In connection with a claim for benefits under title II of the Social Security Act,
you asked the Regional Attorney, New York, for advice on whether or not the Mexican
State of Nuevo Leon would recognize as valid the common-law marriage which took place
in Tamaulipas, Mexico. The Regional Attorney submitted the issue to us since we have
jurisdiction over matters relating to foreign law questions.
The relevant facts of this claim indicate that, in May of 1943, the claimant and the
wage earner started to live together as husband and wife without benefit of a civil
or religious ceremony. The couple lived in Matamoros, Tamaulipas, Mexico, from 1944
through 1961. During that time, four children was born of this relationship. Their
births were recorded in the local civil registry at Valle Hermoso, Tamaulipas. At
the time that the claimant filed for her application, she and the wage earner were
residing in the State of Nuevo Leon, Mexico.
Whether the woman claimant is the common-law wife of the decreased wage earner for
purpose of receiving title II benefits is an issue which in this claim depends on
D.C. law and on foreign law.
D.C. Law
D.C. law is applicable because the wage earner was not domiciled "in any State" (as
that phrase is used under 216(h)(1)(A)) at the time of filing the application. The
office which has jurisdiction over matters involving the interpretation of D.C. Law
as applied by D.C. courts is the Philadelphia Regional Attorney's office. Informally,
we were advised by that office that D.C. courts would look to Nuevo Leon or Tamaulipas
to resolve the issue of a common- law marriage. Since we have addressed the Laws of
Tamaulipas, we do not believe it is necessary to discuss the law of Nuevo Leon. We
are sending our opinion on the foreign issue to that office for its opinion on the
D.C. law issue. That office will respond directly to you.
Foreign Law
Your question on whether Nuevo Leon would recognize a common-law marriage established
in Tamaulipas assumes that the Laws of Tamaulipas recognizes a common-law marriage.
As stated above, we address here only the laws of Tamaulipas. To respond to your question,
we asked the Library of Congress for assistance. The Law Library sent us a report
which discusses the laws of Tamaulipas. The law on marriage in 1944 in Tamaulipas
is governed by the Civil Code of 1944 (effective on November 1, 1940). The report
provides a translation of article 70 and article 2138 (and 2149).
"Art. 70. For all legal effects, the union, cohabitation, and continued sexual relations
of one man with one woman shall be considered marriage."
"Art. 2138. The registration of birth, marriages, divorces, and deaths of persons
is the duty of the office of the Civil Registry."
(The following quote was, we believe, inadvertently included in the report as part
of article 2138. We believe it is the language of article 2149.)
"(Art. 2149). Persons who wish to register their marriage in the office of the Civil
Registry shall appear before the local office with the following information:
-
1.
Name, surname, age, civil status, profession, and domicile of the contracting parties;
-
2.
Names of three witnesses who may attest to the ability of the applicants to contract
marriage in accordance with the provisions of the law;
-
3.
If the applicants are over 14 years of age and under 18, the authorization of their
parents or guardians must be furnished;
-
4.
A health certificated (must be furnished)."
Based on the above articles the report concludes that "although the law of Tamaulipas.
. . . acknowledge(s) the existence of unions outside marriage bonds, the registration
of these unions in the office of the Civil Registry (is) required in order to grant
them the status of a valid marriage." (Emphasis added) According to the report, if
there is no registration of the union, the union may not produce any civil effects;
if there is a registration of the union, civil effects are produced.
The report centers around the issue of registration. We, however, feel constrained
to disagree with the report on this issue.
The report reads into article 2138 (or 2149) a mandatory requirement of registration
which is not present in that law. Article 2138 (or 2149) does not require registration
of a marriage. The clear language of the law merely states that the registration of
a marriage is the duty of Civil Registry office. It also states that a person who
wishes to register a marriage must comply with certain procedures. The language of
this article does not mean, and may not be construed to mean, that a marriage must
be registered in the Civil Registry. The basis for the report's conclusion is simply
not in the law which is cited. Informally over the telephone and in person, we discussed
our concerns with the Legal Specialist at the Law Library and he stated that article
2138 (and article 2149) was the legal basis for his interpretation of the registration
requirement. If, under the laws of Tamaulipas, there exist legal authority which required
registration of the union under article 70, we would, of course, revise our opinion
accordingly.
