TN 6 (11-12)
PR 05405.048 Texas
A. PR 12-136 Texas State Law – Texas Recognition of Marriage Contracted in India with Later Divorce (NH K~, SSN ~) – REPLY
DATE: September 21, 2012
We look to Texas law, where the number holder was domiciled at the time of the claimant’s application for divorced spouse’s benefits, to determine the validity of their marriage and divorce for the purpose of determining the claimant’s eligibility for divorced spouse’s benefits. It is likely that a Texas court would apply India’s laws to the marriage and divorce. The 1951 marriage and 1969 divorce are both valid under Hindu marriage and divorce laws and we believe a Texas court would, therefore, find both the 1951 marriage and 1969 divorce valid.
Effective 1/1/70, where the marriage relationship was not valid because there was a prior undissolved marriage, a marriage becomes valid when the prior marriage is dissolved if, since that time, the parties have lived together as husband and wife and presented themselves to others as being married.
You have asked whether Karamsinh (the NH), who resides in Texas, and Jalanben , who resides in Illinois, obtained a valid marriage and divorce in India to determine Jalanben eligibility for divorced spouse’s benefits.
We believe that the State of Texas would apply the laws of India in determining the validity of the NH’s and Jalanben marriage and divorce. Based on information obtained in a new report from the Law Library of Congress, we believe that the NH and Jalanben had a valid Hindu marriage beginning on May 27, 1951, which ended in divorce in December 1969.
In August 2009, the NH, who resides in Texas, filed an application for retirement insurance benefits under Title II of the Social Security Act (Act) and reported that he was presently married to Urmillawat Karamsinh, whom he had married on June 25, 1973. The NH was born August . He reported that he had no previous marriages that lasted 10 years or more or ended in death; however, in the remarks portion of the application, he stated that he “had a pre-arranged marriage as a child in India,” and that “the marriage was resolved in 1969.” The Social Security Administration (agency) granted the NH’s application for retirement benefits.
In February 2011, Jalanben, who resides in Illinois, filed an application for divorced spouse’s benefits on the NH’s account. Jalanben was born February. In her application, Jalanben stated she was not presently married, but that she had a prior marriage to the NH on May 27, 1951, and that the marriage ended in divorce on December 12, 1969, in India.
In this case, there is no preferred proof of marriage or divorce. Thus, the agency has appropriately developed secondary evidence as to both the marriage and divorce. See Program Operations Manual System (POMS) POMS GN 00305.025 (secondary proof of ceremonial marriage), GN 00305.140 (proof of marriage termination – general), GN 00305.170 (determining validity of divorce). The agency contacted the NH to obtain assistance in establishing Jalanben entitlement to divorced spouse’s benefits, and the NH provided two statements (Form SSA-795) dated August 15, 2011, and May 29, 2012, detailing his marriage to and divorce from Jalanben in India. In these forms, the NH stated that he and Jalanben married on May 27, 1951, during an arranged Hindu marriage ceremony in India when they were children. According to the dates of birth and the date of the marriage ceremony (May 27, 1951), the NH was 7 years old and Jalanben was 6 years old at the time of this first ceremony. The NH explained that in accordance with their village customs, their fathers arranged the marriage and that all guardians freely consented to the arranged marriage. The NH explained that he and Jalanben were not blood relatives, and that they were not married to others at the time of their marriage. The NH stated that the marriage and ceremonies were in accordance with Shastric Hindu requirements and with customs of the NH’s and Jalanben caste ( Rabari) and community customs.
Regarding the first ceremony, in his August 2011 statement, the NH referred to this 1951 ceremony as “the original promise ceremony.” In his May 2012 statement, the NH explained that the 1951 ceremony was an elaborate solemnized marriage ceremony conducted by a Hindu priest in accordance with Shastric Hindu requirements, and which involved the seven vows of the saptapadi. He offered details of this ceremony. The NH explained that he and Jalanben were considered married, as opposed to engaged, following this 1951 ceremony.
Regarding the second ceremony, the NH stated that he and Jalanben underwent a second ceremony in India in 1958 or 1959, after which time they began living together as husband and wife with the NH’s family in India. The NH explained that the second ceremony is performed after the girl is over 13 years of age and as a celebration of her leaving her home to live with the boy’s family. The NH stated that the second ceremony was also a required solemnized ceremony that a Hindu priest conducted in accordance with Shastric Hindu requirements. He offered details of this second ceremony. The NH and Jalanben had a son in 1964.
In his August 2011 statement, the NH stated that in 1969 when he wanted to leave India and move to the United States, he and Jalanben made “a declaration of divorce” to their community leaders. The NH stated that there was no government record of the divorce, no deed of release, or any paperwork documenting the divorce, only “the declaration [of divorce] of the community.” In his May 2012 statement, he offered more details of the divorce and of the divorce customs in his tribe. The NH stated that he and Jalanben both agreed to the divorce because “it was not working at all.” In this statement, the NH reported that at the time of their divorce on “approximately” December 12, 1969, he had already begun to live in the United States and that Jalanben had continued to live with his family in India. The NH stated that his family rejected him following the divorce and said he was “dead” to them, but that his family told Jalanben that she was their daughter and should continue to live in their household. The NH stated that after the divorce in 1969 and his move to the United States, Jalanben continued to live with their son and the NH’s family in India for many years. The NH stated that Jalanben “always lived at the family home – my family home. Now she is living with our son. She lived in the Karamsinh family home more than 30 years and it is always considered as her own home.”
