PR 03120.288 Peru
A. PR 81-007 Max W~, Deceased — Social Security No. ~ Ceremonial Marriage—Perm
DATE: June 3, 1981
Under Peruvian law, the participation in a marriage ceremony meeting the formal requirements of the Civil Code and the Registration thereof is required for full legal recognition. In absence of registration, the validity of a marriage can be established on the basis of "constant possession of marital status." This exception is available to those who marry under religious formalities but who fail to register. However, the marriage must be submitted to a competent Peruvian court for validation and an order of registration. (W~, Max, Deceased — ~— GC:SS (H~) to SSA — 6/3/81,)
Under Peruvian intestacy law, a woman cannot inherit as a spouse unless she establishes herself as the legal wife of the deceased. (W~ Max, Deceased—~—GC:SS (~ to SSA- 6/3/81)
Your memorandum presents the question of whether, according to Peruvian law, the claimant in the subject case was the legal spouse of the deceased wage earner for purposes of entitlement to surviving spouse's benefits.
The pertinent facts of the case, as they appear from the subject memorandum and attached claim file, are as follows: The wage earner, Max W~ , a U.S. citizen, became a resident of Lima, Peru in April or May of 1960. His wife by an earlier marriage had died in 1958. On November 12, 1961, he married Friedel W~, a Peruvian citizen. The marriage was a religious ceremony performed by a rabbi. No civil ceremony was performed. Mr. W~ died in Peru in 1978. Ms. W~ states that she and Mr. W~ believed that a birth certificate was necessary to obtain a civil marriage and Mr. W~ did not have one. He was born in a small town in Poland which was destroyed during World War II, and his birth certificate was lost. The file contains copies of the religious marriage certificate issued at the time of the event, supposedly of a "souvenir type," and statements of witnesses at the marriage ceremony. The Death Certificate and Death Register refer to Mr. W~ as "single" and "divorced," respectively. Ms. W~ states that because her own synagogue considered her to be married, she and her husband were not concerned that the civil authorities did not consider the marriage to be legal. Ms. W~ apparently lived with Mr. W~ until his death and held herself out to the public as his wife.
We requested advice from the Hispanic Law Division of the Library of Congress and received the attached response concerning the validity of the subject marriage under the laws of Peru. Under Peruvian law, parties wishing to enter into a legal marital rela- two witnesses who have known the couple for at least three years, and (2) produce birth, health and residence certificates and a statement made under oath that neither party is affected by any of the legal impediments to marriage listed in the Peruvian Civil Code (The Code). l_/ Upon fulfillment of the necessary requirements and completion of the ceremony, the marriage documents must be recorded in the Civil Registry. Noncompliance with this latter formality renders the marriage legally ineffective. 2_/However, the Code also allows a party to validate an existing marriage by demonstrating the "constant possession of marital status." 3_/ While the matter is not free from doubt, the Code has been interpreted to allow those who married under religious formalities, or who did not secure a marriage certificate for other reasons, to establish the existence of their marriage with- out producing the marriage certificate. 4_/ Nevertheless, if the marriage has not been recorded, the Code indicates that legitimation requires the question to be submitted for judicial approval and an order of registration. 5_/ As no court has sanctioned the subject marriage, it cannot be considered valid under Peruvian law.
Under Peruvian intestacy laws, a woman cannot inherit as a spouse unless she establishes herself as a legitimate wife of the deceased. Thus, the claimant herein is not entitled under the "deemed" marriage provisions of section 216(h)(1)(i) of the Social Security Act, since entitlement therein requires that the claimant "have the same status with respect to the taking of intestate personal_7 property as a wife . . . of such insured individual . . ."
1/ Balarezco G~, Codigo Civil Peruano, [C.Civ.], [4th Ed. Lima, Ciencias Economicas, 1977], art. lO1.
2/ C. Civ. art. 126 and 127.
3/ C. Civ. art. 127 and 131.
4/ C~ - C~ Derecho Familiar Peruano, 98, 99 and 105.
5/ Supra., note 3
6/ C. Civ. art. 760 to 772.