TN 4 (11-12)
PR 06210.048 Texas
A. PR 12-136 Texas State Law – Texas Recognition of Marriage Contracted in India with Later Divorce (NH K~, SSN ~) – REPLY
DATE: September 21, 2012
We look to Texas law, where the number holder was domiciled at the time of the claimant’s application for divorced spouse’s benefits, to determine the validity of their marriage and divorce for the purpose of determining the claimant’s eligibility for divorced spouse’s benefits. It is likely that a Texas court would apply India’s laws to the marriage and divorce. The 1951 marriage and 1969 divorce are both valid under Hindu marriage and divorce laws and we believe a Texas court would, therefore, find both the 1951 marriage and 1969 divorce valid.
Effective 1/1/70, where the marriage relationship was not valid because there was a prior undissolved marriage, a marriage becomes valid when the prior marriage is dissolved if, since that time, the parties have lived together as husband and wife and presented themselves to others as being married.
You have asked whether Karamsinh (the NH), who resides in Texas, and Jalanben , who resides in Illinois, obtained a valid marriage and divorce in India to determine Jalanben eligibility for divorced spouse’s benefits.
We believe that the State of Texas would apply the laws of India in determining the validity of the NH’s and Jalanben marriage and divorce. Based on information obtained in a new report from the Law Library of Congress, we believe that the NH and Jalanben had a valid Hindu marriage beginning on May 27, 1951, which ended in divorce in December 1969.
In August 2009, the NH, who resides in Texas, filed an application for retirement insurance benefits under Title II of the Social Security Act (Act) and reported that he was presently married to Urmillawat Karamsinh, whom he had married on June 25, 1973. The NH was born August . He reported that he had no previous marriages that lasted 10 years or more or ended in death; however, in the remarks portion of the application, he stated that he “had a pre-arranged marriage as a child in India,” and that “the marriage was resolved in 1969.” The Social Security Administration (agency) granted the NH’s application for retirement benefits.
In February 2011, Jalanben, who resides in Illinois, filed an application for divorced spouse’s benefits on the NH’s account. Jalanben was born February. In her application, Jalanben stated she was not presently married, but that she had a prior marriage to the NH on May 27, 1951, and that the marriage ended in divorce on December 12, 1969, in India.
In this case, there is no preferred proof of marriage or divorce. Thus, the agency has appropriately developed secondary evidence as to both the marriage and divorce. See Program Operations Manual System (POMS) POMS GN 00305.025 (secondary proof of ceremonial marriage), GN 00305.140 (proof of marriage termination – general), GN 00305.170 (determining validity of divorce). The agency contacted the NH to obtain assistance in establishing Jalanben entitlement to divorced spouse’s benefits, and the NH provided two statements (Form SSA-795) dated August 15, 2011, and May 29, 2012, detailing his marriage to and divorce from Jalanben in India. In these forms, the NH stated that he and Jalanben married on May 27, 1951, during an arranged Hindu marriage ceremony in India when they were children. According to the dates of birth and the date of the marriage ceremony (May 27, 1951), the NH was 7 years old and Jalanben was 6 years old at the time of this first ceremony. The NH explained that in accordance with their village customs, their fathers arranged the marriage and that all guardians freely consented to the arranged marriage. The NH explained that he and Jalanben were not blood relatives, and that they were not married to others at the time of their marriage. The NH stated that the marriage and ceremonies were in accordance with Shastric Hindu requirements and with customs of the NH’s and Jalanben caste ( Rabari) and community customs.
Regarding the first ceremony, in his August 2011 statement, the NH referred to this 1951 ceremony as “the original promise ceremony.” In his May 2012 statement, the NH explained that the 1951 ceremony was an elaborate solemnized marriage ceremony conducted by a Hindu priest in accordance with Shastric Hindu requirements, and which involved the seven vows of the saptapadi. He offered details of this ceremony. The NH explained that he and Jalanben were considered married, as opposed to engaged, following this 1951 ceremony.
Regarding the second ceremony, the NH stated that he and Jalanben underwent a second ceremony in India in 1958 or 1959, after which time they began living together as husband and wife with the NH’s family in India. The NH explained that the second ceremony is performed after the girl is over 13 years of age and as a celebration of her leaving her home to live with the boy’s family. The NH stated that the second ceremony was also a required solemnized ceremony that a Hindu priest conducted in accordance with Shastric Hindu requirements. He offered details of this second ceremony. The NH and Jalanben had a son in 1964.
In his August 2011 statement, the NH stated that in 1969 when he wanted to leave India and move to the United States, he and Jalanben made “a declaration of divorce” to their community leaders. The NH stated that there was no government record of the divorce, no deed of release, or any paperwork documenting the divorce, only “the declaration [of divorce] of the community.” In his May 2012 statement, he offered more details of the divorce and of the divorce customs in his tribe. The NH stated that he and Jalanben both agreed to the divorce because “it was not working at all.” In this statement, the NH reported that at the time of their divorce on “approximately” December 12, 1969, he had already begun to live in the United States and that Jalanben had continued to live with his family in India. The NH stated that his family rejected him following the divorce and said he was “dead” to them, but that his family told Jalanben that she was their daughter and should continue to live in their household. The NH stated that after the divorce in 1969 and his move to the United States, Jalanben continued to live with their son and the NH’s family in India for many years. The NH stated that Jalanben “always lived at the family home – my family home. Now she is living with our son. She lived in the Karamsinh family home more than 30 years and it is always considered as her own home.”
In his August 2011 statement, the NH stated that years later when his son wanted to move to the United States, the NH had to travel back to India and “verify that there was no legal document” of the marriage or divorce. We assume the NH needed the affidavits to establish his legal relationship with his son in order to allow his son to come to the United States. At that time, the NH stated that he asked family friends who were present at the marriage and divorce to prepare affidavits attesting to these events. These affidavits, described below, were submitted to the agency as evidence of the marriage and divorce between the NH and Jalanben.
On December 1, 1990, two of the NH’s relatives provided a signed “Affidavit of Marriage of Karamsinh and Jalanben ,” containing the signature and seal of an Executive Magistrate in Sidhpur, India, to provide proof of the marriage between the NH and Jalanben because there was no registration of the marriage with India’s government. The relatives provided this declaration stating that they witnessed the May 27, 1951 marriage ceremony of the NH and Jalanben in Bokarwada, Taluka Visnagar, Dist. Mehsana, Gujarat State. Further, they stated that “several Hindu Brahmin Priests had solemnized the marriage ceremony” of the NH and Jalanben “along with several marriageable couples who came there for their marriage in a customary group marriage as is a custom with our shepherd community.” Finally, they stated that it was not customary in those days to register the “marriages of our castes” in the Government Register.
