For purposes of R~’s (R~’s) application for spousal benefits on the number holder
A~’s (NH’s) account, you asked whether under Arkansas law an El Salvadoran religious
ceremonial marriage certificate proves R~ and the NH were legally married, and if
so, whether the evidence is sufficient to overcome the presumed validity of NH’s last
We conclude Arkansas law would not recognize a marriage between R~ and the NH because
the evidence does not establish that their purported marriage was valid in El Salvador
where it was celebrated. Having concluded R~ has not proven a valid marriage between
her and the NH, we need not further address issues related to the presumed validity
of the NH’s last marriage.
The NH is domiciled in Arkansas and receives Title II retirement benefits. On his
benefit applications, the NH listed marriages to M~ in 1987 and M2~ in 2008.
In July 2014, R~ filed for Title II spousal benefits on the NH’s account. To prove
her marriage to the NH, R~ provided a copy of an El Salvadoran religious ceremonial
marriage certificate. On September XX, 2009, a priest administrator from the Church
of S~ P~ the A~ in S~ P~, El Salvador, executed the certificate stating R~ and the
NH were married before a clergyman on March XX, 1978, and the marriage was recorded
in the church’s marriage registry. The certificate includes the couple’s names, their
cities of birth, their parents’ names, the witnesses at the ceremony, and the officiating
clergyman. R~ alleged, but provided no proof, that the NH never divorced her. The
NH denies he and R~ were ever married, but acknowledges they have a child together
and that he pays child support.
A. Entitlement to Social Security Spousal Benefits under the Social Security Act
A claimant is entitled to spousal benefits under Title II of the Social Security Act
(Act) if, among other things, she is the wife or deemed wife of an insured individual
who is entitled to old-age or disability benefits. See 42 U.S.C. §§ 402(b), 416(a)(1), (b); 20 C.F.R. § 404.330. For a claimant to establish
she is a wife, the claimant bears the burden of proving she is in a valid marital
relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 404.330(a), 404.344-.346, 404.704, 404.723, 404.725. In determining the
claimant’s relationship as the insured’s spouse, the agency looks to the law of the
state where the insured had a permanent home at the time the claimant applied for
benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; Program Operations Manual
System (POMS) RS 00202.001(A); GN 00305.005(B). Permanent home means the individual insured’s true and fixed home or legal domicile.
20 C.F.R. § 404.303. Because the NH was domiciled in Arkansas at the time R~ filed
her application, we look to Arkansas law to determine whether the NH and R~ were validly
B. Under Arkansas Law, R~ Has Not Proven a Valid Marriage to the NH
As noted in your legal opinion request, the NH was allegedly married subsequent to
his purported marriage with R~, including his latest to M2~ in 2008. At the outset,
Arkansas law presumes the NH’s most recent 2008 marriage is valid and that any prior
marriages ended with divorce. See Stokes v. Heckler, 773 F.2d 990, 991-92 (8th Cir. 1985) (citing Missouri Pacific R.R. Co. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938)); Blythe v. Blythe, 410 S.W.2d 379 (Ark. 1967); Sims v. Powell’s Estate, 432 S.W.2d 838, 840 (Ark. 1968); Bruno v. Bruno, 256 S.W.2d 341, 344 (Ark. 1953). This presumption of the validity of the most recent
marriage is one of the strongest presumptions under Arkansas law and a party attacking
the marriage has a difficult burden of proving “clear and decisive” evidence to rebut
the presumption. See Stokes, 773 F.2d at 991-92; Blythe, 410 S.W.2d at 379. Therefore, R~ must provide evidence to prove she is validly married
to the NH and that neither she nor the NH obtained a divorce in order to overcome
this presumption. R~ has not met this heavy burden because, as explained below, she
has not proven she validly married the NH.
1. Arkansas Law’s Recognition of Foreign Marriages
As there is evidence of an El Salvadoran marriage, we next consider Arkansas law regarding
recognition of foreign marriages and what law an Arkansas court would apply to determine
the validity of the foreign marriage. Under Arkansas law, marriages that “would be
valid by the laws of the state or country in which the marriages were consummated
and in which the parties then actually resided shall be valid in all courts in this
state.” Ark. Code. Ann § 9-11-107(a); see also Estes v. Merrill, 181 S.W. 136, 138 (Ark. 1915) (noting that it was “settled law that marriages, contracted
without this state, which are valid by the laws of the state or country in which the
same are consummated the parties then actually resided, are valid in this state”).
R~ alleged the marriage occurred in El Salvador. Thus, for the marriage to be valid
under Arkansas law, the marriage must be valid under El Salvadoran law and the parties
to the marriage must have actually resided in El Salvador. We requested an opinion from the United States Law Library of Congress (Library of
Congress) on whether the El Salvadoran religious ceremonial marriage certificate R~
provided the agency establishes a valid marriage under El Salvadoran law. They indicated
that it was insufficient evidence to establish a valid marriage under El Salvadoran
law because El Salvadoran law requires a civil marriage.
