TN 18 (12-23)

PR 03130.275 Panama

 

A. PR 22-064 Validity of Marriage – Common Law Marriage in Panama

Date: December 2, 2021

1. Syllabus

Whether A~ (claimant) and R~, number holder (NH), were validly married, or may be deemed married, for the purpose of determining Claimant’s entitlement to Title II widow’s benefits under the Social Security Act (Act).

2. Opinion

We believe there is not sufficient evidence to determine that claimant and NH were validly married or may be deemed married. Accordingly, the agency could not find that claimant is NH’s widow or deemed widow for the purpose of Title II benefits under the Act.

BACKGROUND

Claimant filed a claim for widow’s benefits under Title II on the record of NH. In her SSA-754, claimant alleges a ceremonial marriage was performed, however there is no evidence to support this statement. Claimant alleges she and NH lived together, as husband and wife, from September 2002 until NH’s death on January XX, 2019, except for a nine-month span from September 2002 until June 2003 when NH was on active duty.

In support of her application, claimant has statements from her family members as well as NH’s family members. These statements are consistent that claimant and NH lived together and presented themselves as husband and wife for a period of 17 years. The statements also indicate that both claimant and NH were previously married, with claimant’s marriage ending in divorce and NH’s marriage ending in the death of the spouse in January 2019.

Claimant submitted a Certification from the Casa de Justicia Comunitaria de Paz de Rufina Alfaro, the community court in the township where she and NH lived. This certification dated August XX, 2019, states that the claimant and NH maintained the relationship of a couple and resided like a married couple from August 2002 until January 2019.

ANALYSIS[1]

Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits on a deceased insured individual’s account if, among other things,[2] the claimant is the widow(er) of the insured individual and their marriage lasted at least nine months as of the day before the insured individual died. See 42 U.S.C. §§ 402(e)(1), (f)(1), 416(a)(2), (c), (g); 20 C.F.R. § 404.335; Program Operations Manual System (POMS) GN 00305.100. Under Title II of the Act, the lump sum death payment (LSDP)[3] which is a one-time payment of $255, may be paid to a deceased insured individual’s widow(er) who was living in the same household with the insured at the time of his death.[4] See 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391.

As pertinent here, the Act provides two methods for a claimant to show he or she is the widow(er) of an insured who was domiciled outside the United States.[5] First, a claimant is the widow(er) of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time the insured died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, if the claimant was not validly married to NH at the time the NH died, the claimant will be deemed to be the insured’s widow(er) if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow of the insured with respect to the taking of such property. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

In this case the NH was domiciled in Panama when he died. Therefore, the claimant’s status will be evaluated under the laws of the District of Columbia. See, Footnote 5, supra.

Claimant and the NH were not married under Panamanian Law.

Under the law of the District of Columbia, the validity of the marriage is determined by the law of the jurisdiction where the marriage occurred. See Bansda v. Wheeler,995 A.2d 189, 198 (D.C. Cir. 2010); McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). In this situation, the claimant alleges the marriage took place in Panama, so we examine Panamanian marriage laws.

Here, the claimant alleges in her application that she was married to the NH, however she provided no marriage certificate. Instead, she provided a Certification from the community court in the township where she and NH lived. That certification stated the claimant and NH had maintained a relationship and lived together as husband and wife at the same address from 2002 until January 2019. Claimant also provided statements from others that indicated she and NH introduced each other as husband and wife and lived together for a period of 17 years. It appears claimant has provided evidence that might be required to support a common law marriage. However, Panama has a civil law system so does not have “common law” marriage, though they do have a similar concept called a union or marriage in fact. The Constitution of Panama provides that couples meeting certain conditions will be considered to have the same rights and privileges as those who participate in a civil marriage[6] . Therefore, the District of Columbia would not recognize the couple were validly married, and claimant is not entitled to Title II widow’s benefits or the LSDP on the record of the NH based on a valid marriage.

Claimant is not eligible to inherit spouse’s share of NH’s estate under Panamanian intestacy laws.

Since the claimant was not legally married to the NH, we next must examine whether she has the same rights as a wife to share in the distribution of the NH’s intestate personal property under the laws of the State of the NH’s domicile at the time of filing. POMS RS 00202.001.A.1; 42 U.S.C. § 402(b); 42 U.S.C. § 416(b); 20 C.F.R. § 404.330(a). Under District of Columbia law, the law of the decedent’s domicile determines intestate inheritance rights. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)).

To inherit the spouse’s share, the survivor must be the legally recognized spouse, either under the traditional marriage or as a marriage in fact. See, Codigo Civil de la Republica, Capitulo VII, De la sucesion del conyuge, arts. 685-691, https://www.organojudicial.gob.pa/uploads/wp_repo/blogs.dir/cendoj/CIVIL/codigo_civil.pdf. To be eligible for spousal rights and privileges, such as a spousal share of an estate, the Panama Family Code requires proof of the valid marriage. 2019 LOC Opinion (Citing Codigo de la Familia, art. 74). See also, Jacinto Javier Espinosa González, Trasmisión Patrimonial Mortis Causa-Régimen Jurídico Sucesorio, primera parte, 31 (2014), https://perma.cc/P8L4-RYAR). This proof is either a copy of the registration or a declaration from a court of competent jurisdiction. Id.