In his August 2011 statement, the NH stated that years later when his son wanted to move to the United States, the NH had to travel back to India and “verify that there was no legal document” of the marriage or divorce. We assume the NH needed the affidavits to establish his legal relationship with his son in order to allow his son to come to the United States. At that time, the NH stated that he asked family friends who were present at the marriage and divorce to prepare affidavits attesting to these events. These affidavits, described below, were submitted to the agency as evidence of the marriage and divorce between the NH and Jalanben.
On December 1, 1990, two of the NH’s relatives provided a signed “Affidavit of Marriage of Karamsinh and Jalanben ,” containing the signature and seal of an Executive Magistrate in Sidhpur, India, to provide proof of the marriage between the NH and Jalanben because there was no registration of the marriage with India’s government. The relatives provided this declaration stating that they witnessed the May 27, 1951 marriage ceremony of the NH and Jalanben in Bokarwada, Taluka Visnagar, Dist. Mehsana, Gujarat State. Further, they stated that “several Hindu Brahmin Priests had solemnized the marriage ceremony” of the NH and Jalanben “along with several marriageable couples who came there for their marriage in a customary group marriage as is a custom with our shepherd community.” Finally, they stated that it was not customary in those days to register the “marriages of our castes” in the Government Register.
On July 7, 1993, the same two relatives provided a signed “Affidavit of Divorce” containing the signature and seal of an Executive Magistrate in Mehsana, India, to provide the facts of the divorce of the NH and Jalanben because there was no legal court certificate reflecting the divorce. The relatives provided this declaration stating that they had witnessed the May 27, 1951 marriage ceremony; that the NH and Jalanben had a son on June 1, 1964; that the marriage of the NH and Jalanben lasted from 1951 to 1969; that the marriage ended in 1969 before the NH moved to the United States; that the NH and Jalanben agreed that their son would stay with Jalanben in India until he became an adult; and that the NH would have responsibility for their son once he became an adult. Further, they stated that “it is customary to decide and declare the validity or otherwise of the marriages and the divorces in the community by community leaders, and as the decisions on marriages and divorces are taken periodically and in the groups, the legal court certificate of divorce is not available in the case of the divorce” of the NH and Jalanben.
Finally, the NH explained in his August 2011 statement that he did not list his marriage to Jalanben on his application for retirement benefits because “it was not considered a legal marriage,” so he instead referenced the marriage in the remarks portion of the application. It is our understanding, however, that the NH is not contesting Jalanben entitlement to divorced spouse benefits. Indeed, he has provided two detailed statements to the agency offering details of the marriage and divorce to support Jalanben entitlement to divorced spouse’s benefits.
Entitlement to Divorced Spouse’s Benefits
A claimant may be entitled to benefits as a number holder’s divorced spouse under the Act if the claimant can show, among other things, that the claimant was validly married under state law to the NH for 10 years immediately before the date the divorce became effective. Sections 202(b), 216(d)(1), and 216(h)(1)(A)(i) of the Act; 20 C.F.R. §§ 404.331(a), 404.345; POMS RS 00202.001, RS 00202.005, GN 00305.005. The Act provides that a claimant is validly married to a number holder for Social Security purposes if, at the time the application is filed, the courts of the state in which the number holder had a permanent home at the time of filing would find that the claimant and the number holder were validly married. Section 216(h)(1)(A)(i) of the Act; 20 C.F.R. §§ 404.331, 404.345; POMS RS 00202.001(A); GN 00305.005(B). Because the NH was domiciled in Texas at the time Jalanben filed the application, we look to Texas state law to determine whether their marriage and divorce was valid.
Texas Would Apply India’s Laws to Determine the Validity of the Marriage and Divorce
Because their marriage and divorce took place in India and because application of the laws of Texas and India would likely result in differing outcomes, a choice of law analysis is required. Thus, the initial question is whether Texas would apply the laws of India or Texas in determining the validity of this marriage and divorce between the NH and Jalanben. Historically, in choice of law decisions, Texas courts applied the law of the place of marriage or divorce to determine its validity (the place of celebration test). See Braddock v. Taylor, 592 S.W.2d 40, 42 (Tex. Civ. App. – Beaumont 1979, writ ref’d n.r.e.); Portwood v. Portwood, 109 S.W.2d 515 (Tex. Civ. App. – Eastland 1937, writ dismissed). However, the Texas Supreme Court held in Duncan v. Cessna Aircraft Co., 665 S.W. 2d 414 (Tex. 1984), Texas should follow the Restatement (Second) of Conflicts’ most significant relationship test in choice of law cases, except where the parties have agreed to a valid choice of law clause. Section 6 of the Restatement (Second) of Conflicts sets forth the following choice of law principles:
(1) a court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law;
(2) when there is no such directive, the factors relevant to the choice of the applicable rule of law include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum (the place of the trial),
(c) the relevant policies of other interested states and the relevant interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability, and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
In applying the most significant relationship test, it is not the number of contacts with a particular state or country that determines which law controls; rather it is the qualitative nature of the particular contacts. D~, 665 S.W.2d at 421.
