TN 3 (05-16)

PR 03155.112 El Salvador

A. PR 16-071 Arkansas State Law – Evidence to Overcome Presumption of Validity of Last Marriage (NH A~; SSN ~) – REPLY

Date: January 26, 2016

1. Syllabus

For purposes of the claimant’s application for spousal benefits on the number holder’s (NH) record, the El Salvadoran religious ceremonial marriage certificate submitted is not sufficient to overcome the presumed validity of the NH’s last marriage under Arkansas law. Although Arkansas law considers a foreign marriage valid if the marriage was valid under the laws of the country in which the marriage 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 the claimant 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 the claimant submit proof of a valid civil marriage in El Salvador, additional development of whether the claimant 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 is recommended.

2. Opinion

QUESTIONS PRESENTED

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 marriage.

ANSWER

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.

BACKGROUND

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.[1]

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.

ANALYSIS

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.[2] 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 married.

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.[3] 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.[4] 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.[5]

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.[6] 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).

CONCLUSION

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.

Michael McGaughran

Regional Chief Counsel

By: James D. Sides

Assistant Regional Counsel


Footnotes:

[1]

. The evidence submitted does not show the specifics of the NH’s marriages to M~ or M2~ or whether they are currently receiving spousal benefits on the NH’s account. It is our understanding that the NH is presently married to M2~. However, since the only relevant question is whether R~ has a valid marriage to the NH sufficient to establish her status as his wife or deemed wife for spousal benefits, we do not further analyze these subsequent marriages to M~ or M2~.

[2]

. To be eligible for spousal benefits, the claimant must also show she: (1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage; (2) has filed an application for spousal benefits; (3) has attained aged 62 or has in his care a child entitled to child’s benefits; and (4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount. See 42 U.S.C. § 402(b); 20 C.F.R. § 404.330. Our conclusion that R~ did not prove that she is the NH’s wife or deemed wife renders the remaining factors irrelevant to the issue of spousal benefit eligibility.

[3]

. There is insufficient evidence provided for us to determine whether R~ and the NH actually resided in El Salvador. Should R~ produce evidence of a civil marriage under El Salvadoran law, we recommend further development of whether the parties resided in El Salvador at the time of the alleged marriage.

[4]

. Should R~ submit proof of a valid civil marriage in El Salvador, we would be happy to re-evaluate her claim for spousal benefits. However, as noted above, even if she submitted sufficient evidence of a valid marriage, R~ must also present proof that neither she nor the NH obtained a divorce in order to overcome the strong presumption of validity of the last marriage. We would also need information regarding the NH’s marriage to M2~.

[5]

. The relationship requirement will also be met if under state law, a claimant would be able to inherit a widow’s share of the insured’s personal property if he were to die without leaving a will. See 42 U.S.C. § 416(h)(1)(A)(ii); 404.345; 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). We believe R~ could not inherit a spouse’s share of the NH’s property under Arkansas intestate succession laws because she did not have a valid marriage to the NH. See Ark. Code Ann. § 28-9-214(2) (if the intestate is survived by no descendant, the heritable estate of an intestate shall pass to the intestate’s surviving spouse). The intestate succession law does not define “surviving spouse,” but Arkansas case law indicates that in order to qualify as a “surviving spouse” for inheritance purposes, there must be a valid marriage. See Blythe, 410 S.W.2d at 379-381 (in considering whether the first wife or the third wife was entitled to inherit from the deceased, the court concluded that the first wife did not rebut the presumption of the validity of the third wife’s marriage to the deceased and therefore the third wife was the lawful widow); Cooper v. McCoy, 173 S.W. 412, 414 (Ark. 1915) (the appellant’s marriage to the deceased was illegal and void because the deceased had a former living wife from whom he had not been divorced at the time of his marriage to the appellant, and therefore, “[n]ot having been the legal wife of the deceased, she is not entitled to a division of the [deceased’s] property”); Evatt v. Mier, 169 S.W. 817, 819 (Ark. 1914) (where the woman’s marriage to the deceased was null and void because of his prior undissolved marriage, she had no rights in his estate). Thus, because R~ did not prove that she has a valid marriage to the NH, she could not inherit a spouse’s share under Arkansas intestate succession laws and she is unable to prove the relationship requirement under 42 U.S.C. § 416(h)(1)(A)(ii).

[6]

. To be eligible for divorced spouse benefits, a divorced claimant with a deemed marriage need not be living in the same household with the insured at the time she filed her application or at the time of the insured’s death. See 20 C.F.R. § 404.331; see also POMS GN 00305.055(A)(1)(c). We have not been asked for an opinion regarding whether R~ could qualify for divorced spouse benefits and, in fact, neither party alleges a divorce.


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PR 03155.112 - El Salvador - 05/17/2016
Batch run: 05/18/2016
Rev:05/17/2016