On July 7, 1993, the same two relatives provided a signed “Affidavit of Divorce” containing the signature and seal of an Executive Magistrate in Mehsana, India, to provide the facts of the divorce of the NH and Jalanben because there was no legal court certificate reflecting the divorce. The relatives provided this declaration stating that they had witnessed the May 27, 1951 marriage ceremony; that the NH and Jalanben had a son on June 1, 1964; that the marriage of the NH and Jalanben lasted from 1951 to 1969; that the marriage ended in 1969 before the NH moved to the United States; that the NH and Jalanben agreed that their son would stay with Jalanben in India until he became an adult; and that the NH would have responsibility for their son once he became an adult. Further, they stated that “it is customary to decide and declare the validity or otherwise of the marriages and the divorces in the community by community leaders, and as the decisions on marriages and divorces are taken periodically and in the groups, the legal court certificate of divorce is not available in the case of the divorce” of the NH and Jalanben.
Finally, the NH explained in his August 2011 statement that he did not list his marriage to Jalanben on his application for retirement benefits because “it was not considered a legal marriage,” so he instead referenced the marriage in the remarks portion of the application. It is our understanding, however, that the NH is not contesting Jalanben entitlement to divorced spouse benefits. Indeed, he has provided two detailed statements to the agency offering details of the marriage and divorce to support Jalanben entitlement to divorced spouse’s benefits.
Entitlement to Divorced Spouse’s Benefits
A claimant may be entitled to benefits as a number holder’s divorced spouse under the Act if the claimant can show, among other things, that the claimant was validly married under state law to the NH for 10 years immediately before the date the divorce became effective. Sections 202(b), 216(d)(1), and 216(h)(1)(A)(i) of the Act; 20 C.F.R. §§ 404.331(a), 404.345; POMS RS 00202.001, RS 00202.005, GN 00305.005. The Act provides that a claimant is validly married to a number holder for Social Security purposes if, at the time the application is filed, the courts of the state in which the number holder had a permanent home at the time of filing would find that the claimant and the number holder were validly married. Section 216(h)(1)(A)(i) of the Act; 20 C.F.R. §§ 404.331, 404.345; POMS RS 00202.001(A); GN 00305.005(B). Because the NH was domiciled in Texas at the time Jalanben filed the application, we look to Texas state law to determine whether their marriage and divorce was valid.
Texas Would Apply India’s Laws to Determine the Validity of the Marriage and Divorce
Because their marriage and divorce took place in India and because application of the laws of Texas and India would likely result in differing outcomes, a choice of law analysis is required. Thus, the initial question is whether Texas would apply the laws of India or Texas in determining the validity of this marriage and divorce between the NH and Jalanben. Historically, in choice of law decisions, Texas courts applied the law of the place of marriage or divorce to determine its validity (the place of celebration test). See Braddock v. Taylor, 592 S.W.2d 40, 42 (Tex. Civ. App. – Beaumont 1979, writ ref’d n.r.e.); Portwood v. Portwood, 109 S.W.2d 515 (Tex. Civ. App. – Eastland 1937, writ dismissed). However, the Texas Supreme Court held in Duncan v. Cessna Aircraft Co., 665 S.W. 2d 414 (Tex. 1984), Texas should follow the Restatement (Second) of Conflicts’ most significant relationship test in choice of law cases, except where the parties have agreed to a valid choice of law clause. Section 6 of the Restatement (Second) of Conflicts sets forth the following choice of law principles:
(1) a court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law;
(2) when there is no such directive, the factors relevant to the choice of the applicable rule of law include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum (the place of the trial),
(c) the relevant policies of other interested states and the relevant interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability, and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
In applying the most significant relationship test, it is not the number of contacts with a particular state or country that determines which law controls; rather it is the qualitative nature of the particular contacts. D~, 665 S.W.2d at 421.
Following D~, Texas courts of appeals have applied the most significant relationship test to choice of law questions in the context of marriage and divorce. See Seth v. Seth, 694 S.W.2d 459, 462-64 (Tex. App. – Forth Worth 1985, no writ). Thus, we must utilize the Restatement factors of the most significant relationship test to determine whether a Texas court would apply Texas or Indian law in deciding the validity of the NH’s and Jalanben Indian marriage and divorce.
As addressed in detail in our prior opinion dated March 9, 2012, the S~ case offers helpful guidance in examining how a Texas court would analyze the present facts under the significant relationship test. S~, 694 S.W.2d 459. The S~ case addressed the question of whether Islamic law or Texas law should apply to divorce proceedings in Texas, where prior marriage and divorce ceremonies also at issue all occurred under Islamic law in India and Kuwait. The S~ court determined that the Restatement factors of the relevant policies of the forum (Texas) and the protection of the parties’ justified expectations required application of Texas law to resolve the issues raised by the marriage and divorce ceremonies that occurred in Kuwait and India. Id. at 462-464. We determined that, under the specific circumstances and facts of the present matter, these same two Restatement factors require applying India’s laws to determine the validity of the NH’s and Jalanben marriage and divorce. Further, we determined that a majority of the remaining Restatement factors also support applying India’s laws. Accordingly, as addressed in our prior opinion dated March 9, 2012, we believe that a Texas court, in weighing the Restatement factors of the most significant relationship test with the specific facts of this matter, would find that India’s laws should be applied to determine the validity of the NH’s and Jalanben marriage and divorce. Therefore, we must apply Hindu law from the 1950s and 1960s to determine the validity of the marriage and divorce.
The 1951 Marriage is Valid Under Application of Hindu Marriage Laws
The Law Library of Congress Provided Information on Hindu Marriage Laws of the 1950s
Consistent with our established practice when a legal opinion request involves interpretation of foreign law, we sought guidance from the Law Library of Congress regarding the laws of marriage and divorce in India applicable to Hindus in the 1950s and 1960s. See Law Library of Congress, India, Hindu Marriage and Divorce Laws, No. 2012-008337 (August 2012) (attached); Law Library of Congress, India, Hindu Marriage and Divorce Laws, No. 2012-007370 (February 2012) (attached). In the February 2012 report in response to our initial request for assistance, the Law Library of Congress explained that a Hindu marriage in India is not valid unless it is solemnized with proper ceremonies and rites. The Law Library of Congress was unable to provide information regarding the validity of the NH’s and Jalanben marriage based on the limited information initially provided in the NH’s August 2011 statement and the relatives’ affidavits. Thus, in our March 9, 2012 opinion, we requested additional information regarding the NH’s and Jalanben caste and community, as well as a description of the customs involved, the form of their marriage, the specific wedding ceremonies involved, and the arrangement process and the role of guardians. We also asked for information needed to determine that the parties were not related and the marriage was not bigamous.
