Brief Summary
The Civil Marriage Equality and Religious Freedom Act of 2013, enacted on May 7, 2013,
allows same-sex couples to marry in Delaware as of July 1, 2013. Parties to a same-sex
marriage are given the same right to change their name based upon the marriage under
common-law as opposite-sex couples. Parties to a preexisting civil union in Delaware
need not dissolve their civil union and have one year to choose to convert their civil
union to a marriage with or without another ceremony. However, if the couple does
not convert their civil union to a marriage by July 1, 2014, the civil union will
automatically convert to a marriage. Upon the effective date of the Act, July 1, 2013,
civil unions cannot be formed in Delaware.
Questions Presented
We are providing this advice in accordance with the Program Operations Manual System
(POMS) RM 10212.035, Evidence of a Name Change based on a U.S. Same-Sex Marriage. [1] Section D of RM 10212.035 provides that when a State legalizes same-sex marriages, an opinion from the Regional
Chief Counsel should be obtained regarding the following information:
(1) the date the State will begin issuing marriage licenses and certificates to same-sex
couples;
(2) whether the State permits parties to the same-sex marriage to change their names
based on the marriage;
(3) whether a prior entered civil union or domestic partnership must be dissolved
before entering into a same-sex marriage; and
(4) any change to the status of a prior or new civil union or domestic partnership
entered into in the same State.
Discussion
-
1.
The date Delaware will begin issuing marriage licenses and certificates to same-sex
couples.
The Civil Marriage Equality and Religious Freedom Act of 2013 (the “Act”), enacted
on May 7, 2013, allows same-sex couples to marry in Delaware as of July 1, 2013. Delaware
statute requires a 24-hour waiting period between the issuance of a marriage license
and the marriage ceremony. Del. Code Ann. Tit 13, § 107(a) (West 2013). Thomas, Chief
Deputy Clerk of the Peace of New Castle County, Delaware advised that although marriage
licenses will not be issued to same-sex couples until July 1, 2013, the 24-hour waiting
period will be waived as permitted in Del. Code Ann. Tit 13, § 107(d)(1) (West 2013),
to allow same-sex marriages to take place on that date.
-
2.
Whether Delaware permits parties to the same-sex marriage to change their names based
on the marriage.
The Act provides for the equal application of all laws of the state of Delaware relating
to marriage, married spouses or their children to same-gender or different gender
married spouses and their children. Although Delaware has a statutory procedure for
a legal name change by court order under Del. Code Ann. Tit.10, §5901 (West 2013),
under common law, these formal procedures are not required for a name change following
a marriage. See Degerberg v. McCormick, 40 Del. Ch. 471, 184 A.2d 468 (1962) (stating that statutes which authorize a proceeding
to change a name by court order are universally held not to affect the common law
right to a name change). In addition, Thomas confirmed that parties to a same-sex
marriage are able to change their names in the same manner as parties to an opposite-sex
marriage without requesting a court-ordered name change if the new name is the last
name of either party or a hyphenated combination of the last name of both parties.
However, Thomas also advised that in the event that the parties to a same-sex marriage
are seeking to change their last name to an entirely different last name, then the
parties must follow the statutory procedures to obtain a court order.
Thomas explained that for a name change following marriage, the party desiring the
name change must change their name with the Social Security Administration and the
Delaware Division of Motor Vehicles (DMV). The website for the Delaware DMV indicates
that to change a name due to marriage on a driver’s license or ID card, the party
seeking a name change must, within 30 days, appear in person with his or her old driver’s
license and the marriage certificate. http://www.dmv.de.gov/services/driver_services/faqs/dr_faq_idchanges.shtml (last visited Jun. 4, 2013). However, because the Delaware DMV uses Social Security
Number online verification, the name change must be first processed by SSA or the
DMV will not issue a new license or ID card. Id.
-
3.
Whether a previously entered into same-sex marriage, civil union, or domestic partnership
between the parties must be dissolved before the parties can enter into a same-sex
marriage in Delaware.
The Act allows for parties to a civil union that is not the subject of a pending proceeding
for dissolution, annulment or legal separation to convert their civil union to a marriage
prior to July 1, 2014 by application for a marriage license to the clerk of the peace
of the county in which their civil union license was issued, with or without further
solemnization of such marriage. Furthermore, on July 1, 2014, all remaining civil
unions will automatically convert to marriages if they are not currently subject to
a proceeding for dissolution, annulment or legal separation. Accordingly, the parties
do not need to dissolve their existing civil union prior to entering into a same-sex
marriage. Likewise, if the parties have previously entered into a civil union in another
jurisdiction, they will not be required to dissolve this union prior to marrying in
Delaware. Although Delaware does not have same-sex domestic partnerships, Thomas confirmed
that if the parties entered into a domestic partnership in another jurisdiction, they
need not dissolve this partnership before entering into a same-sex marriage in Delaware.
Finally, although Delaware will recognize same-sex marriages solemnized outside of
Delaware as marriages, in the event that same sex couples previously married in another
state seek to marry the same partner again in Delaware, Thomas confirmed that such
couples will be permitted to marry in Delaware without having to dissolve their previous
out-of-state union.
Nevertheless, under the Act, parties applying for a marriage license must provide
the “date and place of previous marriages, civil unions, domestic partnerships or
other substantially similar legal unions, and termination of previous marriages, civil
unions, domestic partnerships or other substantially similar legal unions.” Therefore,
if parties want to enter into a marriage with a person other than a person with whom
they have already entered into a marriage, civil union or domestic partnership, they
must first dissolve this union. Thomas confirmed that if one of the parties is already
a party to a same-sex marriage, civil union or domestic partnership with another person,
the previous union must be dissolved before entering into a same-sex marriage in Delaware.
-
4.
Whether there is any change to the status in prior or new civil unions entered into
in Delaware.
As of July 1, 2013, the effective date of the Act, no new civil unions will be formed
in Delaware. Furthermore, on July 1, 2014, all remaining civil unions not currently
subject to a proceeding for dissolution, annulment or legal separation will automatically
convert to marriages. The effective date of such a marriage shall be deemed to be
the date of solemnization of the original civil union.
Notably, the Act also provides that both parties to legal unions (other than marriages)
between two persons of the same gender established in another jurisdiction, will be
afforded the same rights, benefits and protections, and will be subject to the same
responsibilities, obligations, and duties as a marriage for the purposes of Delaware
law. However, for such recognition to apply, the union must be validly formed in such
other jurisdiction, the parties to the union must meet the eligibility requirements
to enter into a marriage in the state of Delaware, and the union must afford and impose
on the parties substantially the same rights, benefits, protections, responsibilities,
obligations, and duties of marriage.
Nora R. Koch
Acting Regional Chief Counsel
By: _______________________
Tara A. Czekaj
Assistant Regional Counsel