Following D~, Texas courts of appeals have applied the most significant relationship test to choice of law questions in the context of marriage and divorce. See Seth v. Seth, 694 S.W.2d 459, 462-64 (Tex. App. – Forth Worth 1985, no writ). Thus, we must utilize the Restatement factors of the most significant relationship test to determine whether a Texas court would apply Texas or Indian law in deciding the validity of the NH’s and Jalanben Indian marriage and divorce.
As addressed in detail in our prior opinion dated March 9, 2012, the S~ case offers helpful guidance in examining how a Texas court would analyze the present facts under the significant relationship test. S~, 694 S.W.2d 459. The S~ case addressed the question of whether Islamic law or Texas law should apply to divorce proceedings in Texas, where prior marriage and divorce ceremonies also at issue all occurred under Islamic law in India and Kuwait. The S~ court determined that the Restatement factors of the relevant policies of the forum (Texas) and the protection of the parties’ justified expectations required application of Texas law to resolve the issues raised by the marriage and divorce ceremonies that occurred in Kuwait and India. Id. at 462-464. We determined that, under the specific circumstances and facts of the present matter, these same two Restatement factors require applying India’s laws to determine the validity of the NH’s and Jalanben marriage and divorce. Further, we determined that a majority of the remaining Restatement factors also support applying India’s laws. Accordingly, as addressed in our prior opinion dated March 9, 2012, we believe that a Texas court, in weighing the Restatement factors of the most significant relationship test with the specific facts of this matter, would find that India’s laws should be applied to determine the validity of the NH’s and Jalanben marriage and divorce. Therefore, we must apply Hindu law from the 1950s and 1960s to determine the validity of the marriage and divorce.
The 1951 Marriage is Valid Under Application of Hindu Marriage Laws
The Law Library of Congress Provided Information on Hindu Marriage Laws of the 1950s
Consistent with our established practice when a legal opinion request involves interpretation of foreign law, we sought guidance from the Law Library of Congress regarding the laws of marriage and divorce in India applicable to Hindus in the 1950s and 1960s. See Law Library of Congress, India, Hindu Marriage and Divorce Laws, No. 2012-008337 (August 2012) (attached); Law Library of Congress, India, Hindu Marriage and Divorce Laws, No. 2012-007370 (February 2012) (attached). In the February 2012 report in response to our initial request for assistance, the Law Library of Congress explained that a Hindu marriage in India is not valid unless it is solemnized with proper ceremonies and rites. The Law Library of Congress was unable to provide information regarding the validity of the NH’s and Jalanben marriage based on the limited information initially provided in the NH’s August 2011 statement and the relatives’ affidavits. Thus, in our March 9, 2012 opinion, we requested additional information regarding the NH’s and Jalanben caste and community, as well as a description of the customs involved, the form of their marriage, the specific wedding ceremonies involved, and the arrangement process and the role of guardians. We also asked for information needed to determine that the parties were not related and the marriage was not bigamous.
Further, in this February 2012 report, the Law Library of Congress explained that it was unable to provide information regarding the validity of the NH’s and Jalanben divorce also due to incomplete information. Thus, in our March 9, 2012 opinion, we requested additional information on the actual process of the divorce, including a description of the custom of divorce in their caste and community; a description of any ceremonies, rites, and rituals performed; who authorized or declared the divorce; whether the divorce was based upon mutual agreement; the grounds or basis for the divorce; and whether any paperwork was completed, such as a deed of release.
The agency sought to further develop the record by conducting a telephone interview and obtaining a second statement from the NH in May 2012. With this additional information, we again sought information from the Law Library of Congress, which responded on August 31, 2012. The following analysis is based upon the August 2012 Law Library of Congress report.
Because the 1951 Ceremony is the Solemnized Marriage Ceremony, Uncodified Hindu Law and Customs of the Rabari Caste Apply to Determine the Validity of the Marriage
As noted, a solemnized marriage ceremony is required for a valid Hindu marriage. The Law Library of Congress noted that after India gained independence from Britain in 1947, attempts were made to modernize Hindu legal tradition through codification, and that in the 1950s and 1960s, the Hindu Marriage Act of 1955 was the predominant legislative framework for the regulation of Hindu marriage and divorce in India. Further, the Bombay Registration of Marriages Act of 1953 was in force in the State of Bombay, which at the time included the territory of Gujarat, where the NH and Jalanben lived at the time of their marriage. Prior to 1955, however, uncodified Hindu law and custom was the prevailing framework regulating family matters, including marriage and divorce in India. Thus, to determine the applicable Hindu law, the initial question was whether the 1951 ceremony or the 1958 ceremony was the solemnized marriage ceremony.
