PR 03140.238 Mexico

A. PR 08-071 Validity of Proxy Marriages in Chiapas, Mexico

DATE: February 20, 2008

1. SYLLABUS

Under the laws of the State of Chiapas, Mexico, proxy marriage is recognized as valid.

2. OPINION)

QUESTION

You asked whether a proxy marriage registered in Chiapas, Mexico in 1989 is recognized as a valid marriage by the State of California.

ANSWER

Proxy marriages were valid in Chiapas, Mexico in 1989, and thus, recognized as valid in the State of California in 1989. However, in this case, we recommend that you determine the exact date of the proxy marriage between the claimant and the insured.

We also recommend that you develop whether the claimant and the insured were married or divorced at the time of the insured's death. The claimant filed an application for widow's benefits as the surviving spouse. However, the death certificate reports the insured's marital status as divorced with no surviving spouse listed. The file contains a report of contact indicating that the claimant had not been living with the insured for approximately four years prior to his death. The file also shows that the insured began receiving Supplemental Security Income (SSI) payments in 2001, the year he died. We recommend that you check what he indicated as his marital status on his SSI application. Also, we recommend that you ask the claimant what she indicated as her marital status on her federal and state income tax returns for the four years preceding the insured's death. If the claimant and the insured were divorced at the time of his death, she may qualify as the insured's surviving divorced wife.

SUMMARY OF EVIDENCE

Eugene R. M~ was born on February 14, 1944, and died on November 11, 2001 while domiciled in California.

Dolores C~ was born on September 22, 1943, in Los Angeles, California.

Records in the file indicate that Ms. C~ and Mr. M~ were married by proxy in Tuxtla G~, the capitol city of the State of Chiapas, Mexico in 1989. Specifically, the official marriage certificate was signed by Judge Lauro S. M~, and issued by the "Officina del Registro del Estado Civil - Tuxtla Gtz., Capital del Estado de Chiapas" (Civil Registry) on August 2, 1989. The receipt of the registration of the marriage is dated September 23, 1989. The official English translation of the marriage certificate, which states that Eugene R. M~ and Dolores C~ were validly married in Chiapas, was also signed by Judge M~ and issued by the Civil Registry on October 2, 1989. The official English translation describes the marriage of Ms. C~ and Mr. M~, but does not specifically indicate the date of the marriage. The English translation reference "Book Records number 1989" and page 874.

Although there appear to be several inconsistencies regarding the date of the C~-M~ marriage, it appears most likely that there may have been a clerical error in the original marriage certificate, such that the date was erroneously noted as "August" rather than "October" 1989. In that case, it would appear that Ms. C~ and Mr. M~ completed the paperwork to register their marriage in Chiapas on September 23, 1989 and then had their proxy marriage registered in the Civil Registry on October 2, 1989 (as reflected in both the original and English translation of the marriage certificate).

Alternatively, it may be possible that the proxy marriage of Ms. C~ and Mr. M~ was properly registered in the Civil Registry on August 2, 1989, but that a receipt for the registration of the marriage certificate was not issued until September 23, 1989 (i.e., the registration paperwork was completed prior to August 2, 1989 though the receipt for the paperwork was not provided until September 23, 1989). Thereafter, Ms. C~ and Mr. M~ may have requested an English translation of the original marriage certificate, registered on August 2, 1989 and issued on October 2, 1989. Thus, the October 1989 date referred only to the date on which the translated copy of the marriage certificate was issued, and not the date on which Ms. C~ and Mr. M~ were actually married.

The death certificate shows that Mr. M~ was divorced with no surviving spouse listed.

Mr. M~' son is listed as the "Informant" on the death certificate. There is a report of contact indicating that Ms. C~ and Mr. M~ were not living together at the time of his death and had not been living together for approximately four years.

Mr. M~ began receiving SSI payments in 2001, the year he died.

Ms. C~ initially applied for benefits in September 2004, but re-filed for benefits on June 8, 2006, when the Agency could not locate her file.