Further, in this February 2012 report, the Law Library of Congress explained that it was unable to provide information regarding the validity of the NH’s and Jalanben divorce also due to incomplete information. Thus, in our March 9, 2012 opinion, we requested additional information on the actual process of the divorce, including a description of the custom of divorce in their caste and community; a description of any ceremonies, rites, and rituals performed; who authorized or declared the divorce; whether the divorce was based upon mutual agreement; the grounds or basis for the divorce; and whether any paperwork was completed, such as a deed of release.
The agency sought to further develop the record by conducting a telephone interview and obtaining a second statement from the NH in May 2012. With this additional information, we again sought information from the Law Library of Congress, which responded on August 31, 2012. The following analysis is based upon the August 2012 Law Library of Congress report.
Because the 1951 Ceremony is the Solemnized Marriage Ceremony, Uncodified Hindu Law and Customs of the Rabari Caste Apply to Determine the Validity of the Marriage
As noted, a solemnized marriage ceremony is required for a valid Hindu marriage. The Law Library of Congress noted that after India gained independence from Britain in 1947, attempts were made to modernize Hindu legal tradition through codification, and that in the 1950s and 1960s, the Hindu Marriage Act of 1955 was the predominant legislative framework for the regulation of Hindu marriage and divorce in India. Further, the Bombay Registration of Marriages Act of 1953 was in force in the State of Bombay, which at the time included the territory of Gujarat, where the NH and Jalanben lived at the time of their marriage. Prior to 1955, however, uncodified Hindu law and custom was the prevailing framework regulating family matters, including marriage and divorce in India. Thus, to determine the applicable Hindu law, the initial question was whether the 1951 ceremony or the 1958 ceremony was the solemnized marriage ceremony.
In his August 2011 statement, the NH referred to the 1951 ceremony as “the original promise ceremony,” indicating it was a betrothal (sagai) or engagement ceremony. However, in his May 2012 statement, the NH explained in detail that the 1951 ceremony was a solemnized wedding ceremony and that he and Jalanben were married after that ceremony. Both affidavits provided by the NH’s relatives also refer to the 1951 ceremony as the solemnized marriage ceremony, state that the marriage began in 1951, and do not mention the second ceremony in 1958 or 1959. Accordingly, based on the evidence provided, the 1951 ceremony was the solemnized marriage ceremony between the NH and Jalanben. The NH further stated that he and Jalanben were both of the Karamsinh, Rabari caste. Thus, because the 1951 ceremony is the solemnized marriage ceremony, the Law Library of Congress indicated that uncodified Hindu law and custom and relevant customs of the Rabari caste would apply in analyzing this issue of the validity of the marriage and divorce of the NH and Jalanben.
The 1951 Marriage Ceremony Is a Solemnized Marriage Ceremony that Is Consistent With Hindu Law and the Rabari Caste Customs
The Law Library of Congress stated that under Hindu law, a solemnized marriage ceremony is required and all essential ceremonies, rites, and rituals must be performed to establish a valid Hindu marriage. See T.P. GOPALAKRISHNAN, HINDU MARRIAGE LAW at 46 (2d ed. 1959) (stating that ceremonies “of some sort are absolutely essential” to a Hindu marriage; “[a]s the ceremonies are so elaborate, and as custom sanctions variations in the ceremonies, law does not require strict proof of performance of ceremonies in every case. When it’s shown that a marriage has been performed in fact there would be a presumption that it was regularly performed in accordance with law.”); D.H. CHAUDHARI, THE HINDU MARRIAGE ACT, 1955 at 90 (3d ed. 1966) (stating that, “[m]arriage ceremonies vary[,] indeed in some cases, vary considerably, from one place to another and from one community to another. . . . Where the custom of the caste to which the parties belong observes certain ceremonies, those ceremonies should be observed); SATYAJEET A. Karamsinh, PRINCIPLES OF HINDU LAW at 663 (7th ed. 2000) (a marriage may be completed by the performance of ceremonies in accordance with the custom of the caste to which the parties belong). As noted, the evidence indicates that the 1951 ceremony is the solemnized marriage ceremony. Thus, the focus is upon determining whether the 1951 ceremony as described by the NH is consistent with applicable customs, ceremonies, rites, and rituals.
The Law Library of Congress located some information on the local customs and practices of marriages of the Rabari caste. See Eiluned , Marriage and Dowry Customs of the Rabari Kutch: Evolving Traditions in Wedding Dress Across Cultures 72 (Helen Bradley Foster & Donald Clay Johnson eds., 2003); S.K. Nandi, Rabari, in 22 People of India: Gujarat: Part Three 1160 (Kumar Suresh Singh & Rajendra Behari eds., 2002); Robyn, Wandering With India’s Rabari, 184(3) National Geographic 80 (Sept. 1993). The Law Library of Congress concluded that the NH’s description of the 1951 marriage ceremony and the description of the ceremony in the two affidavits of relatives were more or less consistent with uncodified Hindu law and the local customs and practices of the Rabari caste.
The Lack of Registration Does Not Invalidate the 1951 Marriage
Prior to the Bombay Registration of Marriages Act of 1953 and the Hindu Marriage Act of 1955, there was no marriage registration system. Thus, the lack of registration of the 1951 marriage does not impact the validity of the marriage under India’s laws.
The Underage Status of the NH and Jalanben Does Not Invalidate the 1951 Marriage
Regarding the underage status of the NH and Karamsinhi at the time of 1951 marriage, the Law Library of Congress stated that the underage status of the parties to the arranged marriage does not affect its validity and does not by itself render a marriage void or voidable under India’s laws. The Law Library of Congress concluded that child marriages appeared to be consistent with Hindu law and the customs of the Rabari people at the time of their marriage. Thus, the underage status of the NH and Karamsinhi does not render their 1951 marriage invalid under India’s laws.
The NH and Jalanben Were Validly Married in 1951 Under Hindu Law
In summary, the evidence provided indicates that the NH and Jalanben were validly married in 1951 in accordance with Hindu custom. Following the second ceremony in 1958 or 1959, the NH stated that he and Jalanben began living together with his family as was also customary. They had a son in 1964 and lived together for a total period of ten or eleven years until their divorce in 1969, at which time the NH moved to the United States. As the Law Library of Congress noted, there is “an extremely strong presumption of favour of the validity of a marriage and the legitimacy of its offspring if from the time of the alleged marriage the parties are recognized by all persons concerned as man and wife.” See SATYAJEET A. JALANBEN, PRINCIPLES OF HINDU LAW at 664. Based on the evidence provided and the Law Library of Congress’s report, we believe a Texas court, applying the applicable Hindu law, would find that the NH and Jalanben had a valid marriage in India beginning in 1951 with the first ceremony. See R.M. v. S.R.M., 867 N.Y.S.2d 378 (N.Y. Sup. 2008) (applying Hindu law and determining that the plaintiff and defendant, members of the Kamma subcaste and Sudra caste, were validly married in accordance with their caste customs in India in 1952). Accordingly, under the Act, the NH and Jalanben had a valid marriage beginning 1951.
