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
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.