Issue
You requested an opinion on whether the State of South Dakota would recognize the
Mexican marriage at issue. You also asked if the marriage certificate was valid proof
of a legal name change for Terra M. P~ (n~ H~).
Short Answer
South Dakota recognizes the validity of marriages contracted outside the jurisdiction
of the state, provided the marriage is valid by the laws of the jurisdiction in which
such marriage was contracted. South Dakota would recognize the Mexican marriage at
issue. South Dakota recognizes the common law right of an individual to assume a name,
which upon common acceptance in the community becomes that person’s name, so long
as such name is used nonfraudulently. Because South Dakota recognizes the common law
right to change one name with no required documentation, a married woman may assume
her husband’s surname upon marriage, as long as it is not for fraudulent purposes.
As such, the marriage certificate is valid proof of a legal name change for Terra
M. P~ (n~ H~).
Facts
You provided us with a copy of an application for a replacement Social Security Number
Card in the name of Terra M. P~ (n~ H~). The application indicated that Ms. P~ is
a U.S. citizen. You also provided us with a copy of a Mexican marriage certificate,
which appears to be a custodian-issued certification of the record, and a copy of
an English translation of the marriage certificate by a certified Agency translator.
The marriage certificate states the surnames of the bride and groom, the names of
the parents, and the birth dates of the bride and groom.
DISCUSSION
South Dakota statutory provisions provide that any marriage contracted outside the
jurisdiction of the state .... which is valid by the laws of the jurisdiction in which
such marriage was contracted, is valid in South Dakota. S.D. Codified Laws § 25-1-38
(2005). Ms. P~ presented what appears to be a custodian-issued marriage certificate,
which under Agency policy, may serve as evidence of a valid foreign ceremonial marriage.
See POMS GN 00305.020, GN 00301.050.
With regard to the question of whether the marriage certificate is valid proof of
a legal name change, POMS RM 00203.210B provides that in order for a marriage certificate to be acceptable as an identity
document it must show, in addition to the new name, the person's age or date of birth
or parents names. The marriage certificate that you provided contains the required
information necessary to be acceptable as an Agency identity document.
In addition, POMS RM 00203.210B.1.d provides that whether a legal name change for a U.S. resident based on a foreign
marriage is valid depends on the law of the State where the applicant resides. There
is no South Dakota statutory provision or case law that provides a definitive answer
to the question of whether a marriage certificate is valid proof of a name change;
however, South Dakota recognizes the common law right of a person to assume a name
which upon common acceptance in the community becomes that person's name, provided
such name is used nonfraudulently. See Ogle v. Circuit Court, Tenth (Now Sixth) Judicial Circuit, 227 N.W. 2d 621 (S.D.1975). No specific event
is required for an individual to change his/her name as long as it is not being changed
for a fraudulent purpose and is being used consistently (a fact implied if he/she
is commonly and generally known by the assumed name). See S.D. Codified Laws § 21-37-2-37-5 (2005); S.D. Op. Atty. Gen. 65, 1977 WL 35969.
The information that you provided to us indicates that Ms. P~'s application for a
replacement Social Security Number Card reflects her husband's surname. On its face,
it appears that Ms. P~ intends husband to become commonly and generally known in her
community under her husband> '> s surname, which comports with the common law requirement
to legally change your name, i.e., common acceptance in the community of the assumed
name.
Moreover, the information you provided does not reflect that Ms. P~ requested name
change is for fraudulent purposes. Therefore, we believe the marriage certificate
is valid proof of a legal name change.
CONCLUSION
Accordingly, we advise that:
(1) The State of South Dakota recognizes foreign marriages;
(2) The State of South Dakota would recognize the foreign marriages at issue as valid;
and
(3) The marriage certificate Terra M. P~ (N~ H~) presented is valid proof of a legal
name change.
Deana R. E~-L~
Acting Chief Counsel, Region V
By:
Robert L. V. S~
Assistant Regional Counsel