TN 5 (04-12)
PR 05405.046 South Dakota
A. PR 12-067 Relationship of Claimant to NH Based on Arranged Marriage in State of South Dakota, NH – Tofan – REPLY
DATE: March 7, 2012
It is unclear whether South Dakota courts would consider the claimant’s arranged ceremonial marriage in Afghanistan invalid because of the lack of an official marriage certificate or deed; however, the claimant submitted sufficient evidence to support a presumption of a valid ceremonial marriage for entitlement purposes.
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 many years.
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 the presumption.
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
The only reference to an “arranged marriage” in the documents we received is a statement by Janet , who alleged she has known the claimant and the insured since they immigrated to South Dakota nearly 30 year ago, that “Tofan has spoken of their arranged marriage.” See attached SSA-753.
The insured stated:
I purchased 80 meters of different colors of silk, two sheep, 300 pounds of rice, bushels of dry fruits & candy, along with other supplies, which was handed over to 15 women (including two of my sisters & my grandmother) who traveled 20 miles to Lalbakhta’s village where they joined many other women (including her mother and her sister) on August 6th, 1968.
All of the women group worked 3 days to sew La[l]bakhta’s wedding dress, fix her hair, makeup, etc. They sang, played drums, [and] girls danced along.
The afternoon of August 8, 1968, Lalbakhta was accompanied by 15 women, her older sister, [and] two of her aunts to come to my house[.] Everyone joined our wedding celebrations[.] They danced, sang, played drums, ate foods[.] Their number was in the 100s[.] At 9:30 pm, a clergy man of my tribe assigned two elders (one from each village) to witness & hear our pledge of marriage as husband & wife. Lalbakhta is the only one I have been married [to] my whole life.
It appears that in 1983, the family’s surname was Tofan (now the insured’s first name), and the insured used A~ (now the family’s surname) as his middle name. In 2004, the State of South Dakota Department of Health amended the child’s official birth certificate to reflect a name change from A Tofan to Asa.
We did not consider whether the claimant and the insured could have established a valid common law marriage while living in South Dakota, since the state does not does not recognized common law marriages contracted in the state on or after July 1, 1959. See S.D. Codified Laws § 25-1-29.
The analyst was unable to locate a printed or online English translation of the law and had to rely on secondary sources. He cautioned these factors made it difficult to assess the validity of a marriage that occurred in 1968 and to determine “whether there were specific provisions in the law that regulated ‘arranged marriages’ in particular.”