TN 5 (04-15)

PR 05830.342 Spain

A. PR 15-084 Performed in Spain Under District of Columbia Law—REPLY 

DATE: February 10, 2015

1. Syllabus

The District of Columbia 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, the District of Columbia would also recognize it as valid. As such, the marriage is valid under the Act and for determining Claimant’s entitlement to spousal benefits. 

2. OPINION

QUESTION PRESENTED

Whether A~, the claimant, and the I~, the number holder (NH), who were married in Sitges, Barcelona, Spain in May 2010, are considered married for purposes of determining the claimant’s entitlement to benefits under Title II of the Social Security Act (Act).     

SHORT ANSWER

Yes, if the marriage celebrated in May 2010 and recorded in the civil registry on the same date is valid under Spanish law, it is recognized under the law of the District of Columbia. Accordingly, the claimant would be considered the NH’s spouse for purposes of determining entitlement to benefits.

BACKGROUND

The claimant and the NH entered into a same-sex marriage in May 2010, in Sitges, Barcelona, Spain. The marriage was recorded in the civil registry on the same date. In December 2013, the claimant filed for Social Security benefits as the NH’s spouse.  The NH is domiciled in Spain. You requested a legal opinion regarding whether the claimant and the NH are considered to have been married for purposes of determining the claimant’s entitlement to benefits as the NH’s spouse under Title II of the Act.

LEGAL STANDARDS

Federal Law

A claimant is entitled to spousal benefits under Title II of the Act if, among other things, he or she is the spouse of an insured individual who is entitled to old-age or disability benefits. 1 See 42 U.S.C. §§ 402(c), 416(a)(1); 20 C.F.R. § 404.330. The claimant bears the burden of proving that he or she is in a valid marital relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 20 C.F.R. §§ 404.345, 404.704, 404.723, 404.725. In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured had a permanent home at the time the claimant applied for benefits. See 42 U.S.C.§ 416(h)(1)(A)(i). If the insured was not domiciled in any state, the agency applies the law of the District of Columbia. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00210.006(B)(2). 

Here, because the NH resided in Spain at the time the claimant applied for benefits, we apply District of Columbia law to determine whether they were validly married.  Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946).  The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). The District of Columbia began formally recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”).  Accordingly, from July 7, 2009, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District of Columbia. We therefore consider whether the claimant’s and the NH’s marriage is valid under Spanish law.

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.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), an 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. 

DISCUSSION

It is clear that foreign same-sex marriages have been legal in the District of Columbia since July 7, 2009. As a result, we conclude that at the time of the claimant’s application in December 2013, the District of Columbia would have recognized the marriage between the claimant and NH as valid, as long as the marriage is valid under Spanish law. 

The translation of the documents provided to our office states that the marriage of the claimant and the NH took place in May 2010.  The translation provided also states that the marriage was recorded in the civil registry in May 2010. We have no indication that the marriage did not meet the Spanish legal criteria for a valid marriage.  Under Spanish law, 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. Same-sex marriage was legal in Spain at the time of this 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, it is appropriate to conclude that the marriage is valid and has full legal effect under Spanish law. 

CONCLUSION

The District of Columbia will recognize a same-sex marriage that occurred in Spain if the marriage was valid under Spanish law. Here, we have evidence that a marriage occurred, but it is unclear if we have evidence of when the marriage was recorded in the civil registry. If the civil registry recordation evidence is shown, the agency could find the Claimant and NH had a valid marriage under Spanish law at the time of the NH’s death. If the marriage is valid under Spanish law, the court of the District of Columbia would also recognize it as valid. As such, the marriage could be recognized for purposes of determining Claimant’s entitlement to benefits as the NH’s surviving spouse (widower).

B. PR 15-044 Validity of a Same-Sex Marriage Performed in Spain Under District of Columbia Law—REPLY

DATE: December 8, 2014

1. Syllabus

The District of Columbia will recognize a same-sex marriage that occurred in Spain if the marriage was valid under Spanish law.

2. OPINION

QUESTION PRESENTED

Whether M~, the claimant, and the J~, the deceased number holder (NH), who were married in Barcelona, Spain on January 26, 2006, are considered married for purposes of determining the claimant’s entitlement to benefits under Title II of the Social Security Act (Act).