ANALYSIS

Section 216(c)(1)(E) of the Social Security Act defines "widow" as the "surviving wife of an individual, but only if . . . [among other requirements not pertinent here] she was married to him for a period of not less than nine months immediately prior to the day on which he died." See also 20 C.F.R. § 404.335(a)(1) (2007); Program Operations Manual System (POMS) RS 00207.001(A)(1), (C)(2).

Section 216(d)(1) of the Act defines "surviving divorced wife" as "a woman divorced from an individual who has died, but only if she had been married to the individual for a period of 10 years immediately before the date the divorce became effective." See also 20 C.F.R. § 404.336; POMS RS 00207.001(A)(2), (B)(2).

The determination of a claimant's marital status is governed by the laws of state in which the insured individual was domiciled at the time of his death. Section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345; POMS RS 00207.001(C)(1)(a). Here, the insured died while domiciled in California.

Under California law, the validity of the marriage between Ms. C~ and Mr. M~ would be evaluated with reference to the law of Chiapas, the place in which the marriage was contracted. Ca. Fam. Code. § 308 (stating that "marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state"), formerly Cal. Civ. Code § 4104; see Program Operations Manual System (POMS) GN 00305.005(B) (Determining Marital Status) (validity of a marriage generally determined by the law of the place where it occurred); see also U.S. v. Sacco, 428 F.2d 264, 268 (9th Cir. 1970) (stating the general rule that "validity of a marriage is determined by the law of the state where it took place"); Colbert v. Colbert, 28 Cal. 2d 276, 280 (Cal. 1946) (stating that "ordinarily, the law of the place of marriage controls the question of its validity"). Thus, under California law, the proxy marriage between Ms. C~ and Mr. M~, which occurred in Chiapas in 1989, will be considered valid if it is valid under the laws of Chiapas.

The validity of proxy marriages in Chiapas is governed by the Chiapas Civil Code (Code), which was enacted on February 5, 1938. According to POMS PR 03140.238 (Mexico) (specifically PR 80-001), proxy marriages were valid under laws of Chiapas in 1973.

A translation of the relevant articles of the 2005 version of the Code indicates that proxy marriages are valid, as follows:

Article 40. "The Civil Registry will establish the format and characteristics for the acts and certifications that use special conventions to complete all the information referred to in this code [law]. Failure to follow the rules of the Civil Registry will result in a nullity of the attempted action."

Article 83. "In the place, day, and time designated for the celebration of marriage, there should be present before the official of the Civil Registry, the applicants or their special agent as established in the form present in Article 40 of this code and two witnesses for each one of them that can establish their identity."

"The official of the civil register reads aloud the petition of marriage, the documents that they have presented with diligent practices and interrogation of the witnesses concerning whether the applicants are the same persons that are referred to in the petition. In the affirmative case, the official will ask each of the applicants if they are voluntarily joining in marriage and if they have agreed to join together in name of the law and of the petition, directing an exhortation to finalize the marriage."

Article 48. "When the interested persons cannot participate personally before an official of the Civil Registry, they may request that someone be present to replace them or to represent them as a special agent for the act. In this last case, the mandate will be granted by means of public writing."

Article 49. "The witnesses that take part in the acts of the Civil Registry must be of legal age and preference is given to the parents and to those with a designated interest who can establish the name, age, residence and nationality of the parties."

Article 79. "The two witnesses must be of legal age, know the applicants, and attest that there are no legal impediments to marry. If there are not two witnesses that know both applicants, the applicants must present two witnesses each."

Article 249. "Marriage has in its favor the presumption of being valid; it shall be considered null only when so declared by order."

Comparison of the relevant articles in the 2005 version of the Code, as shown above, to those of the 1989 version of the Code reveals that the articles are identical, with the exception of the language of Article 40 which is slightly different but imparts the same meaning. Additionally, based on our research, including discussions with legal librarians who are experts in Latin American jurisprudence, significant legal provisions in the Code tend to remain constant over time. This is consistent with the notation in the file indicating that proxy marriages were valid in Chiapas from, at least, 1938 through January 1979, which we note overlapped with the issuance of revised Codes in 1975, 1982, and 1986. Additionally, our research did not uncover any evidence showing that proxy marriages were invalid in Chiapas at anytime since enactment of the Code in 1938. Accordingly, it appears that proxy marriages were considered valid under the Code, as originally enacted in 1938 (per POMS PR 03140.238), and as amended in 1989 and 2005. Furthermore, we may assume that proxy marriages were continuously valid in Chiapas from 1938 through 2005, and likely to the present time.