In his August 2011 statement, the NH referred to the 1951 ceremony as “the original promise ceremony,” indicating it was a betrothal (sagai) or engagement ceremony. However, in his May 2012 statement, the NH explained in detail that the 1951 ceremony was a solemnized wedding ceremony and that he and Jalanben were married after that ceremony. Both affidavits provided by the NH’s relatives also refer to the 1951 ceremony as the solemnized marriage ceremony, state that the marriage began in 1951, and do not mention the second ceremony in 1958 or 1959.
Accordingly, based on the evidence provided, the 1951 ceremony was the solemnized marriage ceremony between the NH and Jalanben. The NH further stated that he and Jalanben were both of the Karamsinh, Rabari caste. Thus, because the 1951 ceremony is the solemnized marriage ceremony, the Law Library of Congress indicated that uncodified Hindu law and custom and relevant customs of the Rabari caste would apply in analyzing this issue of the validity of the marriage and divorce of the NH and Jalanben.
The 1951 Marriage Ceremony Is a Solemnized Marriage Ceremony that Is Consistent With Hindu Law and the Rabari Caste Customs
The Law Library of Congress stated that under Hindu law, a solemnized marriage ceremony is required and all essential ceremonies, rites, and rituals must be performed to establish a valid Hindu marriage. See T.P. GOPALAKRISHNAN, HINDU MARRIAGE LAW at 46 (2d ed. 1959) (stating that ceremonies “of some sort are absolutely essential” to a Hindu marriage; “[a]s the ceremonies are so elaborate, and as custom sanctions variations in the ceremonies, law does not require strict proof of performance of ceremonies in every case. When it’s shown that a marriage has been performed in fact there would be a presumption that it was regularly performed in accordance with law.”); D.H. CHAUDHARI, THE HINDU MARRIAGE ACT, 1955 at 90 (3d ed. 1966) (stating that, “[m]arriage ceremonies vary[,] indeed in some cases, vary considerably, from one place to another and from one community to another. . . . Where the custom of the caste to which the parties belong observes certain ceremonies, those ceremonies should be observed); SATYAJEET A. Karamsinh, PRINCIPLES OF HINDU LAW at 663 (7th ed. 2000) (a marriage may be completed by the performance of ceremonies in accordance with the custom of the caste to which the parties belong). As noted, the evidence indicates that the 1951 ceremony is the solemnized marriage ceremony. Thus, the focus is upon determining whether the 1951 ceremony as described by the NH is consistent with applicable customs, ceremonies, rites, and rituals.
The Law Library of Congress located some information on the local customs and practices of marriages of the Rabari caste. See Eiluned , Marriage and Dowry Customs of the Rabari Kutch: Evolving Traditions in Wedding Dress Across Cultures 72 (Helen Bradley Foster & Donald Clay Johnson eds., 2003); S.K. Nandi, Rabari, in 22 People of India: Gujarat: Part Three 1160 (Kumar Suresh Singh & Rajendra Behari eds., 2002); Robyn, Wandering With India’s Rabari, 184(3) National Geographic 80 (Sept. 1993). The Law Library of Congress concluded that the NH’s description of the 1951 marriage ceremony and the description of the ceremony in the two affidavits of relatives were more or less consistent with uncodified Hindu law and the local customs and practices of the Rabari caste.
The Lack of Registration Does Not Invalidate the 1951 Marriage
Prior to the Bombay Registration of Marriages Act of 1953 and the Hindu Marriage Act of 1955, there was no marriage registration system. Thus, the lack of registration of the 1951 marriage does not impact the validity of the marriage under India’s laws.
The Underage Status of the NH and Jalanben Does Not Invalidate the 1951 Marriage
Regarding the underage status of the NH and Karamsinhi at the time of 1951 marriage, the Law Library of Congress stated that the underage status of the parties to the arranged marriage does not affect its validity and does not by itself render a marriage void or voidable under India’s laws. The Law Library of Congress concluded that child marriages appeared to be consistent with Hindu law and the customs of the Rabari people at the time of their marriage. Thus, the underage status of the NH and Karamsinhi does not render their 1951 marriage invalid under India’s laws.
The NH and Jalanben Were Validly Married in 1951 Under Hindu Law
In summary, the evidence provided indicates that the NH and Jalanben were validly married in 1951 in accordance with Hindu custom. Following the second ceremony in 1958 or 1959, the NH stated that he and Jalanben began living together with his family as was also customary. They had a son in 1964 and lived together for a total period of ten or eleven years until their divorce in 1969, at which time the NH moved to the United States. As the Law Library of Congress noted, there is “an extremely strong presumption of favour of the validity of a marriage and the legitimacy of its offspring if from the time of the alleged marriage the parties are recognized by all persons concerned as man and wife.” See SATYAJEET A. JALANBEN, PRINCIPLES OF HINDU LAW at 664. Based on the evidence provided and the Law Library of Congress’s report, we believe a Texas court, applying the applicable Hindu law, would find that the NH and Jalanben had a valid marriage in India beginning in 1951 with the first ceremony. See R.M. v. S.R.M., 867 N.Y.S.2d 378 (N.Y. Sup. 2008) (applying Hindu law and determining that the plaintiff and defendant, members of the Kamma subcaste and Sudra caste, were validly married in accordance with their caste customs in India in 1952). Accordingly, under the Act, the NH and Jalanben had a valid marriage beginning 1951.
