TN 3 (12-14)

PR 05825.008 Connecticut

A. PR 15-026 Spouse’s Benefit Eligibility Based on Record of Same-Sex Marriage in Ontario, Canada.

DATE: November 13, 2014

1. SYLLABUS

Connecticut will recognize a same-sex marriage that occurred in Canada if the marriage was valid under Canadian law.

2. OPINION

I. QUESTION PRESENTED

Whether A~, the claimant, and E~, the insured number holder (NH), who were married in Ontario, Canada on October XX, 2009, and are now domiciled in Middletown, Connecticut, are validly married for the purpose of determining the claimant’s entitlement to spouse’s benefits under Title II of the Social Security Act (the Act).

II. SHORT ANSWER

Yes. Because Connecticut would recognize claimant’s marriage to the NH as valid, the agency may rely on the marriage in determining the claimant’s eligibility for Title II spouse’s benefits.

III. BACKGROUND

On July XX, 2013, the claimant filed an application for spouse’s benefits based on his marriage to the NH. The couple were married on October XX, 2009, in Toronto, Canada, which is located in the province of Ontario. The NH lived in Middletown, Connecticut at the time of the marriage and continues to reside there with the claimant. The NH affirmed these allegations in his claim for retirement benefits.

IV. APPLICABLE LAW

To be entitled to spouse’s benefits under the Act, a claimant must show, among other things, that he is the insured’s spouse. See 42 U.S.C. §§ 402(c), 416(f); see also 20 C.F.R. § 404.330(a). Under the Act:

An applicant is the . . . husband . . . of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . .

42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345; POMS 0210.006. Since the insured was domiciled in Connecticut at the time the application was filed, we must determine if, under Connecticut law, the marriage was valid at the time the claimant applied for spouse’s benefits. Id.

IV. ANALYSIS

Connecticut courts would consider the claimant and NH to be validly married

In order for Connecticut to recognize a marriage performed in a foreign country, certain requirements must be satisfied. See Conn. Gen. Stat. Ann. § 46b-28. The relevant statute provides, in pertinent part, that:

All marriages in which one or both parties are citizens of this state, celebrated in a foreign country, shall be valid, provided: (1) Each party would have legal capacity to contract such marriage in this state and the marriage is celebrated in conformity with the law of that country…

Conn. Gen. Stat. Ann. § 46b-28.

In evaluating the facts of this case, we believe that the marriage would be recognized by Connecticut courts as valid. At the time of the marriage, the NH was a citizen resident of Connecticut. See Attachment 1 (Marriage Certificate). Next, on the date of the wedding – October XX, 2009 – both the claimant and the NH appear to have had the legal capacity 1 to marry in Connecticut, which has allowed same-sex couples to marry since November 2008. 2 In addition, it appears that the marriage was celebrated in conformance with the laws of Ontario, Canada.

Same-sex marriages have been valid in Ontario, Canada since June 10, 2003, when the Court of Appeals for Ontario held that the common law definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms. Halpern, et al. v. Attorney General of Canada, et al., (2003) 65 O.R. 3d 161 (Can. Ont. C.A.). 3 Furthermore, on July 20, 2005, the Civil Marriage Act legalized same-sex marriage throughout Canada by defining marriage as “the lawful union of two persons to the exclusion of all others.” Civil Marriage Act, S.C. 2005, c. 3, § 2. 4 Finally, there appears to be no Canadian residency requirement to be married in Canada. The Canadian Civil Marriage Act specifically recognizes civil marriages of non-resident persons:

A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have capacity to enter into it under the law of their respective state of domicile.

Civil Marriage Act § 5(1).

In sum, same-sex marriage was legal both in Ontario and at the federal level in Canada when the claimant and the NH married Ontario on October XX, 2009, 2011. Further, Canadian law did not require them to be Canadian residents to enter into a valid same-sex Canadian marriage. We therefore conclude that the same-sex marriage was a valid marriage under Canadian law.

V. CONCLUSION

Connecticut will recognize a same-sex marriage that occurred in Canada