The 1969 Divorce is Valid Under Application of Hindu Divorce Law
The evidence indicates that the NH and Jalanben obtained a divorce from community leaders in 1969 by making a declaration of divorce, as was their community’s custom. The affidavit evidence from relatives corroborated the NH’s statements regarding divorce. The Law Library of Congress stated that general Hindu law does not recognize divorce. However, the Law Library of Congress explained that parties to a Hindu marriage could obtain dissolution of the marriage in accordance with a valid custom. See SATYAJEET A. Karamsinh, PRINCIPLES OF HINDU LAW at 666; Hindu Marriage Act of 1955, § 29. A divorce by custom requires mutual agreement of the parties to the marriage to terminate the marriage. See D.H. CHAUDHARI, THE HINDU MARRIAGE ACT, 1955 at 352-353 (also noting that a divorce according to a caste custom is generally followed by a deed of release).
The Law Library of Congress also found information indicating that, unlike some Hindu communities, the Rabari caste appears to recognize divorce. See S.K. Nandi, Rabari, in 22 PEOPLE OF INDIA: GUJARAT: PART THREE 1159 (Kumar Suresh Singh & Rajendra Behari eds., 2002); Robyn , Wandering With India’s Rabari, 184(3) NATIONAL GEOGRAPHIC 80 (Sept. 1993). According to an anthropological survey, either spouse can divorce due to maladjustment or incapability to earn a livelihood. See S.K. Nandi, Rabari, in 22 PEOPLE OF INDIA: GUJARAT: PART THREE 1159 (Kumar Suresh Singh & Rajendra Behari eds., 2002).
Although the NH provided additional facts describing the custom of divorce for his community and the process of his and Jalanben divorce, the Law Library of Congress was unable to find information on the process and particulars of the relevant customs of the Rabari caste to conclude that the NH’s and Jalanben divorce process was consistent with custom. However, in light of the Law Library of Congress’s confirmation that the NH and Jalanben had a valid marriage pursuant to their custom, that a divorce by custom is permissible under Hindu law, and that the Rabari caste recognized the practice of divorce, we believe that a Texas court would likely have sufficient information to find that the NH and Jalanben obtained a valid divorce by custom in 1969. Accordingly, under the Act, the NH and Jalanben were divorced effective December 1969.
The 1969 Divorce is Valid Under Application of Principles of Equity
Even if, however, a Texas court was unable to determine with certainty the validity of their divorce under India’s laws based on the information available regarding the divorce process of the Rabari caste, we believe a Texas court would uphold the divorce as valid. We believe a Texas court would look at the totality of the evidence and apply equitable doctrines of estoppel or laches based on the following factors: the parties’ domicile in India at the time of their marriage and divorce, the parties’ mutual consent and participation in their divorce, the passage of time since their divorce, the NH’s reliance on the divorce when he remarried in 1973, and the NH’s current marriage lasting 39 years. See Social Security Ruling (SSR) 91-4, 1991 WL 298378 (S.S.A. June 25, 1991) (the agency considered the issue of whether Texas would recognize as valid a Haitian divorce decree and whether a claimant who was a party to the divorce would be estopped from denying its validity, concluding that whether or not a Texas court would recognize the Haitian divorce, the claimant would be estopped from challenging its validity); see also Memorandum from Regional Chief Counsel, Denver Region VIII, to Center for Operations and Systems Support, Denver/Dallas RSI Team, Marital Status of Zora (May 15, 2000) (concluding that a Colorado or Maryland court would likely apply the doctrine of laches and/or estoppel and bar the claimant from contesting the validity of a Haitian divorce obtained almost 25 years prior, particularly given that the claimant had since remarried in reliance on the divorce); Memorandum from Regional Chief Counsel, Philadelphia Region III, to Ass’t Reg. Comm. – MOS, Philadelphia, Validity of Dominican Republic Divorce NH: Thomas , Claimant: Cynthia (May 27, 2003) (concluding that a Virginia court would probably accept the Dominican Divorce as valid under the equitable doctrine of estoppel by laches, and as such, the claimant would qualify for divorced spouse’s benefits). We note that the agency’s operating instructions also comport with this conclusion. See POMS GN 00305.175(A)(2) (a person may be estopped from denying the validity of a divorce if he or she was the plaintiff in the divorce action; was the defendant and accepted the court’s jurisdiction; remarried after the divorce; accepted property, money, or a settlement on the basis of the divorce decree; or otherwise accepted or acted in recognition of the decree as valid (e.g., knew of the divorce and allowed it to stand unchallenged for a long time)). Accordingly, the following factors support our conclusion that a Texas court would uphold the validity of the divorce on principles of equity.
The first factor in support of upholding the validity of the divorce is the parties’ connection to India during their marriage and at the time of the divorce. The NH and Jalanben were residents of India at the time of their marriage and divorce. Jalanben continued to live in India for many years after the divorce. India properly had jurisdiction of this matter. See SSR 91-4, at 3 (a key factor which a Texas court would consider in determining whether to give effect to a foreign divorce decree is whether the parties to the divorce were domiciled in the foreign country when the decree was entered), citing Williams v. North Carolina, 325 U.S. 226(1944) (“[u]nder our system of law, judicial power to grant a divorce - jurisdiction strictly speaking - is founded on domicile .... Domicile implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance”). This is not a case in which one party to a marriage surreptitiously traveled to a foreign country having no connection to either party to the marriage for the sole purpose of obtaining a divorce. Instead, this matter involves a marital relationship between citizens of India that took place entirely in India. Therefore, a Texas court would likely find that this factor supports upholding the divorce as valid under principles of equity.
A second factor in support of upholding the validity of the divorce based on principles of equity is the parties’ consent to their divorce. The evidence indicates that the NH and Jalanben participated together in the divorce process, mutually agreed upon the divorce, and consented to the divorce pursuant to their custom. There is no evidence that either party procured the divorce fraudulently or through duress. See SSR 91-4 at 4 (noting that Texas courts have generally held that, where the parties to a foreign divorce have consented to the divorce and have submitted to the jurisdiction of the foreign court, they will be estopped from collaterally attacking the judgment; the agency concluded that the claimant’s consent to the divorce would be sufficient to allow a Texas court to estop the claimant from challenging its validity as there were no allegations of duress or coercion), citing Dunn v. Tiernan, 284 S.W.2d 754 (Tex. Civ. App. – El Paso 1955, writ ref’d n.r.e.) (applying doctrines of equitable estoppel and laches, the court held that the husband, who obtained bilateral divorce in Mexico was estopped from later denying the validity of the Mexican divorce given the lapse in time and the wife’s action in reliance upon the divorce). Thus, this factor weighs in favor of upholding the divorce.
