United States.” See KY. REV. STAT. ANN. § 403.806(a) (2006).

While there is no Kentucky statute or case that explicitly specifies what is required to prove the validity of a marriage from a foreign country, Kentucky precedent has very minimal standards to establish a marriage. See Mayfield v. Mayfield, 2005 WL 497263 (Ky. App. Ct. March 4, 2005) (“Marriage is favored by the law; and . . . when a marriage ceremony is shown to have been performed the validity of the marriage, in the absence of proof to the contrary, will be presumed, and that the presumption of legality is one of the strongest known to the law”).

When the state recognizes a foreign marriage, POMS RM 00203.210(B)(1)(d)says SSA should look to the state's law on legal name changes. Under Kentucky law, any person at least 18 years of age may have his/her name changed by the district court of the county in which he resides. See KY. REV. STAT. ANN. § 401.010. This statute does not abrogate a person's common-law right to informally change his or her name by public declaration. See Burke v. Hammonds, 586 S.W.2d 307, 308 (Ky. Ct. App. 1979). When changing an individual's name on a driver's license, Kentucky requires that, “[u]pon marriage, a woman applying for an operator's license or a color photo personal identification card shall provide the circuit clerk with her marriage license and complete an affidavit form provided by the circuit court clerk.” See KY. REV. STAT. ANN. § 186.412(17). She then may choose whether to use her husband's last name, retain her maiden name, or use her maiden name hyphenated with her husband's last name. Id. at § 186.412(17)(a)-(c). Likewise, whenever the name of any person who has applied for or obtained a certificate of registration or title for a vehicle has changed by marriage, that person shall notify the county clerk of the county of residence of the new name. See id. at § 186A.235(2).

In this case, Ms. M~, a U.S. citizen over 18 years of age, has submitted her marriage certificate as evidence to support the request to change her name on her SSN card. POMS RM 00203.210(A)(1)also requires documentation of identity separate from documentation of the name change. The marriage certificate here states Ms. M~' former last name of W~, her husband's full name, and her and her husband's ages, occupations, and fathers' names. This information would normally be sufficient to process the name change solely on the basis of the Jamaican marriage certificate. See POMS RM 00203.210(A)(1).

CONCLUSION

For the foregoing reasons, we believe SSA can process Ms. M~' name change on the basis of the Jamaican marriage certificate, provided the biographical data on the marriage document is consistent with SSA's numident information.

Mary A. S~
Regional Chief Counsel
By: __________________
Laurie R~
Assistant Regional Counsel

D. PR 06-239 Icelandic Marriage Certificate Used as Evidence For a Legal Name Change For a Replacement SSN Card For a Kentucky Resident - Sherry G. O~

DATE: August 3, 2006

1. SYLLABUS

SSA can process the name change because the State of Kentucky acknowledges a foreign marriage in Iceland, and the wife is taking the husband's last name.

2. OPINION

QUESTION

You asked whether a document appearing to be an Icelandic marriage certificate constituted valid evidence of a name change, such that the former Sherry S. C.~ a Kentucky resident, could be issued a replacement Social Security card with the name Sherry G. O~.

ANSWER

Yes, provided Ms. O~ furnishes other valid evidence of identity that satisfies POMS RM 00203.210, “Changing Numident Name Data.”

BACKGROUND

Applicant, a U.S. citizen and Kentucky resident, holds an SSN card in the name of Sherry S. C~. Applicant supplied what appears to be a copy of the marriage certificate for a marriage performed on June 21, 2003 in Lagafellskirkja, Iceland. The minister and two witnesses are listed on the certificate, which is not in English, but no data is given about the couple. The document is signed and stamped, apparently by an Icelandic official.

DISCUSSION

When applying for a replacement Social Security card due to a name change, an applicant generally must submit documentation of the name change and his or her identity. Pursuant to POMS RM 00203.210(A)(1), an applicant may submit one legal name change document that identifies the applicant by both the old and new names (e.g., a court order for a name change or marriage document). The document must also show either (1) a description or photograph, or (2) biographical information that can be compared to SSA's number holder identification (Numident) data. Id. The description, photograph, or biographical data may be either on the name change document itself, or on two other identity documents (one showing the prior name and one showing the current name). Id. If the name change is because a bride wants to take her husband's last name, SSA may accept the marriage document as a legal name change for the bride if the new name can be derived from the marriage document; even if the marriage document only shows each partner's first names, the bride's prior surname, and husband's surname. See POMS RM 00203.210(B)(1)(a). The marriage document can be accepted as evidence of identity for both the old and new names when it also includes biographical information (e.g., date of birth, age, or parents' names) and/or physical information (e.g. physical description, photograph). Id.; see POMS RM 00203.200(G)(2).

SSA POMS RM 00203.210(B)(1)(d)further provides, “for a U.S. resident, a name change based on a foreign marriage depends on the laws of the State where he/she resides . . . If the State of residence recognizes the [foreign] marriage, assume it applies its own State law for a legal name change.” If the state where the applicant resides would acknowledge the foreign marriage, and the wife is taking the husband's last name, SSA can process the name change request. See POMS RM 00203.210(D)(8).

A review of Kentucky precedent reveals that the state recognizes foreign marriages. “[E]specially in Kentucky it is the settled law that a marriage valid in the country where celebrated is to be held valid in other countries,” and Kentucky courts will sustain the validity of a marriage if legal at the place of celebration. See Dannelli v. Danelli's Adm'r, 67 Ky. 51 (4 Bush 1868); see also Townes v. Durbin, 60 Ky. 352 (3 Met. 1860) (where there is a marriage between parties in a foreign country, that marriage, as a matter of contract, will be held equally valid everywhere). “The main reason which has induced the court to treat foreign marriages as legal . . . has been for the sake of preserving the legitimacy of the children.” Sneed v. Ewing, 28 Ky. 460 (5 J.J. Marsh 1831). This precedent is consistent with the Kentucky statutes, which provide that when reviewing child custody and divorce determinations made in foreign countries, the courts of Kentucky will treat a foreign country “as if it were a state of the United States.” See KY. REV. STAT. ANN. § 403.806(a) (2006).

While there is no Kentucky statute or case that explicitly specifies what is required to prove the validity of a marriage from a foreign country, Kentucky precedent has very minimal standards to establish a marriage. See Mayfield v. Mayfield, 2005 WL 497263 (Ky. App. Ct. March 4, 2005) (“Marriage is favored by the law; and . . . when a marriage ceremony is shown to have been performed the validity of the marriage, in the absence of proof to the contrary, will be presumed, and that the presumption of legality is one of the strongest known to the law.”).

When the state recognizes a foreign marriage, POMS RM 00203.210(B)(1)(d)says SSA should look to the state's law on legal name changes. Under Kentucky law, any person at least 18 years of age may have his/her name changed by the district court of the county in which he resides. See KY. REV. STAT. ANN. § 401.010. This statute does not abrogate a person's common-law right to informally change his or her name by public declaration. See Burke v. Hammonds, 586 S.W.2d 307, 308 (Ky. Ct. App. 1979). When changing an individual's name on a driver's license, Kentucky requires that, "[u]pon marriage, a woman applying for an operator's license or a color ph