One of the requirements for a union in fact to be recognized is a joint request for the registration of in the Civil Registry. Id. If a relationship is not registered, it may still be proved for purposes of establishing rights derived from a marriage by one party filing a lawsuit against the other.[7]

The evidence supplied in this matter does not include a copy of the Civil Registry of Panama to prove registration of the union in fact. While there is a Certification from a municipal judge where claimant and NH resided, authority for a determination lies with the Family Court in Panama, and not with local municipal court.[8] Therefore, we believe the D.C. Court would find claimant does not have a marital relationship with NH under Panamanian Law.

Claimant here does not have any valid proof of either a traditional marriage or marriage in fact. As a result, she is not eligible for a spouse’s share under the Panamanian laws of intestacy.

A Panamanian court of competent jurisdiction could find a legal relationship based on the evidence submitted by claimant.

Under Panama’s Family Code, a marriage in fact is proved by testimony of at least three witnesses with direct knowledge of the existence of the relationship. Those witnesses must testify regarding the singularity and stability of the relationship. Singularity means the union exists between one man and one woman. Stability means it is constant, durable, and permanent. Id. arts. 54, 796, 797, 798. In addition, both parties must have legal capacity to marry and have maintained the relationship during five consecutive years.[9]

The claimant provided SSA-753 statements from four individuals (a niece and three cousins representing families of both claimant and NH) with knowledge of the relationship. Each statement indicated a 17-year relationship that ended with NH’s death. The statements are consistent that the claimant and NH lived together continuously and referred to each other as husband and wife for the duration of the 17-year relationship.

For the D.C. courts to find claimant eligible for spousal benefits under the Act, claimant would have to file in the appropriate court in Panama to obtain a declaration of union in fact. Such a claim may be filed after the death of one of the parties.[10]

CONCLUSION

We believe that the courts of the District of Columbia would find that claimant has not submitted sufficient proof of a valid marriage or union in fact under Panamanian law... Accordingly, we believe that there is insufficient evidence for the agency to find the claimant is NH’s widow or deemed widow for purposes of Title II benefits.


Footnotes:

[1]

Our discussion of Panamanian law is based on information we received from the Law Library of Congress. See,Letter from G~, Senior Foreign Law Specialist, LL File No. 2019-018112 (September 25, 2019) (Law Library of Congress Report) and Letter from G~, Senior Foreign Law Specialist LL File No. 21-020688 (October 27, 2021).

[2]

Claimant must satisfy other criteria for widow(er)’s benefits and the LSDP that are outside the scope of this legal opinion request, which concerns only their marital relationship. See 42 U.S.C. § 402(e), (i), § 416(c); 20 C.F.R. §§ 404.335, 404.390, 404.391.

[3]

From the information you provided us, we could not determine if claimant applied for the LSDP. However, we are providing information about this benefit in case it is applicable to this claim.

[4]

“Living in the same household” means that the claimant and the insured individual “customarily lived together as husband and wife in the same residence.” 20 C.F.R. § 404.347; seealsoPOMS RS 00210.035A.3 (the couple “must have shared a temporary or permanent residence for at least part of a day following the beginning of the marital relationship”). If the claimant cannot meet the living-in-the-same-household requirement, the claimant must meet the nine-month marriage duration requirement for widow(er)’s benefits or another alternative to be entitled to the LSDP. See20 C.F.R. §§ 404.390 - 404.392; POMS RS 00210.001C.

[5]

In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured was domiciled at the time of the insured’s death. See 42 U.S.C. § 416(h)(1)(A)(i). If the insured was not domiciled in any state, as here, the agency applies the law of the District of Columbia. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

[6]

LL File No. 2019-018112 (September 25, 2019) (2019 LOC Opinion) (citing Constitución Política de la República de Panamá, art. 58

[7]

LL File No. 2019-018112 (September 25, 2019) (citing, Codigo de la Familia, art. 56, Ed. Mizrachi & Pujol, 2015).

[8]

LL File No. 21-020688 (October 27, 2021) (2021 LOC Opinion) (citing Procuraduria de la Administracion, Certificación por matrimonio de hecho y el nombramiento del personal minimo que conforman la Casa de Justicia Comunitaria de Paz, Aug. 9, 2020, https://perma.cc/U733-95CP).

[9]

LL File No. 2019-018112 (September 25, 2019) (citing Constitución Política de la República de Panamá, art. 58).

[10]

LL File No. 21-020688 (October 27, 2021) (citing Procuraduria de la Administracion, Certificación por matrimonio de hecho y el nombramiento del personal minimo que conforman la Casa de Justicia Comunitaria de Paz, Aug. 9, 2020, https://perma.cc/U733-95CP).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1503130275
PR 03130.275 - Panama - 12/01/2023
Batch run: 12/01/2023
Rev:12/01/2023