In conclusion, the proxy marriage of Ms. C~ and Mr. M~ in Chiapas in 1989 was valid under the laws of Chiapas at that time. Accordingly, California law would recognize that Ms. C~ and Mr. M~ were validly married in 1989.

A valid marriage in California is dissolved by the death of one of the parties or by a judgment of dissolution of marriage. Cal. Fam. Code § 310. Here, the death certificate shows that Mr. M~ was divorced at the time of his death and no surviving spouse is listed.

We recommend that you check what Mr. M~ listed as his marital status on his SSI application, and what Ms. C~ listed as her marital status on her federal and state income tax returns. If they were divorced when he died, she does not qualify for widow's benefits as the surviving spouse, but she may qualify as a surviving divorced spouse if she meets the 10-year marriage requirement.

B. PR 80-001 Proxy Marriage in Chiapas, Mexico (Your Memorandum Dated August 21, 1979)

DATE: February 8, 1980

1. SYLLABUS

Under the laws of the State of Chiapas, Mexico, in effect on March 5, 1973, proxy marriage may be valid. (MEMO GC (A~) to SSA- 2/8/80)

2. OPINION)

In connection with a claim for child's benefits under title II of the Social Security Act, you ask our opinion on whether a proxy marriage in Chiapas, Mexico, is valid.

Briefly stated, the facts are as follows: On January 28, 1973, the wage earner and his spouse (the biological mother of the child claimants) signed all the necessary papers and documents at Tijuana, Baja California, Mexico, in order to be married in Chiapas, Mexico, by proxy. As proof of the marriage, a copy of the matrimonial act, which was registered in the State of Chiapas on March 5, 1973, was submitted to SSA. The validity of a proxy marriage under the laws of Chiapas on March 5, 1973, is governed by the Chiapas Civil Code which took force on February 5, 1938. The pertinent articles of the Code may be translated as follows:

"Art. 38. The civil status of natural persons shall be proved only by the records of the Civil Registry. No other document or evidence is admissible to prove the civil status of natural persons, except in those cases expressly excepted by law.

"Art. 44- When the interested parties cannot appear in per- son, they may have themselves represented by special agent for this act, whose appointment should be recorded at least in a private instrument issued in the presence of two witnesses. In cases of marriage or acknowledgment of children, the power must be given in a public notarial instrument, or a mandate issued in a private instrument signed by the grantor and two witnesses, and the signatures ratified before a notary public, a judge of first instance, or a municipal judge.

"Art. 45. The witnesses participating in the Civil Registry records must be of legal age, preference being given to those designated by the interested parties even when they are relatives.

"Art. 100. At the place, hour and day designated for the celebration of a marriage there should be present before the official of Civil Registry the parties, or their special proxies, constituted in the form provided in article 44, and two witnesses for each one, to accredit their identity.

"Immediately the official of Civil Registry shall read aloud the marriage application, the documents attached thereto, and the proceedings and shall ask the witnesses whether the applicants are the same persons referred to in the application. If this be the case, the official will ask each applicant if it is his or her will to be united in marriage. If they both agree, the official shall declare them united in the name of the law and of society.

"Art. 249. Marriage has in its favor the presumption of being valid; it shall be considered null and void only when so declared by final court judgment."

Based on the above, we believe that the proxy marriage which was performed by the official of the Civil Registry on March 5, 1973, and which was registered in the Office of Civil Registry, may constitute valid proof of marriage. We note that under article 249 (as quoted above) a marriage is pressed to be valid unless it is declared null and void by final judgment of a court of law.