A third factor in support of upholding the validity of the divorce is the length of time which has expired since the divorce was rendered, and the NH’s reliance upon the validity of the divorce with his remarriage. See SSR 91-4 at 4-5 (noting that because more than 10 years elapsed between the date of the divorce and the date the claimant applied for benefits, a Texas court could apply laches against the claimant, particularly where there is also evidence of a resulting disadvantage to another, such as a remarriage during the lapse in time). Over 40 years has passed since the divorce in 1969, and it is our understanding that no one has contested this divorce during this great passage of time. The NH and Jalanben have lived separately during this entire period of time, as the NH moved to the United States in 1969. Further, the NH relied upon the validity of the dissolution of his marriage to Jalanben when he married his present wife, Urmillawat Karamsinh, in the United States on June 25, 1973. The NH has remained married to Urmillawat Karamsinh since that time. The NH and Urmillawat Karamsinh have in good faith believed that they are married and have been living together in Texas as a married couple for almost 40 years. Texas has an interest in upholding the marriage between the NH and Urmillawat Karamsinh. The presumption of the validity of the most recent marriage is one of the strongest under Texas law. Texas Employer's Ass'n v. Elder, 282 S.W.2d 371, 373 (Tex. 1955); Schacht v. Schacht, 435 S.W.2d 197, 201 (Tex.Civ. App. - Dallas 1968, no writ). Accordingly, the length of time and the NH’s reliance upon the divorce with his remarriage supports upholding the validity of his divorce from Jalanben based on principles of equity.
Finally, we note that no one is challenging the validity of the divorce between the NH and Jalanben. Jalanben is presently of the position that she is the NH’s divorced spouse as she has applied for divorced spouse’s benefits. The NH has willingly supplied two detailed statements to the agency in support of Jalanben application for divorced spouse’s benefits on his record.
Therefore, based on the totality of the evidence and our extensive research, we believe a Texas court would ultimately uphold as valid the NH’s and Jalanben divorce, whether by finding it valid pursuant to India’s laws or through applying principles of equity. Accordingly, under the Act, the NH and Jalanben had a valid divorce effective in December 1969.
As addressed in our prior legal opinion dated March 9, 2012, we believe the State of Texas would apply India’s laws relevant to Hindu marriage and divorce in the 1950s and 1960s to determine whether the NH and Jalanben were validly married and subsequently validly divorced. As explained above, based on the totality of the circumstances in this particular case and information obtained from the Law Library of Congress regarding the applicable Hindu law, we believe a Texas court would find that the NH and Jalanben were validly married in 1951 and validly divorced in 1969.
Regional Chief Counsel
Assistant Regional Counsel
B. PR 00-042 Validity of a Marriage under Louisiana Law and of a Divorce under Texas Law (James , ~)
DATE: October 6, 1999
* An invalid marriage license does not invalidate a marriage if the parties took part in a marriage ceremony performed by someone that both parties reasonably believed was capable of performing the marriage;
* Louisiana statutory time limits invalidate a marriage license more than thirty days after the issuance of the license, but this has no effect on the validity of the marriage; and
* A marriage ceremony can occur in a parish other than the parish of issuance of a marriage license.
Official court records, e.g. judicial minutes, are sufficient evidence of the existence of a Texas judgement of divorce.
This memorandum is in response to your request for our legal opinion as to whether a marriage valid in Louisiana if it occurs more than a year after the issuance of a marriage license, and whether, in Texas, a minute entry indicating that a divorce was granted is adequate to prove an actual divorce. There are actually four distinct questions presented by the facts of this case. First, is a valid marriage license required for a marriage to exist under Louisiana state law? Second, is there a time limit from the issuance of a marriage license to the actual marriage ceremony? Third, can a valid marriage ceremony occur in a parish other than the one in which the license is issued.? And fourth, what is required to establish that a divorce occurred under Texas state law?
In summary, the answers to the questions are: 1) the validity of a marriage license is of no consequence if the parties took part in a marriage ceremony performed by someone that both parties reasonably believed was capable of performing the marriage; 2) Louisiana statutory time limits invalidate a marriage license more than thirty days after the issuance of the license, but this has no effect on the validity of the marriage; 3) a marriage ceremony can occur in a parish other than the parish of issuance of a marriage license; and 4) official court records of a divorce arc evidence of the existence of a proper Texas divorce.
James and Patsy were issued a license to be married on September 30. 1961, in DeSoto Parish, Louisiana. According to the marriage certificate, they were married by ceremony on April 30, 1963, in Haughton, Bossier Parish, Louisiana. There exists a court minute entry stating that a divorce was granted to James and Patsy on December 11, 1972, in Corpus Christi, Nueces County, Texas. There are also Pat 's (a/k/a Patsy a/k/a Patsy) own statements in the Social Security claims file that corroborate that she was divorced from James M~.
Pat applied for widow's benefits as the surviving divorced spouse of James . As you know, she would be entitled to such benefits if she otherwise met the criteria for widow's benefits and she was validly married to the wage earner for ten years immediately before her divorce became final. 42 U.S.C. § 416(d)(2); 20 CFR. § 404.336.
The Louisiana Civil Code outlines the contract of marriage as requiring (1) that the man and woman have no legal impediments to marriage, (2) that a marriage ceremony be performed, in which each party takes the other as husband and wife, and (3) that the ceremony be performed before someone that the parties reasonably believe is qualified to perform the ceremony. La. Civ. Code Ann. arts. 86 and 87. The Louisiana Revised Statutes provide that a marriage must be performed by an officiate, who can be a judge, justice of the peace, or minister. La. Rev. Star. Ann §§ 9:201-9:203. The statutes further provide that an officiant may not perform a marriage until he has received a license authorizing the marriage ceremony, issued in any parish regardless of the place that the marriage ceremony is to take place or the residence of the parties. La. Rev. Star. Ann. §§ 9:205 and 9:222. The marriage license is valid for thirty days after issuance. Rev. Star. Ann. § 9:235. No officiant may perform a marriage before seventy-two hours from the time of issuance nor after the expiration of a marriage license. La. Rev. Stat. Ann. §§ 9:235, 9:241.
