On February 3, 2006, you asked us to advise you whether a marriage that was conducted
in the Dominican Republic could be the basis for a legal-name change for a resident
of West Virginia.
Based on our review of the facts of this case and our research of the relevant West
Virginia statutes and case law, we have determined that the Dominican Republic marriage
can be the basis for a legal-name change in West Virginia.
In your request, you indicated that the number holder, Lindsey M.~ S~, was married
in Higuey, Dominican Republic, on June 15, 2005. Ms. S~ date of birth is November
3, 1982, and her spouse, James R.~ E~, has a date of birth of April 19, 1973. Therefore,
Ms. S~ was twenty-two years of age at the time of the marriage and her spouse was
thirty-two years of age. Ms. S~ contacted the Social Security Administration and requested
that she be allowed to change her legal-name to "Lindsey M.~ E~" based on this marriage.
West Virginia recognizes ceremonial marriages as a basis for a legal-name change and
a marriage certificate would be recognized as proof that a legal-name change has occurred.
The Clerk of the County which issues the marriage license must record the marriage.
W. Va. Code § 48-2-203 (2005). The State of West Virginia does not have a statute
that expressly articulates what surname can result from a marriage, although West
Virginia Code of State Rule § 91-4-6.1c (2005) does provide the variations of a person's
name that can be listed on a state driver's license or identification card.
West Virginia's statutes and case law do not directly address whether a marriage in
another country would be considered a basis for a legal-name change. However, West
Virginia does have a statute that addresses the consequences when an individual marries
out of state to evade the law. It can be inferred, by reading this statute, that a
marriage in a foreign country would be considered a valid marriage and, therefore,
can be a basis for a legal-name change.
W. Va. Code § 48-2-602 provides that if a resident of West Virginia marries in another
state or country, the marriage is governed by the same law, in all respects, as if
it had been solemnized in West Virginia if, at the time of the marriage: the marriage
would have been in violation of W. Va. Code § 48 3 103 if performed in West Virginia;
the person intended to evade the law of West Virginia; and the person intended to
return and reside in West Virginia. West Virginia case law has explained that this
statute is nothing more than a statutory extension of the common-law rule that a state
is not required to recognize a marriage performed in another state which is repugnant
to the former state's statutes or public policy. See State v. Austin, 234 S.E.2d 657 (W.Va. 1977).
W. Va. Code § 8-3-103 addresses marriages that are considered voidable and states
that the marriages are void from the time that they are so declared by a judgment
order of nullity. Some examples of voidable marriages include marriages that are prohibited
by law on account of either of the parties having a wife or husband of a prior marriage,
when the prior marriage has not been terminated by divorce, annulment or death; marriages
that are prohibited by law on account of consanguinity or affinity between the parties;
and marriages solemnized when either of the parties was an insane person, was incapable,
because of natural or incurable impotency of the body, of entering into the marriage
state, or was under the age of consent. It must be emphasized, however, that a foreign
marriage that violates West Virginia law, even if the person intended to evade such
law, is only "voidable" and is not considered "void" until after a judgment order of nullity is issued. Id. In other words, even if a foreign marriage could be considered a voidable marriage
under the laws of West Virginia, that marriage can still be considered a basis for
a legal-name change, absent any evidence that the marriage had been voided by a judgment
Further support for the inference that West Virginia would accept a foreign marriage
as a basis for a legal-name change is found in the West Virginia divorce statute,
which provides jurisdiction for a divorce, even if the marriage was conducted in another
state or in a foreign country. Specifically, W. Va. Code § 48-5-105 provides that
an individual can maintain a divorce action in West Virginia, even if they were not
married in West Virginia, if one of the parties is a bona fide resident of West Virginia
and the residency has continued uninterrupted through the one-year period immediately
preceding the filing of the divorce action. Again, the inference from this statute
is that West Virginia will recognize a foreign marriage as a valid marriage and, therefore,
this marriage can be the basis for a legal-name change.
W. Va. Code § 48-2-204 provides that individuals who marry in a state other than West
Virginia "may" register their marriage with the county clerk in the West Virginia
county in which one of the parties resides. However, this statute only addresses a
marriage conducted in other states and does not specifically address a marriage in
another country. Furthermore, such registration is not a requirement and, therefore, the Social Security Administration should not require
an individual to register their foreign marriage with a county clerk in West Virginia.
The County Clerk's Office of Kanawha County advised our office by telephone that they
did not even register marriages from foreign countries. The County Clerk's Office
of Putnam County advised our office by telephone that they would accept registration
of a foreign marriage, but the registration would go into the "miscellaneous registration
book" and would not be listed in the "marriage registration book" because the marriage
was conducted in a foreign country. They also emphasized that it was not a requirement
to register a marriage from a foreign country and stated that a foreign marriage would
be considered a basis for a legal-name change.
In addition, W. Va. Code § 48-2-603 provides that West Virginia will not give effect
to a same sex marriage conducted in another country or state, and, therefore, a same
sex marriage cannot be the basis for a legal-name change.
Finally, the West Virginia Department of Transportation, Division of Motor Vehicles,
requires that an applicant for a driver's license or identification card correct his
or her name with the Social Security Administration before a driver's license or identification
card will be issued in the desired name. The Division of Motor Vehicles also requires
a name change to be substantiated with a birth certificate, marriage certificate,
divorce decree, or court order. See www.wvdot.com; W. Va. Code R. § 91-4-9 (2005).
The Division of Motor Vehicles advised our office by telephone that they would accept
a "certified" Dominican Republic marriage certificate to substantiate a name change.
The Division of Motor Vehicles further explained that a marriage certificate that
is prepared in a foreign language would have to be translated into English and this
translation is then "certified" by a notary.
For the reasons stated above, it is our opinion that based on the evidence provided
to our office, Lindsey M.~ S~' marriage in the Dominican Republic should be considered
a basis for a legal-name change. In this case, there does not even appear to be an
issue as to whether this is a "voidable" marriage, as both Lindsey S~ and her spouse
were of the legal age of consent to marry in West Virginia and the Dominican Republic
and there is nothing in the evidence presented to this office that shows either party
was previously married and had failed to terminate the prior marriage. Furthermore,
the marriage does not involve a same sex marriage.
Ms. S~, however, should be required to provide the identity documents required in
RM 00203.210 to effectuate the legal-name change.
Donna L. C~
Regional Chief Counsel
Assistant Regional Counsel