C. PR 89-003 Ray H~ — DWE — Social Security No. ~ Proxy Marriage-Mexico

DATE: January 31, 1979

1. SYLLABUS

Under the laws of Oaxaca, Mexico, in 1953, a proxy marriage may be validly contracted; also, the recording of a proxy marriage in the Office of the Civil Registry may constitute definitive proof of the existence of the marriage. Ray — ~— GC (A~) to SSA 1/31/79)

2. OPINION

In connection with a claim for social security benefits under title II of the Social Security Act, you asked for an opinion on the validity of a proxy marriage contracted under the laws of Oaxaca, Mexico, in 1953. You also asked for an opinion on whether an OGC opinion involving a proxy marriage in Oaxaca (re Lee E.T.~ , June 18, 1954) is still current.

The pertinent facts of the case, as presented in your memorandum, are as follows: On November 27, 1953, the wage earner and the claimant went to Tijuana, Baja California, Mexico, where they paid the required fee and arranged for a proxy marriage to be performed later at a different location. They were given a written receipt. Subsequently, on December 29, 1953, in Putla, Oaxaca, Mexico, a marriage certificate was issued by the civil registrar reflecting that the parties been married on that date by proxy and that they were each represented by an attorney. (Your memorandum also indicates that the marriage was not recorded in Oaxaca.) The certificate reflects that the attorneys were asked whether it was the will of the parties to be united in this marriage and reflects that the attorneys gave an affirmative answer. The proxy ceremony purportedly took place before witnesses. The claimant received a copy of this document. The couple lived together as man and wife in California until December 15, 1957, at which time they separated. Two children were born of this relationship.

The wage earner subsequently married again on two occasions. The next marriage ended in a final divorce in California, and the final marriage was ended by the wage earner's death on February 21, 1976, while he was domiciled in Jalisco, Mexico.

Before his death, the wage earner signed a statement that he had never divorced the claimant because he did not believe that a valid marriage existed between them. The claimant, on the other hand, has expressed a continuing good faith belief in the validity of their purported marriage.

In your memorandum, there appears to be an apparent contradiction. One sentence indicates that a marriage certificate was issued by the Civil registrar in Putla, Oaxaca, Mexico and another sentence indicates that the marriage was not recorded in Oaxaca. For purposes of this opinion, we assumed that the marriage was recorded. However, we suggest further development by SSA to determine definitively whether or not the marriage was recorded in Oaxaca, Mexico.

On the issue of a proxy marriage in Oaxaca, Mexico, we asked the law library of the Library of Congress for assistance and received a report on marriage by proxy under the laws of Oaxaca, Mexico, in 1953. The following is a summary of that report:

In the State of Oaxaca, marriage in 1953 was governed by the provisions of the Civil Code of that State. These provisions were adopted by Decree of December ll, 1943, in force as of November 30, 1944. On marriage, article 104 provides the following:

"Art. 104. At the day and time set for the marriage, there shall be present before the Official of the Civil Registry the contracting parties or their proxies especially appointed by notarial instrument and two witnesses who shall attest as to their identities. Immediately the Official of the Civil Registry shall read in a loud voice the marriage petition, the documents attached thereto and other records in file and shall ask the witnesses if the contracting parties are the same persons referred to in the marriage application. If the answer is in the affirmative the official shall ask the contracting parties if it is their will to unite themselves in marriage and if they agree, shall declare them united (in marriage) in the name of the law and (in the name) of society."

On the issue of proving the civil status of a person, article 39 provides the following:

"Art. 39. The civil status (of persons) shall be proven only by means of the records of the (Civil) Registry. No other document or means of proof is admissable to prove the civil status (of persons) except when so expressly provided by the law."

The report concluded that marriage by proxy was permitted in Oaxaca in 1953 and that the recording of a marriage in the Office of the Civil Registry constituted definitive proof of the existence of that marriage. We agree. Therefore, assuming the marriage was recorded, we believe that the proxy marriage described above may be considered a valid marriage under the laws of Oaxaca in 1953.

Concerning your question on the currency of the T~ opinion, we believe that a response is unnecessary in view of the discussion herein on the laws of proxy marriage in Oaxaca.


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PR 03140.238 - Mexico - 04/10/2008
Batch run: 11/29/2012
Rev:04/10/2008