QUESTION PRESENTED
Would New York State recognize the same-sex South African marriage of T~ (claimant)
and E~, the number holder (NH), and would the claimant be entitled to auxiliary spouse
benefits on the NH’s record?
OPINION
New York State, the NH’s current domicile, recognizes same-sex marriages validly entered
into in foreign jurisdictions. South Africa has statutorily recognized same-sex marriages
since November 30, 2006. The claimant and the NH were lawfully married under South
African law in C~ T~, South Africa, on August XX, 2007. Therefore, under the specific
facts of this claim, the South African marriage would be recognized by New York. Accordingly,
under the Social Security Act (Act) the claimant is the NH’s spouse and thus entitled
to auxiliary spouse benefits on the record of the NH, assuming that the claimant has
satisfied other statutory and regulatory requirements for such benefits.
BACKGROUND
The claimant and the NH were married in C~ T~, South Africa. The Marriage Registration
Extract (extract), dated September XX, 2007, and stamped “Unabridged Civil Union,”
identifies the couple’s “Civil Union Type” as “Marriage.” The extract lists August
XX, 2007 as the “Marriage Date” and the date the “[m]arriage was solemnized.”
The NH has been receiving Social Security Retirement benefits since October 2012.
The claimant filed for auxiliary spousal benefits on the record of NH on December
XX, 2013. The NH lived in New York at the time the application was filed. He has not
since changed his domicile.
ANALYSIS
A. Social Security Act and Regulations
An insured wage earner’s spouse is eligible to receive old-age benefits as an auxiliary
beneficiary if, among other requirements and as relevant here, the spousal relationship
has lasted at least one year. See 42 U.S.C. §§ 402(b) and (c); 416(b), 416(h)(1)(A); 20 C.F.R. § 404.330(a). An individual
is the spouse of the insured if the courts of the state in which the insured is domiciled
would find that the applicant and the insured were validly married at the time the
application was filed. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. The insured’s
legal domicile is the state where the insured had a permanent home at the time of
the application for spouse’s benefits. See 20 C.F.R. §§ 404.303, 404.345. Here, New York was the NH’s domicile at the time of
the application and the NH continues to reside at the New York address listed in the
application. Therefore, we look to New York law to determine if the claimant and the
NH are validly married. Our specific inquiry focuses on whether the South African
same-sex marriage is valid under New York law.
B. New York State Law Regarding Same-Sex Marriage
New York State long defined marriage as the voluntary union of one man and one woman
as husband and wife. See Hernandez v. Robles, 855 N.E.2d 1, 6, 9-12 (N.Y. 2006) (holding constitutional “New York’s statutory
law [that] clearly limits marriage to opposite-sex couples”). Same-sex marriage has
only been legal in New York State since the Marriage Equality Act took effect on July
24, 2011, N.Y. Dom. Rel. Law § 10-a (McKinney 2013).
However, New York law recognized same-sex marriages lawfully solemnized outside of
the state, including in foreign countries, prior to the enactment of the Marriage
Equality Act. On February 1, 2008, a New York appellate court held that New York would
recognize same-sex marriages validly entered into in other jurisdictions, including
the July 2004 Ontario, Canada same-sex marriage at issue before the court. Martinez v. County of Monroe, 850 N.Y.S.2d 740, 742 (4th Dept. 2008), leave to appeal denied, 859 N.Y.S. 2d 617, 889 N.E.2d 496 (2008).[1] amicus brief in the District Court for the Southern District of New York, reinforcing its
position that, “New York has long recognized as valid same-sex marriages that were
solemnized under the laws of other States or nations….” Brief for the State of New
York as Amicus Curiae Supporting Plaintiff, Windsor v. U.S., 797 F. Supp. 2d 320 (2011), 2011 WL 3098311. See also, U.S. v. Windsor, ___ U.S. ___, 133 S.Ct. 2675, 2683 (2013) (“New York deems [Windsor’s] Ontario marriage
to be a valid one.”).
The decision in Martinez, considered together with the 2011 amicus brief filed by the State of New York support the conclusion that, since at least
February 1, 2008, New York has recognized same-sex marriages validly entered into
in other jurisdictions. [2] Thus, we must next determine if the South African marriage was validly entered into.
C. South African Law Regarding Same-Sex Marriage
The Civil Union Act, which went into effect on November 30, 2006, legalized same-sex
marriages in South Africa. Civil Union Act 17 of 2006, Government Gazette [GG] No. 29441 (Nov. 17, 2006), (available at:http://www.gov.za/documents/download.php?f=67843).
In December 2005, the South Africa Constitutional Court held that the country’s marriage
laws violated its constitution by failing to afford same-sex couples the same rights
accorded to opposite-sex couples. Minister of Home Affairs and Another v. Fourie and Another 2006 (3) BCLR 355, 398–399 (CC), (http://www.saflii.org/za/cases/ZACC/2005/19.htmlavailable at). The Constitutional Court provided the South Africa Parliament one year to rectify
the statutory deficiencies, resulting in the enactment of the Civil Union Act. Id.
The Civil Union Act, the common law, the Marriage Act 25 of 1961, and the Recognition
of Customary Marriages Act 120 of 1998 govern marriages under South African law. Jacqueline H & Anneliese R, Family and Succession Law in South Africa, 81 (2012). The Civil Union Act permits same-sex and opposite-sex couples to enter
into a civil union. The civil union can be registered as either a marriage or a civil
partnership according to the couple’s preference (Civil Union Act 17 of 2006 §§ 1,
2, 11); the officer presiding over the civil union must ask the couple their choice
and record the selection on the marriage certificate. Id. §§ 11 &12; Civil Union Regulations, 2006, § 8, Government Notice No. 29439 (Nov. 29, 2006), (available at:
o.za/assets/articles/attachments/ 03721_regulation1206.pdf
http://us-cdn.creamermedia.c.)
A civil union, whether registered as a marriage or as a civil partnership, has the
same legal ramifications, including with respect to intestate succession, as the other
forms of marriage in South Africa – civil marriage occurring under common law or the
Marriage Act, and customary marriage occurring under common law or the Customary Marriages
Act. [3]
CONCLUSION
The claimant’s marriage to the number holder is valid under New York law, and the
claimant is entitled to benefits on the NH’s account, assuming that the claimant has
satisfied other statutory and regulatory requirements for such benefits.