Whether the Panamanian common-law marriage of Rene and Gladys is valid for the purpose
of determining whether Gladys is entitled to divorced spouse benefits on the record
Yes. The State of California would recognize the common-law marriage of Gladys and
Rene because common-law marriage is valid under Panamanian law. Because the marriage
lasted more than 10 years, it meets the duration requirement for divorced spouse benefits.
On September 9, 2011, Gladys (Claimant) applied for benefits as the divorced spouse
of the number holder (NH), Rene , under Title II of the Social Security Act (Act).
On her application, Claimant indicated that she began living with the NH as husband
and wife in Santa Cruz, Panama in 1971. She stated that she and the NH had an understanding
that they were living together in common-law marriage. She also stated that they
did not have a ceremonial marriage at the time because they could not afford one,
but that they believed that they were married because common-law marriage was legal
in Panama. On February Beatriz , the first child of the NH and Claimant, was born
On June 7, 1973, Claimant and the NH applied for a marriage license and were civilly
married in the United States District Court for the District of the Canal Zone in
Panama. Following the civil marriage, Claimant and the NH moved to Garden Grove,
California. Claimant indicated that Frank, the second child of the NH and Claimant,
was born on February in California.
The Superior Court of California, Orange County issued a final judgment of the dissolution
of the marriage of Claimant and the NH on May 18, 1981.
Beatriz submitted a “Statement Regarding Marriage” in support of her mother’s application
for divorced spouse benefits. Rene stated that she lived with both Claimant and the
NH during her childhood and understood them to be husband and wife. She indicated
that Claimant and the NH lived together from 1971 to 1973 in Santa Cruz, Panama, and
from 1973 to 1981 in Garden Grove, California.
The Act provides that a divorced wife of an insured individual is eligible for divorced
spouse insurance benefits if she was validly married to the insured for at least 10 years,
attains age 62, is not currently married, and files an application. Social Security
Act § 202(b)(1), 42 U.S.C. § 402(b)(1); see 20 C.F.R. § 404.331 (requirements for divorced spouse benefits); Program Operations
Manual System (POMS) RS 00202.005 (relationship and entitlement requirements for divorced spouse benefits); see also Social Security Handbook §§ 307, 311.
In determining the validity of a marriage, the agency applies the law of the state
where the insured individual was domiciled at the time the claimant filed the application
for benefits. Social Security Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; see also 20 C.F.R. § 404.303 (defining “permanent home” as “legal domicile”). Likewise, the
agency applies the law of the state where the insured individual was domiciled to
determine whether a valid common-law marriage was contracted outside the United States. See POMS 00307.257 (development of common-law marriage outside the United States). Here,
Claimant and the NH were married in Panama. NH was domiciled in California at the
time of Claimant’s application. Therefore, California law determines whether Claimant
was validly married to the NH in Panama.
No California statute specifically addresses the validity of a marriage contracted
in Panama; however, the California Family Code provides that “[a] marriage contracted
outside this state that would be valid by the laws of the jurisdiction in which the
marriage was contracted is valid in this state.” Cal. Fam. Code § 308; see People v. Badgett, 895 P.2d 877, 897 (Cal. 1995) (discussing and applying Family Code § 308 to determine
validity of purported common law marriage in Texas); see also 52 Am. Jur. 2d. Marriage § 65 (2012) (“[t]he general rule is that the validity of a marriage is determined
by the law of the place where it is contracted, or celebrated. Thus, a marriage which
is valid under the law of the state or country in which it is contracted will generally
be recognized as valid.”). Accordingly, a marriage that is valid under Panamanian
law would be recognized by the State of California.
The Panamanian Constitution and Family Code of Panama recognize de facto, or “common-law,”
marriage. See República de Panamá Constitución de 1972 con Reformas de 1978, 1983, 1993, 1994 y
2004, Capitulo 2, Artículo 58, available at http://pdba.georgetown.edu/Constitutions/Panama/vigente.pdf (last visited Feb. 14, 2012); Panama has recognized common-law marriage since 1946. See República de Panamá Constitución de 1946, Capítulo 2, Artículo 56, available at http://bdigital.binal.ac.pa/bdp/descarga.php?f=const/Constitucion1946.pdf
Panama Código de la Familia, Libro Primero, Titulo I, Capítulo III, Artículo 53-56
(Del Matrimonio de Hecho), available at http://www.legalinfo-panama.com/legislacion/familia/codfam_Ia.pdf (last visited Feb. 14, 2012). The text of the Panamanian law was translated by Assistant
Regional Counsel Susan L. Smith. There is no official English translation of the Panamanian
Constitution or Family Code.
