QUESTION PRESENTED
               For benefit entitlement purposes, you asked whether South Dakota would consider the
                  claimant’s arranged ceremonial marriage to the insured in Afghanistan valid.
               
               SHORT ANSWER
               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.
               
               BACKGROUND
               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. [1] The insured provided a detailed description of his “public wedding in Zermat/Afghanistan”
                  to the claimant in August 1968, [2] 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. [3]
               DISCUSSION
               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. [4] 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, [5] “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. [6] 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:
               
               
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                           Excerpts from naturalization certificates, deeds, immigration records, insurance policies,
                              or passports which indicate the parties as husband and wife;
                           
                           
                         
                      
                   
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                           Records which show a marital relationship such as business, employment, bank, fraternal,
                              school, labor, church, or other records;
                           
                           
                         
                      
                   
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                           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:
               
               
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                           Automobile titles made out jointly in the names of the claimant and the worker;
                           
                         
                      
                   
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                           Wills naming the other party as a spouse;
                           
                         
                      
                   
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                           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.
               
               CONCLUSION
               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,
               
               By:________________
 Yvette G. Keesee
 Assistant Regional Counsel