TN 8 (02-18)

PR 05820.342 Spain

A. PR 14-163 Validity of Same-Sex Marriage Claimant: Y~ Number Holder: W~

Date: September 3, 2014

1. Syllabus

California will recognize a same-sex marriage that occurred in Spain if the marriage was valid under Spanish law.

2. Opinion


You asked whether Claimant and Number Holder (NH), who were married in G~, Spain on August XX, 2008, and are now domiciled in California, are validly married for the purpose of determining Claimant’s entitlement to spouse’s benefits.


Yes. Because California would recognize Claimant’s marriage to NH as valid, the agency may rely on the marriage for determining entitlement to benefits under the Social Security Act (Act).


Y~ (Claimant) and W~ (NH), both male, entered into a ceremonial civil marriage in G~, Spain on August XX, 2008. As proof of marriage, Claimant provided a copy of the marriage certificate from the Civil Registry of G~, dated September XX, 2008. The marriage certificate lists the home of Claimant and NH as G~, Spain.

On October XX, 2013, Claimant applied for auxiliary spouse’s benefits on NH’s account. The S~ F~ – Mission field office indicated that Claimant is now a permanent resident alien residing in S~ F~, California with the NH.


Federal Law

A claimant may be entitled to benefits as the spouse of an insured person, if certain criteria are met. See Act §§ 202(b), (c); 20 C.F.R. § 404.330.

To determine eligibility, the Social Security Act looks to state law to determine whether a spousal relationship existed. Act § 216(h)(1)(A)(i); see also 20 C.F.R. § 404.345; Program Operations Manual System (POMS) RS 00202.001 (“A legal spouse must be validly married to the NH under the laws of the State of the NH’s domicile at the time the claimant files an application or during the life of the application; or [h]ave the same rights as a husband or wife to share in the distribution of the NH’s intestate personal property under the laws of the State of the NH’s domicile at the time of filing.”).

More specifically, to confirm the validity of a same-sex marriage, the agency must first determine whether the couple entered into a ceremonial marriage after the date the issuing state permitted same-sex marriage.

POMS GN 00210.002; see also POMS GN 00210.003 (listing all states that permit same-sex marriage). Where the couple entered into a same-sex marriage in a foreign jurisdiction, the agency looks to the law of the state of the NH’s domicile at the time of application to determine if the courts in that state would recognize the foreign same-sex marriage as valid. POMS GN 00210.006. Thus our inquiry is whether the Spanish marriage between Claimant and NH is valid under California law.

California Law

California statutory law does not specifically address the validity of a same-sex marriage contracted in Spain. 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 (2014); 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.”); Rosales v. Battle, 113 Cal. App. 4th 1178, 1183, 7 Cal. Rptr. 3d 13 (Cal. App. Ct. 2003) (applying the marriage laws of Mexico to determine the validity of a foreign marriage pursuant to California Family Code § 308(a)).

Same-sex marriage became legal in California on June 28, 2013. Perry v. Brown, 725 F.3d 968, 970 (9th Cir. June 28, 2013). In November 2008, California voters passed Proposition 8, which amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” [1] [2] [3] Código Civil art. 44 (B.O.E. July 25, 1889, as amended). Same-sex marriage has the same legal requirements and effect as heterosexual marriage. Id. Applicants for a marriage license must provide proof that they have lived in Spain for at least two years (Reglamento de la Ley de Registro Civil (RLRC) art. 240.5), a current valid passport if the applicant is not a Spanish national (RLRC art. 258), original birth certificate (RLRC art. 241), proof of legal capacity to enter into marriage (RLRC art. 240.3), and any applicable marriage, divorce, annulment, or death certificates (Ley de 8 de junio de 1957 sobre Registro Civil art. 76 (B.O.E. June 10, 1957, 7537)).

The marriage has full legal effect when it is recorded in the civil registry; at that time, the officer of the civil registry issues a marriage certificate stating the date, time, and place of the marriage. Código Civil arts. 49, 51.


Because California law recognizes all marriages that are valid in the jurisdiction in which they are contracted, California will recognize the marriage of Claimant and NH if it is valid under Spanish law. The marriage certificate presented by Claimant shows that his marriage to NH took place on August XX, 2008 and the marriage was recorded in the civil registry on September XX, 2008. There is no evidence suggesting that Claimant’s marriage to NH failed to meet the requirements for a valid marriage under Spanish law. Same-sex marriage was legal in Spain at the time of their marriage, and the officer of the civil registry recorded the marriage in the civil register and issued a marriage certificate to Claimant and NH. Therefore, the marriage is valid and has full legal effect under Spanish law.


