For benefit entitlement purposes, you asked whether South Dakota would consider the
claimant’s arranged ceremonial marriage to the insured in Afghanistan valid.
For the reasons explained below, we are uncertain whether South Dakota courts would
consider the marriage invalid for want of an official marriage certificate of deed.
Nonetheless, we believe the claimant has provided sufficient evidence to support a
presumption of a valid ceremonial marriage under POMS GN 00305.030. Therefore, she is entitled to auxiliary benefits on the insured’s record.
According to information you provided, in October 2011, the claimant filed an application
for auxiliary benefits as the insured’s wife based on an alleged “arranged” ceremonial
marriage in Afghanistan.  The insured provided a detailed description of his “public wedding in Zermat/Afghanistan”
to the claimant in August 1968,  and she concurred with his account. The claimant added that her family lost all of
its belongings during the Russian invasion of Afghanistan, and that the United Nations
and the immigration judge “who allowed [them] to come to USA as refugees [in September
1982] and then [to become] citizens” recognized their marriage. See attached SSA-795s (Statements of Claimant or Other Person).
In Statements of Marital Relationship completed by the claimant and the insured, see SSA-754-F4s, both alleged they promised to spend the rest of their lives together
when they got married and have lived together continuously as husband and wife since
August 1968. The claimant remarked that she believed she was legally married to the
insured because “[i]n Afghanistan, a strange man [and] woman can only live together
if they are legally married.” Both denied any promise of a future ceremonial marriage
or ever living with another person as husband or wife. They provided the names, birthdates,
and birthplaces of children born of the marriage, beginning in 1970 in Afghanistan.
Both alleged they purchased and sold homes together and filed joint tax returns as
husband and wife.
Friends of the family and the claimant and the insured’s children also completed statements.
See SSA-753s (Statement Regarding Marriage). Each alleged the claimant and the insured
refer to one another as husband and wife and have lived together continuously for
The claimant also produced the following documentary evidence in support of her application
for benefits: a federal income tax refund check payable to the insured and the claimant
as husband and wife (i.e., to “Tofan & Lalbakhta ”); a 2004 real estate assessment
notice also addressed to them as husband and wife; and South Dakota birth certificates
(official and souvenir) for a child born in 1983 that list the claimant and the insured
as the parents and refer to them by the same last name. 
Entitlement to Wife’s (or Husband’s) Benefits
To qualify for wife’s benefits on the insured’s record, the claimant must show she
is the insured’s wife based upon a relationship described in 20 C.F.R. §§ 404.345
through 404.346. See 20 C.F.R. § 404.330. To decide a claimant’s relationship as the
insured’s wife, the agency looks to the laws of the state where the insured had a
permanent home when the claimant applied for wife’s benefits. If the claimant and
the insured were validly married under state law at the time the claimant applied
for wife’s benefits, the relationship requirement will be met. See id.
§ 404.345. Here, when the claimant applied for wife’s benefits, the insured resided
in South Dakota.
South Dakota Law
South Dakota will recognize as valid “[a]ny marriage contracted outside the . . .
state, except a marriage contracted between two persons of the same gender, which
is valid by the laws of the jurisdiction in which such marriage was contracted . .
. .” S.D. Codified Laws § 25-1-38. Thus, South Dakota will recognize as valid an opposite-sex
marriage that is valid under Afghan law.  Afghanistan’s Marriage Laws
Because there is currently not a precedent opinion on the requirements of a valid
arranged ceremonial marriage in Afghanistan, we requested advice from the Law Library
of Congress. As the attached opinion reflects, the legal research analyst determined
the Marriage Law, 1960 was the prevailing statute that regulated marriages in Afghanistan
in 1968. According to one secondary source,  “the validity of a marriage had to be evidenced by the official marriage certificate,
even if a marriage contract existed.” Under article 5 of the Marriage Law, 1960, the
courts would not consider any other form of evidence to establish a claim of marriage
other than the “nikah khat” or marriage certificate or deed.
Here, the claimant cannot produce an official marriage certificate or deed.  However, we are uncertain South Dakota courts would consider the claimant’s marriage
invalid under Afghan law for this reason. As the analyst explained, the pluralistic
and uncertain nature of the Afghan legal system makes it difficult to rely exclusively
on the codified law to determine the validity of the marriage. “[F]ormal sources of
laws like court decisions or statutes do not necessarily play as central a role in
determining what is ‘lawful’ . . . in Afghanistan as in the legal systems of other
countries.” Informal legal institutions and sources of law, such as “communal councils
or assemblies knows as shuras or jirgas,” exist today and likely did so in the late 1960s. Thus, the analyst concluded that
“it is within the realm of possibility that, even where some . . . formal institutions
may not recognize a marriage for want of a marriage certificate, it still may be valid
in the eyes of the more informal institutions of justice.”
While it is unclear whether South Dakota courts would consider the marriage invalid
for want of an official marriage certificate or deed, as explained below, we believe
the claimant has produced sufficient evidence to support a presumption of a valid
ceremonial marriage under agency policy.
The Agency May Presume a Valid Ceremonial Marriage under POMS GN 00305.030
Where, as here, a claimant is unable to obtain preferred or secondary proof of marriage,
see POMS GN 00305.020 and POMS GN 00302.025, and a ceremonial marriage is alleged, accompanied by cohabitation and repute, the
agency may apply the presumption of ceremonial marriage under POMS GN 00305.030(A).
The presumption of ceremonial marriage is strong, especially where supporting evidence
shows that the parties have lived together as husband and wife for many years, and
it can be rebutted only by convincing evidence to the contrary. The absence of a record
in the place where the marriage is alleged to have occurred will not in itself defeat
POMS GN 00305.030(A). In addition to information concerning the events surrounding the marriage ceremony,
see GN 00305.025(B)(1), the following evidence may support a presumption of a marriage:
Excerpts from naturalization certificates, deeds, immigration records, insurance policies,
or passports which indicate the parties as husband and wife;
Records which show a marital relationship such as business, employment, bank, fraternal,
school, labor, church, or other records;
Purchase agreements, contracts, or leases executed by both parties, letters to both
parties, or letters from one party to the other indicating a marital relationship.
POMS GN 00305.030(B)(2)(a). The following is evidence of a husband-wife relationship:
Automobile titles made out jointly in the names of the claimant and the worker;
Wills naming the other party as a spouse;
Any other evidence indicating a spousal relationship.
POMS GN 00305.030(B)(2)(b).
The claimant presented evidence that we believe is sufficient to support a presumption
of ceremonial marriage under the POMS. The federal tax refund check and the 2004 real
estate assessment notice support the claimant and the insured’s statements that they
filed taxes jointly as a married couple and purchased property as husband and wife.
Birth certificates dating back to 1983 that list the claimant and the insured as the
child’s parents and refer to them by the same last name are also consistent with a
marital relationship. Therefore, the claimant is entitled to auxiliary benefits on
the insured’s record.
We are uncertain whether South Dakota courts would consider the claimant’s marriage
to the insured invalid for want of an official marriage certificate or deed. Nonetheless,
we believe the claimant has provided sufficient supporting evidence to support a presumption
of a valid ceremonial marriage under POMS GN 00305.030(A). Therefore, she is entitled to auxiliary benefits on the insured’s record.
John Jay Lee
Acting Regional Chief Counsel,
Yvette G. Keesee
Assistant Regional Counsel