SHORT ANSWER

Yes, assuming the documents provided to the agency evidence that the marriage was recorded in the civil registry, the claimant qualifies as the NH’s surviving spouse (widower). Accordingly, if the claimant also meets the other criteria for entitlement, the agency should find that he is entitled to Title II benefits on the NH’s record.

BACKGROUND

The claimant and the NH entered into a same-sex marriage on January 26, 2006, in Barcelona, Spain. The NH died on December 16, 2012 in Barcelona, Spain. The claimant continues to reside in Spain. On April 11, 2013, the claimant filed for Social Security benefits and the lump sum payment as the NH’s widower. You requested a legal opinion regarding whether the claimant and the NH are considered to have been married for purposes of determining the claimant’s entitlement to benefits under Title II of the Act.

LEGAL STANDARDS

Federal Law

Generally, an individual is entitled to widow’s or widower’s benefits if he or she (1) is the insured’s widow or widower and the marital relationship lasted at least nine months before the insured died; (2) files an application; (3) is at least 60 years old; (4) is not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount; and (5) is not currently married. Sections 202(e), 202(f) of the Act; 20 C.F.R. § 404.335. Similarly, upon the death of a person who died as a fully or currently insured individual under the Act, a lump-sum death payment may be paid to the widow or widower of the insured who was living in the same household at the time of death. Section 202(i) of the Act; 20 C.F.R. § 404.391.

Here, at the time of the NH’s death, the NH was domiciled in Spain. Therefore, we apply the laws the District of Columbia courts would apply to determine whether a valid marriage existed at the time of the NH’s death. See section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345, POMS GN 00210.066B.2.a. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). As pertinent here, the District of Columbia began formally recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July 7, 2009. See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). Accordingly, it is clear that from July 7, 2009, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District of Columbia. We therefore consider whether the claimant’s and the NH’s marriage is valid under Spanish law.

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. 4 5 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), an 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.

DISCUSSION

It is clear that foreign same-sex marriages had been legal in the District of Columbia since July 7, 2009. Thus, we can conclude that at the time of the NH’s death on December 16, 2012, the District of Columbia would have recognized the marriage between the claimant and NH as valid, as long as the marriage is valid under Spanish law.

The translation of the documents provided to our office state that the marriage of the claimant and the NH took place on January 26, 2000. However, the translation provided does not state when the marriage was recorded in the civil registry. 6 We have no indication that the marriage did not meet the Spanish legal criteria for a valid marriage. However, under Spanish law, 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. Therefore, the agency must confirm that there is evidence that an officer of the civil registry recorded the marriage in the civil register in order for the agency to find that the marriage is valid and has full legal effect under Spanish law.

CONCLUSION

The District of Columbia will recognize a same-sex marriage that occurred in Spain if the marriage was valid under Spanish law. Here, we have evidence that a marriage occurred, but it is unclear if we have evidence of when the marriage was recorded in the civil registry. If the civil registry recordation evidence is shown, the agency could find the Claimant and NH had a valid marriage under Spanish law at the time of the NH’s death. If the marriage is valid under Spanish law, the court of the District of Columbia would also recognize it as valid. As such, the marriage could be recognized for purposes of determining Claimant’s entitlement to benefits as the NH’s surviving spouse (widower).


Footnotes:

[1]

To be eligible for spousal benefits, the claimant must also show that he or she: (1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage; (2) has filed an application for spousal benefits; (3) has attained aged 62 or has in his or her care a child entitled to child’s benefits; and (4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount. See 42 U.S.C. § 402(b)(c); 20 C.F.R. § 404.330.  As we have not been asked to provide an opinion on whether Claimant meets these additional requirements, our opinion will focus on whether the claimant is the NH’s spouse.

[2]

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

[3]

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, the NH was not a Spanish citizen, but a U.S. citizen. However, because Claimant and NH were married in 2010, 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.

[4]

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

[5]

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, the NH was not a Spanish citizen, but a U.S. citizen. However, because Claimant and NH were married in 2006, 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.

[6]

It is unclear if the documents provided contain this information and it was not translated, or if this information was not contained in the documents provided to the agency.


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http://policy.ssa.gov/poms.nsf/lnx/1505830342
PR 05830.342 - Spain - 06/05/2015
Batch run: 06/05/2015
Rev:06/05/2015