The 1969 Divorce is Valid Under Application of Hindu Divorce Law
The evidence indicates that the NH and Jalanben obtained a divorce from community leaders in 1969 by making a declaration of divorce, as was their community’s custom. The affidavit evidence from relatives corroborated the NH’s statements regarding divorce. The Law Library of Congress stated that general Hindu law does not recognize divorce. However, the Law Library of Congress explained that parties to a Hindu marriage could obtain dissolution of the marriage in accordance with a valid custom. See SATYAJEET A. Karamsinh, PRINCIPLES OF HINDU LAW at 666; Hindu Marriage Act of 1955, § 29. A divorce by custom requires mutual agreement of the parties to the marriage to terminate the marriage. See D.H. CHAUDHARI, THE HINDU MARRIAGE ACT, 1955 at 352-353 (also noting that a divorce according to a caste custom is generally followed by a deed of release).
The Law Library of Congress also found information indicating that, unlike some Hindu communities, the Rabari caste appears to recognize divorce. See S.K. Nandi, Rabari, in 22 PEOPLE OF INDIA: GUJARAT: PART THREE 1159 (Kumar Suresh Singh & Rajendra Behari eds., 2002); Robyn , Wandering With India’s Rabari, 184(3) NATIONAL GEOGRAPHIC 80 (Sept. 1993). According to an anthropological survey, either spouse can divorce due to maladjustment or incapability to earn a livelihood. See S.K. Nandi, Rabari, in 22 PEOPLE OF INDIA: GUJARAT: PART THREE 1159 (Kumar Suresh Singh & Rajendra Behari eds., 2002).
Although the NH provided additional facts describing the custom of divorce for his community and the process of his and Jalanben divorce, the Law Library of Congress was unable to find information on the process and particulars of the relevant customs of the Rabari caste to conclude that the NH’s and Jalanben divorce process was consistent with custom. However, in light of the Law Library of Congress’s confirmation that the NH and Jalanben had a valid marriage pursuant to their custom, that a divorce by custom is permissible under Hindu law, and that the Rabari caste recognized the practice of divorce, we believe that a Texas court would likely have sufficient information to find that the NH and Jalanben obtained a valid divorce by custom in 1969. Accordingly, under the Act, the NH and Jalanben were divorced effective December 1969.
The 1969 Divorce is Valid Under Application of Principles of Equity
Even if, however, a Texas court was unable to determine with certainty the validity of their divorce under India’s laws based on the information available regarding the divorce process of the Rabari caste, we believe a Texas court would uphold the divorce as valid. We believe a Texas court would look at the totality of the evidence and apply equitable doctrines of estoppel or laches based on the following factors: the parties’ domicile in India at the time of their marriage and divorce, the parties’ mutual consent and participation in their divorce, the passage of time since their divorce, the NH’s reliance on the divorce when he remarried in 1973, and the NH’s current marriage lasting 39 years. See Social Security Ruling (SSR) 91-4, 1991 WL 298378 (S.S.A. June 25, 1991) (the agency considered the issue of whether Texas would recognize as valid a Haitian divorce decree and whether a claimant who was a party to the divorce would be estopped from denying its validity, concluding that whether or not a Texas court would recognize the Haitian divorce, the claimant would be estopped from challenging its validity); see also Memorandum from Regional Chief Counsel, Denver Region VIII, to Center for Operations and Systems Support, Denver/Dallas RSI Team, Marital Status of Zora (May 15, 2000) (concluding that a Colorado or Maryland court would likely apply the doctrine of laches and/or estoppel and bar the claimant from contesting the validity of a Haitian divorce obtained almost 25 years prior, particularly given that the claimant had since remarried in reliance on the divorce); Memorandum from Regional Chief Counsel, Philadelphia Region III, to Ass’t Reg. Comm. – MOS, Philadelphia, Validity of Dominican Republic Divorce NH: Thomas , Claimant: Cynthia (May 27, 2003) (concluding that a Virginia court would probably accept the Dominican Divorce as valid under the equitable doctrine of estoppel by laches, and as such, the claimant would qualify for divorced spouse’s benefits). We note that the agency’s operating instructions also comport with this conclusion. See POMS GN 00305.175(A)(2) (a person may be estopped from denying the validity of a divorce if he or she was the plaintiff in the divorce action; was the defendant and accepted the court’s jurisdiction; remarried after the divorce; accepted property, money, or a settlement on the basis of the divorce decree; or otherwise accepted or acted in recognition of the decree as valid (e.g., knew of the divorce and allowed it to stand unchallenged for a long time)). Accordingly, the following factors support our conclusion that a Texas court would uphold the validity of the divorce on principles of equity.