A valid de facto marriage requires that an unmarried adult man and women, who have
the legal capacity to marry, live together as man and wife. See id. The cohabitation must be stable, consistent, and long-lasting. See id. After five consecutive years of cohabitation, the couple may request a civil registration
of the marriage. See id. However, civil registration is not required to enforce legal rights as a spouse;
a spouse may enforce her legal rights by presenting evidence of the cohabitation and
requesting a judicial declaration of marriage. See República de Panamá Constitución de 1972 con Reformas de 1978, 1983, 1993, 1994 y
2004, Capitulo 2, Artículo 58; Código de la Familia, Libro Cuarto, Titulo II, Capítulo III, Artículo 796-804
available at http://www.legalinfo-panama.com/legislacion/familia/codfam_IV.pdf.
A de facto marriage bestows the same legal rights and obligations on the parties as
a civil marriage. See Panama Código de la Familia, Libro Primero, Titulo I, Capítulo III, Artículo 53.
For example, upon dissolution of a de facto marriage, each party is legally entitled
to half of the property acquired during the marriage, even if the marriage was never
civilly registered. See id. at Artículo 59. Because de facto, or common-law, marriage is valid in Panama, the
State of California would likewise recognize a common-law marriage that was established
in accordance with Panamanian law. See People v. Badgett, 895 P.2d at 897 (considering whether common-law marriage had been established under
Texas law for purpose of California’s marital communication privilege); Cal. Jur.
3d. Common-law Marriages § 62 (2012) (“California does not recognize the validity of common-law marriages.
However, common-law marriages, if valid according to the law of the jurisdiction in
which they were initiated, will be recognized as valid in this state.”).
Here, Claimant and the NH applied for a marriage license and were ceremonially married
in the United States District Court in Panama on June 7, 1973. Claimant and the NH
divorced on May 18, 1981, approximately eight years after their marriage by the United
States District Court. In order to be entitled to receive divorced spouse benefits,
Claimant must show that she was married to the NH for 10 years; therefore, Claimant
must show that her marriage to the NH began prior to May 18, 1971. Claimant and the
NH had a ceremonial marriage in 1973, two years before they would have been eligible
to register the common-law marriage under Panama law. We found no indication in the
Panamanian Family Code that a subsequent ceremonial marriage would invalidate an earlier
Claimant began living with the NH as husband and wife in Panama on January 1, 1971. From
the facts presented, it appears that Claimant and the NH possessed the legal capacity
to marry. The evidence and statements provided to the agency indicate that Claimant
and the NH began living together as husband and wife in 1971 The evidence submitted
includes statements from Claimant and her daughter, but not from the NH. The preferred
evidence of common-law marriage is a statement of both spouses. 20 C.F.R. § 404.726(b);
POMS GN 00305.065. If the NH is unavailable or uncooperative, the agency should try
to obtain other evidence as described in POMS GN 00305.065.
and that their cohabitation did not cease at any time before the 1981 divorce. Furthermore,
a subsequent ceremonial marriage or intent to have a future ceremony generally will
not negate a valid, prior common-law marriage. See, e.g., Carty v. Thaler, 583 F.3d 244, 260 (5th Cir. 2009) (“the intention to have a formal proceeding does
not automatically disprove the existence of a common-law marriage”); Hinojos v. Railroad Retirement Board, 323 F.2d 227, 231 (5th Cir. 1963) (holding that ceremonial marriage after common-law
marriage was “surplusage, as far as the law is concerned”); Gammelgaard v. Gammelgaard, 77 N.W. 2d 479, 483 (Iowa 1956) (stating that ceremonial marriage would have been
formal recognition of status assumed through common-law marriage); McIlveen v. McIlveen, 332 S.W. 2d 113, 117 (Tex. Civ. App. 1960) (holding no inconsistency in testimony
regarding desire to marry in Catholic ceremony and existence of common-law marriage);
52 Am. Jur. 2d Marriage § 45, Effect of subsequent ceremonial marriage, or intent to have such marriage (2012). Although these authorities consider how common-law marriage is viewed when
established within U.S. states, they are nonetheless relevant to show the legal principles
that would be used to evaluate the Panamanian common-law marriage at issue here.
In the absence of any evidence to the contrary, it appears that Claimant and the NH
entered into a valid marriage under Panamanian law. Therefore, based on the beginning
date of marriage that Claimant has alleged, Claimant and the NH were married for 10
years, from the time of their initial cohabitation in Panama in on January 1, 1971
to their divorce on May 18, 1981.
The common-law marriage of Claimant and the NH appears to be valid under Panamanian
law. Therefore, it would be recognized in the State of California and entitle the
Claimant to divorced spouse benefits based on the years she alleged common-law marriage
to the NH.