TN 6 (05-15)
PR 05825.024 Massachusetts
A. PR 15-107 Spouse’s Benefit Eligibility in Massachusetts Based on Record of Same-Sex Marriage in Ontario, Canada.
DATE: April 7, 2015
The Massachusetts courts recognize the claimant’s marriage performed in Ontario, Canada as valid. Therefore, the marriage is valid under the Act and for determining the claimant’s entitlement to spousal benefits under Title II of the Act.
I. QUESTION PRESENTED
Whether L~,the claimant, and J~, the insured number holder (NH), who were married in Ontario, Canada in May 2005, and are now domiciled in Massachusetts, 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 Massachusetts would recognize the 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.
In December 2014, the claimant filed an application for spouse’s benefits based on her marriage to the NH. The couple married in May 2005, in Kingston, Canada, which is located in the province of Ontario. The NH currently lives in Holyoke, Massachusetts. The NH affirmed these allegations in her claim for auxiliary benefits.
IV. APPLICABLE LAW
To be entitled to spouse’s benefits under the Act, a claimant must show, among other things, that she is the insured’s spouse. See 42 U.S.C. §§ 402(b), 416(b); see also 20 C.F.R. § 404.330(a). Under the Act:
An applicant is the . . . wife . . . 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, Program Operations Manual System (POMS) GN 00210.006(B) (stating SSA opinions regarding validity of foreign same-sex marriages look to laws of the state of the NH’s domicile and must address whether marriage would be recognized as valid by the courts of the state of the NH’s domicile). Since the NH was domiciled in Massachusetts at the time the application was filed , we must determine if, under Massachusetts law, the marriage was valid at the time the claimant applied for spouse’s benefits. Id.
Massachusetts courts would consider the claimant and the NH to be validly married
In order for Massachusetts to recognize a marriage performed in a foreign country, certain requirements must be satisfied. The relevant statute provides that:
If any person residing and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage under the laws of this commonwealth and goes into another jurisdiction and there contracts a marriage prohibited and declared void by the laws of this commonwealth, such marriage shall be null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth.
Mass. Gen. Laws Ann. ch. 207 § 10. Although not an issue here, this section might be read to mean that a same-sex marriage contracted in a foreign jurisdiction by a Massachusetts resident seeking to avoid a prohibition that existed in Massachusetts, would not be recognized as valid. A recent decision from the Supreme Judicial Court of Massachusetts, however, strongly indicates that such a union would be recognized as valid, in part, because “nonrecognition allows parties to avoid their obligations or leads to inconsistent legal obligations.” See Elia–Warnken v. Elia, 463 Mass. 29, 34 (2012), quoting Singer, Same-Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 29, 36, 50 (2005) (“the ‘needs of the interstate and international systems are better served by having a single clear answer to the validity of marriage,’ because nonrecognition allows parties to avoid their obligations or leads to inconsistent legal obligations”).
Additionally, the Court acknowledged “the general rule that the validity of a marriage is governed by the law of the State where the marriage is contracted.” Elia-Warnken, 463 Mass. at 32 (quoting Cote-Whitacre v. Department of Pub. Health, 446 Mass. 350, 369 (2006) (Spina, J., concurring)). See also Sutton v. Warren, 51 Mass. 451 (1845) (recognizing an English marriage and stating, “A marriage, valid where it is contracted, is valid in this State, if not incestuous by the law of nature, or not made void by Rev. Sts. c. 75, § 6, although it would be void by the law of this State, if contracted here”). With respect to out-of-state marriages, the Court explained, “As such, we ordinarily extend recognition to out-of-State marriages under principles of comity, even if such marriages would be prohibited here, unless the marriage violates Massachusetts public policy, including polygamy, consanguinity and affinity. G.L. c. 207, §§ 1, 2, 4.” Elia-Warnken, 463 Mass. at 32 (emphasis supplied) (citing Commonwealth v. Lane, 113 Mass. 458, 463 (1873).
After evaluating the facts of this case, we believe that the marriage would be recognized by Massachusetts courts as valid. At the time of the marriage, the NH was a citizen resident of Massachusetts and has maintained that residency. Next, on the date of the wedding ceremony—May 2005—both the claimant and the NH appear to have had the legal capacity to marry in Massachusetts, which has allowed same-sex couples to marry since May 2004. Additionally, 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.). Additionally, although there appears to have been no Canadian residency requirement to be married in Ontario in May 2005 , we note that the claimant identified herself as a Canadian resident in the marriage certificate.
In sum, same-sex marriage was legal in both Massachusetts and Ontario when the claimant and the NH married in May 2005. Further, even though Ontario did not require Canadian residency to enter into a valid, same-sex marriage, it appears that the claimant was a Canadian resident. We therefore conclude that the couple’s marriage would be viewed as valid by a Massachusetts court.
Massachusetts will recognize a same-sex marriage solemnized in a foreign jurisdiction if neither participant was a Massachusetts resident who would have been prohibited from marrying under Massachusetts law. Additionally, Massachusetts courts look to the laws where the marriage is contracted to determine whether a marriage is valid. Thus, because the marriage between the claimant and the NH would have not have been prohibited under Massachusetts law and was celebrated in conformance with the laws of Ontario, we believe a Massachusetts court would recognize it as valid. As such, the marriage is valid under the Act and for determining the claimant’s entitlement to spousal benefits under Title II of the Act.
Office of the Regional Chief Counsel, Region I
Assistant Regional Counsel
In your request for advice, you indicated that the NH “currently maintains her residence in Holyoke, MA.” Additionally, the marriage certificate reflects that the NH resided in Massachusetts on the date of the marriage ceremony. See Attachment 1. Based on these representations, we assume, for the purposes of this opinion, that the NH lived in Massachusetts at the time the application was filed.
Legal capacity also involves additional considerations—none of which appear to be at issue in this case—including whether there is an existing marriage, age prohibition, or close blood relationship. See Mass. Gen. Laws Ann. ch. 207 §§ 1, 2, 4, 6, 7.
Same-sex marriages have been valid in Massachusetts since May 17, 2004, as a result of the Supreme Judicial Court’s decision in Goodridge v. Dep’t of Public Health, 798 N.E. 2d 941 (Mass. 2003).
Available at http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm .
R.S.O. 1990, c. M.3, s. 5(1) (historical version for the period March 9, 2005 to June 21, 2006), available at http://www.canlii.org/en/on/laws/stat/rso-1990-c-m3/1112/rso-1990-c-m3.html#history (last visited March 2, 2015).