California will recognize a same-sex marriage that occurred in Spain if the marriage was valid under Spanish law. Because the marriage between Claimant and NH was valid under Spanish law, California would also recognize it as valid. As such, the marriage is valid under the Act and for determining Claimant’s entitlement to spousal benefits.



Following the passage of Proposition 8, California amended Family Code section 308 to include subsection (b) that provided that a same-sex marriage contracted outside the state, which was valid under the laws of the jurisdiction where it was contracted, would be valid in California if it was contracted prior to November 5, 2008, and subsection (c) that if the out-of-state marriage was contracted after that date, the couple could not use the designation marriage. See Cal. Fam. Code. § 308(b), (c) (2010); 2009 Cal. Legis. Serv. Ch. 625 (S. B. 54) (West). On July 7, 2014, the California legislature repealed California Family Code Section 308, and reinstated it without subsections (b) and (c) that had limited same-sex marriages to those contracted before November 5, 2008. See 2014 Cal. Legis. Serv. Ch. 82 (S.B. 1306) (West) (providing, “The bill would also delete the limitation on the validity of marriages contracted outside this state between 2 persons of the same sex.”).

Cal. Const. Art. I, § 7.5; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927 (N.D. Cal. 2010). On August 4, 2010, the District Court for the Northern District of California held that Proposition 8 was unconstitutional under both the Due Process and Equal Protection Clauses of the United States Constitution. Id. at 1004. However, the Ninth Circuit granted a stay on August 16, 2010, pending resolution of an appeal. See Perry v. Schwarzenegger, 2010 WL 3212786 (9th Cir. Aug. 16, 2010) (order). Upon review, the Ninth Circuit held that the people of California violated the Equal Protection Clause by “using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so,” and that Proposition 8 was unconstitutional on this basis. Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012). On June 26, 2013, the United States Supreme Court held that the proponents of Proposition 8 did not have standing to appeal, upholding the district court’s order declaring the proposition unconstitutional. See Hollingsworth v. Perry, 133 S.Ct. 2652 (2013). On June 28, 2013, the Ninth Circuit dissolved its stay in Perry, and same-sex marriages in California once again became legal. Perry v. Brown, 725 F.3d 968 (9th Cir. 2013)

California state officials construed the lifting of the stay as indication that same-sex marriage in California was legal and permitted and that same-sex couples who were legally married in another jurisdiction would be considered already legally married under California State law. See Ruling by the U.S. Supreme Court Regarding Same-Sex Marriages, Cal. Dept. of Pub. Health (June 28, 2013) (State Registrar’s Message to County Clerks), available at:

Therefore, California, currently acknowledges all marriages validly entered into in other states, including same-sex marriages. Cal. Fam. Code § 308 (2014); see also POMS GN 00210.100.

Spanish Law

On July 2, 2005, the Civil Code of Spain was amended to include the civil marriage entered into by individuals of the same sex as a legal marriage.


We obtained an opinion regarding the law Spain as it pertains to same-sex marriage from a Senior Foreign Law Specialist in the Law Library of Congress. The opinion’s discussion of Spanish law is consistent with the analysis in this memorandum.


Prior to October 2005, Spanish citizens could only legally marry non-Spanish nationals of the same sex if the non-Spanish national was from a country where same-sex marriage was legal. See Resolución 26 de octubre 2005 de la Dirección General de Registros y Notariado. On October 26, 2005, the Spanish General Directorate of Registries and Notaries issued a resolution providing that a Spanish citizen may marry a non-Spanish national of the same sex regardless of whether that person’s country of origin permits same-sex marriage. Id. Here, Claimant was not a Spanish citizen and lists his nationality as J~. However, because Claimant and NH were married in 2008, this rule is not implicated, and it is not necessary to address whether the change in requirements applied retroactively. If the issue of the validity of a same-sex marriage between a Spanish citizen and a non-Spanish national contracted in Spain between July 2, 2005 and October 26, 2005 arises in the future, please refer the issue to OGC for an opinion.

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PR 05820.342 - Spain - 02/13/2018
Batch run: 02/15/2018