The first factor in support of upholding the validity of the divorce is the parties’ connection to India during their marriage and at the time of the divorce. The NH and Jalanben were residents of India at the time of their marriage and divorce. Jalanben continued to live in India for many years after the divorce. India properly had jurisdiction of this matter. See SSR 91-4, at 3 (a key factor which a Texas court would consider in determining whether to give effect to a foreign divorce decree is whether the parties to the divorce were domiciled in the foreign country when the decree was entered), citing Williams v. North Carolina, 325 U.S. 226(1944) (“[u]nder our system of law, judicial power to grant a divorce - jurisdiction strictly speaking - is founded on domicile .... Domicile implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance”). This is not a case in which one party to a marriage surreptitiously traveled to a foreign country having no connection to either party to the marriage for the sole purpose of obtaining a divorce. Instead, this matter involves a marital relationship between citizens of India that took place entirely in India. Therefore, a Texas court would likely find that this factor supports upholding the divorce as valid under principles of equity.
A second factor in support of upholding the validity of the divorce based on principles of equity is the parties’ consent to their divorce. The evidence indicates that the NH and Jalanben participated together in the divorce process, mutually agreed upon the divorce, and consented to the divorce pursuant to their custom. There is no evidence that either party procured the divorce fraudulently or through duress. See SSR 91-4 at 4 (noting that Texas courts have generally held that, where the parties to a foreign divorce have consented to the divorce and have submitted to the jurisdiction of the foreign court, they will be estopped from collaterally attacking the judgment; the agency concluded that the claimant’s consent to the divorce would be sufficient to allow a Texas court to estop the claimant from challenging its validity as there were no allegations of duress or coercion), citing Dunn v. Tiernan, 284 S.W.2d 754 (Tex. Civ. App. – El Paso 1955, writ ref’d n.r.e.) (applying doctrines of equitable estoppel and laches, the court held that the husband, who obtained bilateral divorce in Mexico was estopped from later denying the validity of the Mexican divorce given the lapse in time and the wife’s action in reliance upon the divorce). Thus, this factor weighs in favor of upholding the divorce.
A third factor in support of upholding the validity of the divorce is the length of time which has expired since the divorce was rendered, and the NH’s reliance upon the validity of the divorce with his remarriage. See SSR 91-4 at 4-5 (noting that because more than 10 years elapsed between the date of the divorce and the date the claimant applied for benefits, a Texas court could apply laches against the claimant, particularly where there is also evidence of a resulting disadvantage to another, such as a remarriage during the lapse in time). Over 40 years has passed since the divorce in 1969, and it is our understanding that no one has contested this divorce during this great passage of time. The NH and Jalanben have lived separately during this entire period of time, as the NH moved to the United States in 1969. Further, the NH relied upon the validity of the dissolution of his marriage to Jalanben when he married his present wife, Urmillawat Karamsinh, in the United States on June 25, 1973. The NH has remained married to Urmillawat Karamsinh since that time. The NH and Urmillawat Karamsinh have in good faith believed that they are married and have been living together in Texas as a married couple for almost 40 years. Texas has an interest in upholding the marriage between the NH and Urmillawat Karamsinh. The presumption of the validity of the most recent marriage is one of the strongest under Texas law. Texas Employer's Ass'n v. Elder, 282 S.W.2d 371, 373 (Tex. 1955); Schacht v. Schacht, 435 S.W.2d 197, 201 (Tex.Civ. App. - Dallas 1968, no writ). Accordingly, the length of time and the NH’s reliance upon the divorce with his remarriage supports upholding the validity of his divorce from Jalanben based on principles of equity.
Finally, we note that no one is challenging the validity of the divorce between the NH and Jalanben. Jalanben is presently of the position that she is the NH’s divorced spouse as she has applied for divorced spouse’s benefits. The NH has willingly supplied two detailed statements to the agency in support of Jalanben application for divorced spouse’s benefits on his record.
Therefore, based on the totality of the evidence and our extensive research, we believe a Texas court would ultimately uphold as valid the NH’s and Jalanben divorce, whether by finding it valid pursuant to India’s laws or through applying principles of equity. Accordingly, under the Act, the NH and Jalanben had a valid divorce effective in December 1969.
As addressed in our prior legal opinion dated March 9, 2012, we believe the State of Texas would apply India’s laws relevant to Hindu marriage and divorce in the 1950s and 1960s to determine whether the NH and Jalanben were validly married and subsequently validly divorced. As explained above, based on the totality of the circumstances in this particular case and information obtained from the Law Library of Congress regarding the applicable Hindu law, we believe a Texas court would find that the NH and Jalanben were validly married in 1951 and validly divorced in 1969.
Regional Chief Counsel
Assistant Regional Counsel
B. PR 04-078 Whether Claimant is Barred From Establishing a Valid Marriage After Impediment to the Marriage was Removed - Reply
DATE: February 12, 2004
Texas law provides that a marriage, although void due to an existing prior marriage by one of the parties, may become a valid marriage upon dissolution of the previous marriage.
You have requested a legal opinion regarding whether a claimant, George, is barred from establishing a common-law marriage to Lillie, the deceased number holder (DNH), which would result in his eligibility for widower's benefits. You expressed a concern that the previous marriage of the DNH was not discovered until almost twenty years after her death. As discussed below, George and the DNH established a valid marriage under Texas law.