2. El Salvadoran Law Requires a Civil Marriage
The Library of Congress summarized El Salvadoran law as providing that only a marriage
contracted before an appropriate civil authority has civil effects. Proof of a marriage
in El Salvador requires a civil marriage certificate issued by either the Civil Registry
of Persons prior to October 1, 1994, or by a marriage certificate issued by the Registry
of Family Status on or after October 1, 1994. See Library of Congress, El Salvador: Marriage Law, LL File No. 2015-012721 (Sept. 2015) (attached).
The Library of Congress noted the religious ceremonial marriage certificate R~ submitted
indicates the marriage occurred before a clergyman, not an appropriate civil authority.
See id. at pp. 1, 3. Further, a church administrator executed the certificate. See id. at p. 1. Thus, it was neither a certificate of civil marriage issued by the Civil
Registry of Persons nor a marriage certificate issued by the Registry of Family Status.
As a result, the religious ceremonial marriage certificate is insufficient to establish
a valid marriage under El Salvadoran law. See id. at p. 3.
The religious ceremonial marriage certificate states the parties complied with civil
law, and El Salvadoran law mandates a religious ceremony could not be performed without
first presenting the officiating clergy with a certificate attesting that a civil
marriage had been contracted in accordance with the law. See id. at pp. 1, 3. Nevertheless, the Library of Congress advised that the only permissible
proof of a valid marriage is a certificate of civil marriage issued by the Civil Registry
of Persons or a marriage certificate issued by the Registry of Family Status, neither
of which is present in this case See id. at p. 3. Accordingly, because El Salvadoran law would not consider the marriage valid
based only on the submitted religious ceremonial marriage certificate, Arkansas law
would likewise not consider the marriage valid. Therefore, R~ has not established her relationship to the NH as his spouse under
the Act. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.330(a), 404.344, 404.345.
C. Entitlement to Spousal Benefits under the Act Based on a Deemed Valid Marriage
We were not asked for an opinion on whether R~ might be eligible for spousal benefits
as a deemed spouse. However, as noted above, if a claimant cannot establish her status
as an insured’s wife under state law per 42 U.S.C. § 416(h)(1)(A), she may be eligible
for benefits based on a deemed valid marriage. See 42 U.S.C. § 416(h)(1)(B); 20 C.F.R. § 404.346; see also POMS GN 00305.005(A) (in determining whether a claimant qualifies as a spouse under the Act, consider
all of the following types of marriages: valid ceremonial or common-law marriage;
invalid marriage that permits a spouse to inherit under state intestate personal property,
e.g. putative; custom marriage; or deemed marriage). For a claimant to establish she
is a deemed wife, she must prove she went through a marriage ceremony in good faith
with the insured that would have resulted in a valid marriage except for a legal impediment.
See 42 U.S.C. § 416(h)(1)(B); 20 C.F.R. §§ 404.346, 404.704, 404.727. A legal impediment
includes only an impediment that results because a previous marriage had not ended
at the time of the ceremony, or because there was a deficiency in the procedure followed
for the intended marriage. See 42 U.S.C. § 416(h)(1)(B)(iv); 20 C.F.R. § 404.346. It is arguable that there could
be a deficiency in the procedure under the facts here because there is evidence of
a religious ceremony performed in a country that requires a civil ceremony for a valid
marriage. However, to be eligible for spousal benefits based on a deemed valid marriage,
the claimant and the insured must have been living in the same household at the time
the claimant applied for benefits or the insured died. See id. The evidence submitted shows that R~ was not living in the same household as the
NH at the time she filed her application. Further, the record is not sufficiently
documented to determine whether R~ went through the marriage ceremony in good faith.
See 20 C.F.R. § 404.346. Thus, R~ cannot qualify as the NH’s spouse based on a deemed
valid marriage. See 42 U.S.C. § 416(h)(1)(B).
We believe Arkansas would not recognize the El Salvadoran marriage as valid. Although
Arkansas law considers a foreign marriage valid if the marriage was valid under the
laws of the country in which the marriages was celebrated and in which the parties
then actually resided, the submitted El Salvadoran religious ceremonial marriage certificate
is insufficient proof of a valid marriage in El Salvador, which requires evidence
of a civil marriage. Because she is not validly married to the NH under Arkansas law,
she is not the NH’s spouse for purposes of her application for spousal benefits on
the NH’s account. Should R~ submit proof of a valid civil marriage in El Salvador,
we recommend development of whether R~ and the NH resided in El Salvador when the
marriage took place, as well as further evidence necessary to overcome the presumption
of the validity of the NH’s most recent marriage to M2~, his current spouse.
Regional Chief Counsel
By: James D. Sides
Assistant Regional Counsel