Notwithstanding the statutory law, the Louisiana courts have emphasized that the only formal prerequisite to marriage is a ceremony performed by an individual the parties believed to be an officiate; therefore, the absence of a valid license does not necessarily invalidate a marriage. Succession of J~, 173 So.2d 857 (La. App.4th Cir. 1965). In J~, a Louisiana appellate court stated that violation of the aforementioned statutes, prohibiting a minister or other person from celebrating marriage unless done under authority of a marriage license, would not have the effect of invalidating an otherwise legal marriage. The court further stated that the Louisiana statutes regarding the requirements for a valid marriage license are directed to the officiate, not the couple being married. Therefore, the court held that a marriage which had been otherwise duly contracted and solemnized is not null for want of a proper marriage license, confirming that a valid marriage exists even where there is not a valid marriage license. Id.
Addressing the question of what is required in Texas to prove that a divorce exists, Texas law provides that a judgment by a state court is always admissible as evidence for the purpose of proving that the judgement was rendered. Wilson v. Wilson's Estate, 581 S.W.2d 729 (Tex. App.-Dallas 1979, rehearing denied).
In the present case, we do not have the actual judgment. However, the Social Security claims folder contains a copy of the judicial record minute entry stating that a judgment of divorce was granted. A similar situation was faced by a Texas appellate court, which held that the judicial records, consisting mainly of the memorandum of judgment and the minutes, were properly before the court as evidence of the terms and effects of the judgment. McCarthy v. George, 623 S.W.2d 772 (Tex. App-Fort Worth 1981, rehearing denied). The court further held that judicial documentation was of the sufficiency and weight necessary to establish the existence of a divorce despite contradictory evidence, which existed in that case. Id. Another Texas appellate court stated that judicial records are always admissible as evidence of the fact that. a judgment had been rendered, the time of the rendition and the effects of the judgment, but not the underlying facts which the judgment was based. Scott v. Scott, 554 S.W.2d 274 (Tex. App.-Houston [1st Dist.] 1977, no writ) (citing Adams v. State Bd. of Ins., 319 S.W.2d 750 Tex. App.-Houston 1958, second motion for rehearing overruled January 8, 1959).
The principle that judicial records reflect the existence of a judgment is recited in several types of cases. For example, a notice of judgment of bankruptcy was admissible to prove that a judgment of bankruptcy existed. Nichols v. International Harvester Credit Corp., 533 S.W.2d 896 (Tex. App.-San Antonio 1976, n.w.h.) Further, the Department of Public Safety's abstracts of judgment and notices of conviction were found to be evidence of the actual judgments. Tomlinson v. Texas. Dept. of Public Safety, 429 S.W.2d 590 (Tex. App.-Corpus Christi 1968, n.w.h.); Gunn v. Texas. Dept. of Public Safety, 410 S.W.2d 207 (Tex. App.-A~ 1966, n.w.h.).
In summary, Louisiana law establishes that even without a valid marriage license there is a valid marriage as long as the parties had no other impediments to marriage, took part in a marriage ceremony, and believed that the person conducting the ceremony was qualified to do so. Texas law clearly establishes that the judicial minutes are sufficient evidence of the existence of a judgment of divorce. It therefore appears from the evidence in the case file that Pat was married to James from April 30, 1963, until their divorce was granted on December 11, 1972.
C. PR 90-001 Texas' Recognition of a Haitian Divorce - Ruth , SSN~
DATE: February 1, 1990
TEXAS -- A Texas court would not be bound to declare a Haitian divorce valid. Texas divorce law requires residency for a set time in the divorce granting state. The residency requirement was not met in this case. Therefore, the strong possibility that the Haitian divorce would not be enforced by a Texas court constitutes sufficient evidence to rebut the presumption of a valid subsequent marriage. ( Ruth ., -- RAVI  to RC, SSA 02/01/90)
This memorandum is in response to your request for a legal opinion regarding the validity of a Haitian divorce. Specifically, you have asked whether Texas would recognize this divorce decree and whether the wage earner's divorced spouse is estopped to deny the validity of the divorce. It is our view that a Texas court would not be required to uphold the validity of this Haitian divorce. Additionally, there is sufficient evidence demonstrating that the marriage between James and Ruth was not legally dissolved to rebut the presumption that the later marriage between James and Eva was valid. Further, we feel that estoppel would not apply in this case.
James and Ruth were married on May 4, 1953 in Glasgow, Montana. Based on information in Ruth file, it appears that James went to Haiti on February 1, 1979 to obtain a divorce. He alleges that he was a legal resident of Jakarta, Indonesia at the time of the divorce. The divorce decree itself listed his address as Matador, Texas, however, Ruth was a resident of Florida during this time. The Indonesian government recognized the Haitian divorce and granted James a marriage certificate. He then married Eva in Jakarta, Indonesia on March 28, 1979. The State Department in Indonesia issued a green card to Eva. James and Eva returned to Texas in 1984.
On May 28, 1986, Ruth applied for independently entitled divorced wife's benefits. She reported that she had no notice of the divorce proceedings until June 1986. James and Ruth reported that there was no written property settlement. In a telephone conversation with the district office, James reported that he allowed Ruth to keep the house in Florida, a car, furniture, and bank accounts. He also stated that he continued to support the children. Ruth stated that she received nothing in the way of a property settlement.
As you know, to be eligible to receive wife's insurance benefits, a claimant must meet the requirements set out at §202(b)(1) of the Social Security Act (the Act). According to §202(b)(1) of the Act, "the wife (as defined in section 216(b)) and every divorced wife (as defined in section 216(d)) of an individual entitled to old-age or disability insurance benefits . . .shall be entitled to a wife's insurance benefit . . ." In order to be eligible as a wife as defined by §216(c), a woman must be the wife of the individual entitled to old-age benefits and have been married to the individual for at least one year. To be eligible as a divorced wife under §216(d), a woman must be the divorced wife of the individual entitled to old-age benefits, and have been married to the individual for at least 10 years prior to the divorce. In this case, James and Ruth were married for at least 25 years.
The first question for consideration is whether the current marriage between James and Eva would be presumed to be valid. It is well accepted that the validity of a marriage will be determined by the local law which has the most significant relationship to the spouses. In this case, James and Eva were married in Indonesia in 1979 and apparently resided there until 1984 when they moved to their current residence in Texas. Absent proof of foreign laws, the presumption arises that the laws of that jurisdiction are the same as those of Texas. Schacht v. Schacht, 435 S.W. 2d ]97, 202 (Tex Civ. App.-Dallas 1968). Therefore, the law of Texas will be used in determining the validity of the marriage.
Texas law presumes that the later of two successive marriages is valid. Estate of Claveria V. Claveria, 615 S.W. 2d 164 (Tex. 1981). However, Texas law also provides that a marriage is void if either party was married and the prior marriage is not dissolved. TEX. FAM. CODE ANN. tit. 1 §2.22. The legal presumption of validity of a second marriage must prevail until rebutted by evidence which negatives the effective operation of every possible means by which a dissolution of the prior marriage could have taken place. S~, supra at 201; Hudspeth v. Hudspeth, 206 S.W.2d 863 (Tex. Civ. App.-A~ 1947). However, in order to rebut the presumption of legality of the second marriage, there need not be evidence establishing absolutely or to a moral certainty that the prior marriage was not dissolved, but there must be sufficient evidence, standing alone, to negative such facts. S~, supra.