The DNH married James on January 25, 1963, as evidenced by a marriage certificate. Later, the DNH married George on May 20, 1971, as evidenced by a marriage certificate. The DNH took the name of Lillie. George and the DNH lived together from May 20, 1971, until about a year before her death on March 31, 1982. The DNH's death occurred in Texas. From March 1982 through November 1988, George filed for and received the lump-sum payment and father's benefits based on the 1971 ceremonial marriage and having entitled children in his care. See 20 C.F.R. §§ 404.331; 404.339. In 2002, when James filed a surviving divorced spouse claim, George discovered that the DNH's previous marriage to George had not ended before George and the DNH were married. However, the DNH divorced James on October 5, 1973.
When determining who is a husband for purposes of entitlement to Social Security benefits, the Social Security Administration (Agency) looks to the laws of the state where the insured numbered holder had a permanent home at the time the application was filed, or at the time of the insured's death. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345 (2003). The DNH resided in Texas when she died. Thus, Texas law would be applicable to determine the relationship between a claimant and a deceased wage earner who died while residing in Texas. Id.
Current Texas law presumes every marriage valid unless a strong reason exists for holding the marriage void. Tex. Fam. Code Ann. § 1.101 (Vernon 2003). The most recent marriage of a party is presumed to be the valid one, unless an impediment, such as the presence of a prior marriage, is proven. Tex. Fam. Code Ann. § 1.102. A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse. Tex. Fam. Code. Ann. § 6.202(a). A later void marriage becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties lived together as husband and wife and represented themselves to others as being married. Tex. Fam. Code. Ann. § 6.202(b). Representing oneself as married can be established by word or conduct. See Ballesteros v. Jones, 985 SW2d 485, 491 (Tex. App. - San Antonio 1998, no writ). A marriage will be recognized as beginning on the date that the prior marriage ends. Caddel v. Caddel, 486 S.W.2d 141, 143-145 (Tex. App. - Amarillo 1972, no writ). Section 6.202 became effective on April 17, 1997. S. B. 334, 75th Legislature (1997) (enacted); 1997 Tex. Sess. Law Serv. Ch 7 (S.B. 334) (VERNON's). Prior to the enactment of section 6.202, this section was codified in section 2.22 of the Texas Family Code. See C~, 786 S.W.2d at 145 (expressly states the language of section 2.22 of the Texas Family Code as being in effect in 1972). Additionally, section 6.202 notes that this prior statute was enacted in 1969 as Texas Family Code section 2.22. S. B. 334, 75th Legislature (1997) (enacted); 1997 Tex. Sess. Law Serv. Ch 7 (S.B. 334) (VERNON's). Therefore, this language was in effect on October 5, 1973, the date of dissolution of the DNH's prior marriage.
The DNH's marriage to James was a legal impediment to her ceremonial marriage to George. Tex. Fam. Code Ann. § 6.202(a). Therefore, the DNH's marriage to George was void. When the DNH divorced James on October 5, 1973, the impediment to the DNH's marriage to George ceased to exist or was dissolved. B~, 985 S.W.2d at 490. George's ceremonial marriage to the DNH became valid when the marriage between the DNH and James was terminated by divorce, provided that they lived together as husband and wife and represented themselves as being married. See Tex. Fam. Code Ann. § 6.202(b).
The facts support a determination that George and the DNH lived together and that they represented themselves to others as married. This conclusion is supported by a number of uncontroverted facts. The marriage license shows that George and the DNH desired to be joined in marriage. The DNH represented herself as married to George by carrying the name George. See In re Estate L~, 64 F.2d 3d 564, 574 (Tex. App. - Texarkana 2001, no writ). Additionally, the DNH and George lived together from the time that they married until approximately March 1981, a year prior to DNH's death. Id, at 574. Therefore, the DNH and Mr. B~ intended to be married and represented this intent to others through his marriage license and living with the DNH for more than ten years. Thus, the requirements of section 6.202(b) of the Texas Family Code have been met. See Tex. Fam. Code Ann. § 6.202(b). Consequently, the ceremonial marriage between Mr. B~ and the DNH would have become valid on October 5, 1973, when the DNH's previous marriage was terminated by divorce.
Finally, you inquired whether, in light of this opinion, there is a need to revise the Agency's Program Operations Manual System (POMS). GN 00305.070 deals with the removal of the impediment to a void ceremonial marriage. GN 00305.075 guides the Agency concerning the validity of marriages entered into without a ceremony. GN 00305.070 suggests that issues involving the validity of a marriage once an impediment is removed may be submitted to the Regional Chief Counsel. We believe that this continues to be sound policy and, therefore, do not suggest any changes to this POMS provision. However, the Texas portion of GN 00305.075 does not refer to Texas Family Code section 6.202(b). Instead it states that a common-law marriage must be established once the impediment is removed. Therefore, we suggest adding the following to GN 00305.075, with the changes represented in italics:
Effective 1/1/70, where the marriage relationship was not valid because there was a prior undissolved marriage, a marriage becomes valid when the prior marriage is dissolved if, since that time, the parties have lived together as husband and wife and presented themselves to others as being married.