Prior OGC opinions (dating back to 1944), which have considered the validity of a
common-law marriage under article 70 of the Tamaulipas Civil Code of 1940, have not
made registration a mandatory requirement to establish a valid common-law marriage.
In Jacinto G. H. September 18, 1944, our opinion notes that article 70 abolishes "the
strict requirement for consummating a valid marriage in the State of Tamaulipas .
. . " Also, that opinion states that, whereas "certain requirements still remain for
recording a marriage, . . . it appears that whether or not the marriage is recorded
is discretionary with the parties and that recording of the marriage is not a necessary
requisite to its validity." Emphasis added. See OGC opinions re: Common-Law Marriages—Tamaulipas,
3/15/54; Allen R. 0 , 10/20/61; Juan M 2/6/62; and Manuel E , 8/2/62. But see Jose
J , 8/5/76.
Prior opinions from the Law Library also support the position that registration is
not a requirement under the laws of Tamaulipas. In May 28, 1962, Mr Lawrence K , Law
Librarian, wrote the following: "As you have already been informed in the past, the
Civil Code of Tamaulipas provides for consensual marriages, with no formal ceremony,
making these unions valid whether registered or not." Emphasis added.
Finally, the translation of the Legislative "Statement of Motives "Upon Adopting the
Civil Code of Tamaulipas 1940" clearly implies that registration is not required.
See section A of attachment.
We note that a decision by the Supreme Count of Mexico holds that article 70 is contrary
to the principles of article 130 of the Mexican Federal Constitution and, therefore,
that article 70 is unconstitutional. We are advised, however, by the law library that
this decision does not have precedent force. See discussion on this issue from Hispanic
Law Division, Law Library, Library of Congress, in section B of attachment.
Based on the above, we believe that registration of marriage is not required under
article 70 of the Tamaulipas Civil Code. Under the laws of Tamaulipas in force from
November 1, 1940 to October 23, 1961 (inclusive), the union, cohabitation, and continued
sexual relations of one man with one woman shall be considered marriage for all legal
effects. our opinion re: Jose J , is modified to the extent that it requires registration.
One factual question remains for SSA to Decide: namely, whether there is adequate
proof to establish that the claimant and the wage earner satisfy the requirements
of article 70 of the Tamaulipan Civil Code of 1940.
ATTACHMENT
A. Legislative "Statement of Motives" Upon Adopting the Civil Code of Tamaulipas 1940
(R. Aortas U , Matrimonio par Comportamiento (thesis 137-36; Ed, Stylo, Mexico City,
1955)
"Marriage is not defined (by the code) as a contract in the sense that the law generally
treats this latter institution. It is rather an actual situation capable of producing
consequences in the field of law regardless of formalities. . . .
"The elimination of formalities, it could be argued, puts marriage in the category
of unions advocated by supporters of so-called "free love," but nothing could be further
from the truth. . . .
"(It is clear that) the intention of the drafters was to level off the scale of justice
recognizing de facto unions as having the ability to produce legal consequences formally
acknowledged to marriages formally celebrated."
B. Effects of the Decisions of the Mexican Supreme Court on the law of Tamaulipas,
(Report of December 1977 by Law Library, Library of Congress, to INS, Department of
Justice)
"Under Mexican law, as a general principle, the doctrine of stare decisis does not
operate, There is, however, a limited field in which precedent is binding on all lower
courts under certain conditions set by the Law of Amparo of 1936. To this effect,
article 192, paragraph 2 of this law defines this fixed precedent as follows:
'Final decisions of the Supreme Court of Justice en banc constitute jurisprudencia
(fixed precedents), provided that the judgments are concurred in by no less than 14
justices and that they were followed in five final judgments without interruption
by decision contradictory thereto. . . .
"Furthermore, the Constitution, as amended on December 30, 1950, provides as follows:
'All controversies mentioned in article 103 (that is, all controversies that must
be decided by the federal courts) shall be subject to the legal forms and procedure
prescribed by law, on the following bases:
'II) The judgement shall always be such that it affects only private individuals,
being limited to making my general declaration as to the law or act on which the complaint
is based.'
"Therefore, the decisions by the Supreme Court cited in this report are binding only
on the parties before the court, and the declaration of unconstitutionality by the
court did not have the effect of automatically invalidating the provisions of article
70 of the former civil code of Tamaulipas, while it was in force."