In this case, the marriage between James and Eva is presumed valid. However, if the previous marriage between James and Ruth was not properly dissolved, this would rebut the presumption of validity of the second marriage, and the later marriage would be void. Therefore, the second question for consideration is whether the Haitian divorce obtained by James would be considered valid under Texas law.
Article 4 §1 of the United States Constitution, the "full faith and credit" clause, requires each state of the union to enforce the acts, records or judicial proceedings "of every other state." This clause does not, however, require states to enforce decrees of foreign countries. Schacht v. Schacht, 435 S.W. 2d 197 (Tex. Civ. App. - Dallas 1968). Should a state decide to do so, the decision would be based on the doctrine of comity. This doctrine allows a state court to give full effect to a decision of another jurisdiction based on the mutual interests of respect and justice. Therefore, while a Texas court could give effect to a Haitian divorce decree, it is not bound to do so.
A key factor which a Texas court would consider in determining whether to give full faith and credit to a foreign divorce is whether the parties to the divorce were domiciled in the foreign country when the decree was entered. S~, supra. According to the U.S.- Supreme Court, "(u)nder our system of law, judicial power to grant a divorce - jurisdiction strictly - is founded on domicile. Domicile implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance." Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 LE 1577 at 1581 (1944). Thus, if the parties to a foreign divorce were not domiciled in the particular foreign country, the courts will rarely recognize the validity of the divorce, even where the country had no such domicile requirement. Turman v. Turman, 99 S.W. 2d 947 (Tex. Civ. App., Ft. Worth 1936), cert. den. 301 U.S. 698; 13 ALR 3d 1419; 24 AM. Jur. 2d §1106.
When determining the validity of a foreign divorce, a Texas court will assume the divorce law of the foreign country is the same as the divorce law of Texas in the absence of proof to the contrary. Tallant v. State, 658 S.W. 2d 828 (Tex. Civ. App. - Ft. Worth, 1983); Webb v. Webb, 461S.W. 2d 204 (Tex. Civ. App. - San Antonio, 1970). Texas law requires residence in the state for 6 months and in the county where the divorce is sought for 90 days by one of the parties before the court in the county can assert jurisdiction over the parties. TEX-FAM. CODE ANN. §321 (Vernon 1986). Neither James nor Ruth were domiciled in Haiti at the time of their divorce as evidenced by the fact 'that the divorce decree itself lists James as living in Texas, and Ruth as living in Florida. Further, James reported that he was residing in Indonesia, but never alleged that he was domiciled in Haiti. Therefore, a Texas court could refuse to recognize the divorce as valid based on jurisdictional grounds.
It should be noted that even where the facts of a given case persuade a court that a foreign divorce should be given effect, such as subsequent remarriage of one or both of the parties, the court will generally find that the parties are estopped to deny the validity of the divorce, rather than specifically declaring that the divorce itself is valid. Webb V. Webb, supra, (court held that parties who jointly petitioned a Mexican court for decree would be estopped to challenge its validity in a later proceeding). See also: D~ v. T~, 284 S.W. 2d (Tex. Civ. App.-E1 Paso, 1955) (one who has participated in a foreign divorce action will not be allowed to challenge validity). Therefore, it is our opinion that a Texas court would not be bound to declare that the James Haitian divorce is valid. Further, the strong possibility that the Haitian divorce would not be enforced by a Texas court constitutes sufficient evidence to rebut the presumption that the subsequent marriage is valid.
The third question in this case is whether the State Department determined that the Haitian divorce was valid. James and Ruth submit that the State Department's action of issuing a green card to Eva was a recognition that the divorce and subsequent marriage were valid. After an examination of the law and facts, however, we do not believe that the act of issuing a green card is dispositive of the validity of the Haitian divorce for Social Security benefit purposes.
What James views as a "recognition" of the divorce decree by the United States Consul in Haiti, was merely a statement by the consul that the signature of the Haitian official was authentic, not a statement that the divorce was valid. The State Department regulations provide that whenever a consular officer is requested to authenticate the signature of local authorities on a document of marriage (or divorce) when he was not a witness of the marriage (or divorce), he shall include in the body of his certificate of authentication the qualifying statement, "For the contents of the annexed document, the Consulate (General) assumes no responsibility. 22 C.F.R. §52.2 (1989).
In this case, Donald Consul of the United States of America, merely authenticated the signature of the Haitian official who signed the divorce decree. The document signed by Donald clearly states on its face that he assumed no responsibility for the attached decree. The document also bears a stamp on its face stating that, "The American Embassy, Port-Au-Prince, Haiti can assume no liability for the validity of the decree, and the decree may possibly be voidable in a proper judicial proceeding."
The State Department regulations also require a petition to classify an alien as the spouse of a United States citizen to be accompanied by a certificate of marriage to the beneficiary and proof of the legal termination of all previous marriages of both wife and husband. 8 C.F.R. §204.2 (1989). These regulations further provide that there will be automatic revocation of registration of an alien by the Secretary of State upon the legal termination of the relationship of husband and wife when a petition has accorded status as the spouse of a citizen or lawful resident alien. 8 C.F.R. §205.(a)(4) (1989). It appears then that approval of a petition for a green card based on the fact that the alien is married to a United States citizen is not a determination that a marriage is valid, and approval can be revoked upon a subsequent finding that it is not valid. Consequently, it is our opinion that there has been no official governmental recognition or validation of the Ruth Haitian divorce or James marriage to Eva.
Finally, we have considered whether Ruth would be estopped from denying the validity of the divorce. Texas courts generally have held that where the parties to a foreign divorce have consented to the divorce and have submitted to the jurisdiction of the foreign court, they will be estopped form collaterally attacking the judgment. D~ v. Tiernan, 284 S.W. 2d (Tex. Civ. App. - E1 Paso, 1955) (one who has participated in a foreign divorce action will not be allowed to challenge validity); Webb v. Webb, supra (court held that parties who jointly petitioned a Mexican court for decree would be estopped to challenge its validity in a later proceeding); Moody v. Moody, 465 S.W. 2d 836 (Tex. Civ. App.- Corpus Christi, 1971 writ ref. n.r.e.) (a party who participated in a divorce suit without objecting to the jurisdiction of the court, may not thereafter assail the decree in a collateral proceeding on the theory that one or more of the parties were non-residents). Texas courts have also held that where a party to an invalid divorce has received money or property pursuant to that divorce, that party will be estopped from later attacking the decree. Morehouse v. Morehouse, 111S.W. 2d 831 (Tex. Civ. App.-San Antonio, 1983).