In summary, Texas law provides that a marriage, although void due to an existing prior marriage by one of the parties, may become a valid marriage upon dissolution of the previous marriage. The DNH dissolved her prior marriage on October 5, 1973. Therefore, the evidence establishes that Georgeand the DNH had a valid marriage from October 5, 1973, until the DNH's death because they lived together and represented themselves as being married. Therefore, George is entitled to receive Social Security benefits as DNH's spouse.
Tina M. Waddell
Regional Chief Counsel
Michelle M. Montemayor
Assistant Regional Counsel
Following information we received from the Library of Congress on India’s laws, on March 9, 2012, we issued an opinion finding that the evidence submitted with a prior legal opinion request was insufficient to make a determination as to whether the marriage and divorce were valid. See Memorandum from Regional Chief Counsel, Dallas, Region VI, to Ass’t Reg. Comm. - MOS, Chicago, Texas Law – Validity of Underage Indian Marriage (NH Karamsinh, SSN ~ (March 9, 2012) (attached); Law Library of Congress, India, Hindu Marriage and Divorce Laws, No. 2012-007370 (February 2012) (attached). In this opinion, we requested additional factual information regarding the NH’s and Jalanben community, caste, marriage ceremonies, and divorce. You have now resubmitted this request for a legal opinion along with additional information in the form of a detailed statement from the NH obtained on May 22, 2012.
Religious affiliation is the prime determinant in choosing the governing law for marriage and divorce issues in India. See Joel A. Nichols, Multi-tiered Marriage: Ideas and Influences from New York and Louisiana to the International Community, 40 Vand.’l L. 135, at *166 (2007). India has enacted various systems of religious laws for Hindus, Muslims, Christians, and Parsis that are intended to apply to adherents of those faiths. Id. at *165. The current legal structure in place holds five distinct categories: Hindu, Muslim, Christian, Parsi, and a residual category of secular law. Id. at *168. Further, customary religious law is permitted to supplement (though not contradict) statutory law. Id. It is membership in a particular “religious” community by birth, or entrance into that community by conversion, that is decisive in choosing which law will apply to a person. Id. at *166. The majority of India is Hindu, and thus, Hindu law applies to all Indians who are not Muslim, Christian, Parsi, or Jewish. Id. at *169. The evidence provided indicates that the NH and Jalanben are Hindu. Thus, when we refer to India’s laws in this memorandum, we are referencing Hindu law.
The agency accepts secondary evidence in situations such as this where the marriage and divorce are pursuant to custom and there is no official documentation of the marriage or divorce. For example, the agency accepts statements from a number holder, spouse, and witnesses to establish a Chinese custom marriage, customary Ghana marriage, and tribal or Muslim marriage in the Philippines. See POMS GN 00307.419 (Chinese custom marriage), GN 00307.515 (sensitive instructions as to evidence from Ghana), GN 00307.769 (tribal and Muslim marriages in the Philippines).
In these agency forms, the NH acknowledges that “anyone who makes or causes to be made a false statement or representation of material fact in an application or for use in determining a right to payment under the Social Security Act commits a crime punishable under Federal law and/or state law,” and that he “affirm[s] that all information [he has] given in this document in true.”
As addressed in 20 C.F.R. § 404.331(a), Jalanben eligibility rests on whether she and the NH were validly married for 10 years and divorced under state law. The other requirements for eligibility as a divorced spouse are found in 42 U.S.C. § 402(b)(1)(A) - (D) and 20 C.F.R.§ 404.331(b) - (f). We assume that you are satisfied that the other grounds for entitlement are met.
Permanent home means the number holder’s true and fixed home or legal domicile. 20 C.F.R. § 404.303.
Please refer to our prior opinion dated March 9, 2012, for a detailed choice of law analysis supporting our opinion that Texas would apply India’s laws to determine the validity of the marriage and divorce. We have not repeated that detailed choice of law analysis here in this present opinion. Instead, in this present opinion, our focus is upon the application of India’s laws.
Please refer to our March 9, 2012, opinion for a detailed discussion of the relevant policies of the forum; the protection of justified expectations; the relevant policies of other interested states and the relevant interests of those states in the determination of the particular issue; the certainty, predictability, and uniformity of result; ease in the determination and application of the law to be applied; the needs of the interstate and international systems involved; and the basic policies underlying the particular field of law.
Citations to India’s laws are contained in the Law Library of Congress’s legal opinions.
We note that the agency has previously recognized as valid an arranged marriage in India where the evidence established that it met the customary Sikh requirements of India in 1948 and was valid under India’s laws, despite the fact that there was no license, certificate, or contemporary written record of the arranged marriage. See Memorandum from Regional Chief Counsel, San Francisco Region IX to Ass’t Reg. Comm. – MOS, San Francisco, Ajit Singh Dhillon (August 13, 1979) (concluding that the customary Sikh marriage was valid under Indian law, and hence would be recognized as valid in California, and granting benefits based on this marriage).