TN 2 (07-15)

PR 03155.138 Ghana

A. PR 15-143 Whether B~ is entitled to an underpayment of benefits on the record of his deceased wife and number holder, Y~.

Date: June 11, 2015

1. Syllabus

In determining the validity of the surviving widower’s marriage to the deceased insured, the Agency applies the law of the State where the NH was domiciled at the time of the NH’s death. In this case, the NH was domiciled in Maryland at the time of her death. Maryland courts recognize a marriage as valid if it was valid where contracted or solemnized and does not violate Maryland public policy.

Ghana recognizes three different forms of marriage; customary marriages, statutory marriages, and marriages contracted under Mohammedan rites. There essential requirements for contracting a valid customary marriage in Ghana and the customary marriage between the NH and spouse appears to have satisfied all of the essential requirements according to the Declarations that the spouse provided. Although marriages were not required to be registered after the passage of the Customary Marriage and Divorce (Registration) Amendment Law of 1991, the spouse registered his marriage to the NH with the Republic of Ghana. The registration was signed by the registrar and stamped with an official seal. Therefore, we believe that the marriage of the claimant and the NH in Ghana was valid, and as such, would be accepted as valid by the state of Maryland.

2. Opinion

Question Presented

On February 5, 2015, you requested a legal opinion regarding whether B~, the claimant, and Y~, the NH, were validly married in Ghana. 1

Short Answer

We believe that the claimant and the NH were validly married in Ghana, and therefore, that the state of Maryland, where the NH was domiciled at the time of her death, would recognize the claimant’s marriage to the NH as valid.

Background

According to the documents that B~ provided, his uncle, who was the head of the family, led a delegation on November XX, 2004, to the home of the family of Y~ to perform the rites of a customary marriage including the requisite drinks, when the hand of Y~ was given in a marriage to B~ in the presence of both families. Y~’s mother signed a similar declaration. Both declarations were signed by notaries in the Superior Court of Judicture in the High Court of Justice and both declarations acknowledged that Y~ was not present at the ceremony. However, Y~’s mother represented that Y~ had “accepted the request for her hand in marriage.” The Document entitled “Form of Register of Customary Marriages” indicates that B~, who resided in Ghana, had no other existing marriages, and that Y~ was a resident of the U.S.A. Y~’s mother’s declaration indicted that Y~ was a resident of Maryland. The birth certificates that B~ provided, although somewhat illegible, indicate the birth of two children to Y~ - J~, a male child, on November XX, 2007, and K~, a female child (date illegible). There is a document from the State of Maryland indicating that Y~ died at Holy Cross Hospital of breast cancer resulting in renal and respiratory failure on April XX, 2013. Y~ was 32 years old when she married B~ in 2004, and was 41 years old when she died. B~ informed the field office that he and Y~ were members of the Akan ethnic group in Ghana. B~ also submitted a document from the Register of Wills for Montgomery County, Maryland, indicating that on May XX, 2013, he was appointed as personal representative of the administration of the estate of Y~, who died intestate.

Discussion

In determining the validity of the surviving widower’s marriage to the deceased insured, the Agency applies the law of the State where the insured was domiciled, i.e., had a permanent home, at the time of the insured’s death. Section 216(h)(1)(A) of the Act, 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. In this case, the NH was domiciled in Maryland at the time of her death.

Maryland courts recognize a marriage as valid if it was valid where contracted or solemnized and does not violate Maryland public policy. See Henderson v. Henderson, 87 A.2d 403, 408 (Md. 1952) (citations omitted); Blaw-Knox Construction Equipment Co. v. Morris, 596 A.2d 679, 685-86 (Md. Ct. Spec. App. 1991) (citations omitted). As previously stated, B~ submitted documentation that he and Y~ were married in Ghana. Accordingly, Maryland will recognize the marriage between B~ and Y~ as valid if it was valid in Ghana.

We consulted with a foreign law specialist in the Global Legal Research Center of the Law Library of Congress in determining whether a valid marriage occurred in Ghana. The specialist informed us that Ghana recognizes three different forms of marriage; customary marriages, statutory marriages, and marriages contracted under Mohammedan rites. The specialist advised that there are no uniform statutory or procedural rules governing the process of contracting a valid customary marriage because membership in a particular ethnic group determines the applicable laws, and there are as many laws governing marriage and divorce as there are ethnic groups. Akan, the largest ethnic group in Ghana, consists of various subgroups, which include the Asante, Fenti, and Akwapim. Although there may be small variations from one group to another, the essential requirements for contracting a valid customary marriage in Ghana, including under the Akan rites are:

  1. Agreement by the parities to live together as man and wife;

  2. Consent of the family of the man that he should have the woman as his wife, which may be indicated by the man’s family acknowledging the woman as the wife of the man;

  3. Consent of the family of the woman that she should be joined in marriage to the man; which is indicated by the acceptance of drink from the man or his family, or merely by the family of the woman acknowledging the man as the husband of the woman; and

  4. Consummation of the marriage, i.e. that the man and the woman are living together in the sight of the world as man and wife.

Because Y~ did not attend the ceremony, we specifically inquired as to whether it was possible to contract a customary marriage by proxy in Ghana. The foreign law specialist cited case law which held that the presence at the ceremony was not required in order for a marriage to be valid. All of the above listed requirements of a customary marriage appear to be satisfied according to the Declarations that B~ provided.

Although marriages were not required to be registered after the passage of the Customary Marriage and Divorce (Registration) Amendment Law of 1991, B~ registered his marriage to Y~ with the Republic of Ghana. The registration was signed by the registrar and stamped with an official seal. Therefore, we believe that the evidence proffered supports a finding that the marriage of B~ to Y~ in Ghana was valid.

Conclusion

We believe that the marriage of the claimant and the NH in Ghana was valid, and as such, would be accepted as valid by the state of Maryland.

Sincerely,

Nora Koch

Acting Regional Chief Counsel

By: /s/Patricia M. Smith

Patricia M. Smith

Assistant Regional Counsel


Footnotes:

[1]

. We apologize for the delay in responding due to the necessity of foreign law research by the Library of Congress, and the need to contact the claimant for clarification of his tribal affiliation.


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http://policy.ssa.gov/poms.nsf/lnx/1503155138
PR 03155.138 - Ghana - 07/17/2015
Batch run: 07/17/2015
Rev:07/17/2015