We also note that POMS §00305.465, which generally comports with state law, lists five grounds upon which a party may be estopped to deny the validity of a divorce. Section 00305.465 states that a party may be estopped to. deny the validity of a divorce if he or she either:
A. Was the plaintiff in the divorce action; B. Was the defendant and accepted the court's jurisdiction; C. Remarried after the divorce; D. Accepted property or money or a property settlement on the basis of the divorce decree; or E. Otherwise accepted or acted in recognition of the decree as valid.
In the situation presented, Ruth was not a party to the divorce, as evidenced by the ex parte decree. She also did not consent in any way to the jurisdiction, and received no official notice of the Haitian divorce. In fact, she purports not to have known of the divorce until after she applied for Social Security benefits. Ruth has not remarried, as evidenced by the fact that she applied under the name "Ruth ", and reported that her most recent husband was James. Additionally, there is no evidence that Ruth accepted property, money or a property settlement on the basis of the divorce. Although James reported in a telephone conversation with the district office that he allowed Ruth to keep the house in Florida, a car, furniture and bank accounts, the information in the claims folder indicates that Ruth had access to these assets before the divorce was obtained, and she did not acquire them pursuant to the divorce. Further, both James and Ruth reported that there was no written property settlement. Finally, there is no evidence that Ruth otherwise accepted or acted in recognition of the decree as valid.
In conclusion, the law and facts in this case indicate that a Texas court would not be required to uphold the validity of this Haitian divorce. Additionally, there is sufficient evidence demonstrating that the marriage between L. J. and Ruth B~ was not legally dissolved to rebut the presumption that the later marriage between L. J. B~ and Eva G~ was valid. Further, we feel that estoppel would not apply in this case.
Following information we received from the Library of Congress on India’s laws, on March 9, 2012, we issued an opinion finding that the evidence submitted with a prior legal opinion request was insufficient to make a determination as to whether the marriage and divorce were valid. See Memorandum from Regional Chief Counsel, Dallas, Region VI, to Ass’t Reg. Comm. - MOS, Chicago, Texas Law – Validity of Underage Indian Marriage (NH Karamsinh, SSN ~ (March 9, 2012) (attached); Law Library of Congress, India, Hindu Marriage and Divorce Laws, No. 2012-007370 (February 2012) (attached). In this opinion, we requested additional factual information regarding the NH’s and Jalanben community, caste, marriage ceremonies, and divorce. You have now resubmitted this request for a legal opinion along with additional information in the form of a detailed statement from the NH obtained on May 22, 2012.
Religious affiliation is the prime determinant in choosing the governing law for marriage and divorce issues in India. See Joel A. Nichols, Multi-tiered Marriage: Ideas and Influences from New York and Louisiana to the International Community, 40 Vand.’l L. 135, at *166 (2007). India has enacted various systems of religious laws for Hindus, Muslims, Christians, and Parsis that are intended to apply to adherents of those faiths. Id. at *165. The current legal structure in place holds five distinct categories: Hindu, Muslim, Christian, Parsi, and a residual category of secular law. Id. at *168. Further, customary religious law is permitted to supplement (though not contradict) statutory law. Id. It is membership in a particular “religious” community by birth, or entrance into that community by conversion, that is decisive in choosing which law will apply to a person. Id. at *166. The majority of India is Hindu, and thus, Hindu law applies to all Indians who are not Muslim, Christian, Parsi, or Jewish. Id. at *169. The evidence provided indicates that the NH and Jalanben are Hindu. Thus, when we refer to India’s laws in this memorandum, we are referencing Hindu law.
The agency accepts secondary evidence in situations such as this where the marriage and divorce are pursuant to custom and there is no official documentation of the marriage or divorce. For example, the agency accepts statements from a number holder, spouse, and witnesses to establish a Chinese custom marriage, customary Ghana marriage, and tribal or Muslim marriage in the Philippines. See POMS GN 00307.419 (Chinese custom marriage), GN 00307.515 (sensitive instructions as to evidence from Ghana), GN 00307.769 (tribal and Muslim marriages in the Philippines).
In these agency forms, the NH acknowledges that “anyone who makes or causes to be made a false statement or representation of material fact in an application or for use in determining a right to payment under the Social Security Act commits a crime punishable under Federal law and/or state law,” and that he “affirm[s] that all information [he has] given in this document in true.”
As addressed in 20 C.F.R. § 404.331(a), Jalanben eligibility rests on whether she and the NH were validly married for 10 years and divorced under state law. The other requirements for eligibility as a divorced spouse are found in 42 U.S.C. § 402(b)(1)(A) - (D) and 20 C.F.R.§ 404.331(b) - (f). We assume that you are satisfied that the other grounds for entitlement are met.
Permanent home means the number holder’s true and fixed home or legal domicile. 20 C.F.R. § 404.303.
Please refer to our prior opinion dated March 9, 2012, for a detailed choice of law analysis supporting our opinion that Texas would apply India’s laws to determine the validity of the marriage and divorce. We have not repeated that detailed choice of law analysis here in this present opinion. Instead, in this present opinion, our focus is upon the application of India’s laws.
Please refer to our March 9, 2012, opinion for a detailed discussion of the relevant policies of the forum; the protection of justified expectations; the relevant policies of other interested states and the relevant interests of those states in the determination of the particular issue; the certainty, predictability, and uniformity of result; ease in the determination and application of the law to be applied; the needs of the interstate and international systems involved; and the basic policies underlying the particular field of law.
Citations to India’s laws are contained in the Law Library of Congress’s legal opinions.
We note that the agency has previously recognized as valid an arranged marriage in India where the evidence established that it met the customary Sikh requirements of India in 1948 and was valid under India’s laws, despite the fact that there was no license, certificate, or contemporary written record of the arranged marriage. See Memorandum from Regional Chief Counsel, San Francisco Region IX to Ass’t Reg. Comm. – MOS, San Francisco, Ajit Singh Dhillon (August 13, 1979) (concluding that the customary Sikh marriage was valid under Indian law, and hence would be recognized as valid in California, and granting benefits based on this marriage).
The language of J~ reiterates the law as it was presented in Holmes v. Holmes, 6 La. 463 (1834) and in the 1870 codification of the Louisiana Civil Code.
An ex parte decree is one that is granted for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.
For example, Ruth cannot be estopped for failure to challenge the divorce for a long period of time because she had no notice of the divorce. Based on these conclusions, we feel that consideration should be given to Ruth possible entitlement to Social Security benefits as the legal wife rather than the divorced wife of James