QUESTIONS PRESENTED
               For purposes of R~’s (R~’s) application for spousal benefits on the number holder
                  A~’s (NH’s) account, you asked whether under Arkansas law an El Salvadoran religious
                  ceremonial marriage certificate proves R~ and the NH were legally married, and if
                  so, whether the evidence is sufficient to overcome the presumed validity of NH’s last
                  marriage.
               
               ANSWER
               We conclude Arkansas law would not recognize a marriage between R~ and the NH because
                  the evidence does not establish that their purported marriage was valid in El Salvador
                  where it was celebrated. Having concluded R~ has not proven a valid marriage between
                  her and the NH, we need not further address issues related to the presumed validity
                  of the NH’s last marriage.
               
               BACKGROUND
               The NH is domiciled in Arkansas and receives Title II retirement benefits. On his
                  benefit applications, the NH listed marriages to M~ in 1987 and M2~ in 2008.[1]
               In July 2014, R~ filed for Title II spousal benefits on the NH’s account. To prove
                  her marriage to the NH, R~ provided a copy of an El Salvadoran religious ceremonial
                  marriage certificate. On September XX, 2009, a priest administrator from the Church
                  of S~ P~ the A~ in S~ P~, El Salvador, executed the certificate stating R~ and the
                  NH were married before a clergyman on March XX, 1978, and the marriage was recorded
                  in the church’s marriage registry. The certificate includes the couple’s names, their
                  cities of birth, their parents’ names, the witnesses at the ceremony, and the officiating
                  clergyman. R~ alleged, but provided no proof, that the NH never divorced her. The
                  NH denies he and R~ were ever married, but acknowledges they have a child together
                  and that he pays child support.
               
               ANALYSIS
               A. Entitlement to Social Security Spousal Benefits under the Social Security Act
               A claimant is entitled to spousal benefits under Title II of the Social Security Act
                  (Act) if, among other things, she is the wife or deemed wife of an insured individual
                  who is entitled to old-age or disability benefits.[2] See 42 U.S.C. §§ 402(b), 416(a)(1), (b); 20 C.F.R. § 404.330. For a claimant to establish
                  she is a wife, the claimant bears the burden of proving she is in a valid marital
                  relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 404.330(a), 404.344-.346, 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); 20 C.F.R. §§ 404.344, 404.345; Program Operations Manual
                  System (POMS) RS 00202.001(A); GN 00305.005(B). Permanent home means the individual insured’s true and fixed home or legal domicile.
                  20 C.F.R. § 404.303. Because the NH was domiciled in Arkansas at the time R~ filed
                  her application, we look to Arkansas law to determine whether the NH and R~ were validly
                  married.
               
               B. Under Arkansas Law, R~ Has Not Proven a Valid Marriage to the NH
               As noted in your legal opinion request, the NH was allegedly married subsequent to
                  his purported marriage with R~, including his latest to M2~ in 2008. At the outset,
                  Arkansas law presumes the NH’s most recent 2008 marriage is valid and that any prior
                  marriages ended with divorce. See Stokes v. Heckler, 773 F.2d 990, 991-92 (8th Cir. 1985) (citing Missouri Pacific R.R. Co. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938)); Blythe v. Blythe, 410 S.W.2d 379 (Ark. 1967); Sims v. Powell’s Estate, 432 S.W.2d 838, 840 (Ark. 1968); Bruno v. Bruno, 256 S.W.2d 341, 344 (Ark. 1953). This presumption of the validity of the most recent
                  marriage is one of the strongest presumptions under Arkansas law and a party attacking
                  the marriage has a difficult burden of proving “clear and decisive” evidence to rebut
                  the presumption. See Stokes, 773 F.2d at 991-92; Blythe, 410 S.W.2d at 379. Therefore, R~ must provide evidence to prove she is validly married
                  to the NH and that neither she nor the NH obtained a divorce in order to overcome
                  this presumption. R~ has not met this heavy burden because, as explained below, she
                  has not proven she validly married the NH.
               
               1. Arkansas Law’s Recognition of Foreign Marriages
               As there is evidence of an El Salvadoran marriage, we next consider Arkansas law regarding
                  recognition of foreign marriages and what law an Arkansas court would apply to determine
                  the validity of the foreign marriage. Under Arkansas law, marriages that “would be
                  valid by the laws of the state or country in which the marriages were consummated
                  and in which the parties then actually resided shall be valid in all courts in this
                  state.” Ark. Code. Ann § 9-11-107(a); see also Estes v. Merrill, 181 S.W. 136, 138 (Ark. 1915) (noting that it was “settled law that marriages, contracted
                  without this state, which are valid by the laws of the state or country in which the
                  same are consummated the parties then actually resided, are valid in this state”).
               
               R~ alleged the marriage occurred in El Salvador. Thus, for the marriage to be valid
                  under Arkansas law, the marriage must be valid under El Salvadoran law and the parties
                  to the marriage must have actually resided in El Salvador.[3] We requested an opinion from the United States Law Library of Congress (Library of
                  Congress) on whether the El Salvadoran religious ceremonial marriage certificate R~
                  provided the agency establishes a valid marriage under El Salvadoran law. They indicated
                  that it was insufficient evidence to establish a valid marriage under El Salvadoran
                  law because El Salvadoran law requires a civil marriage.
               
               2. El Salvadoran Law Requires a Civil Marriage
               The Library of Congress summarized El Salvadoran law as providing that only a marriage
                  contracted before an appropriate civil authority has civil effects. Proof of a marriage
                  in El Salvador requires a civil marriage certificate issued by either the Civil Registry
                  of Persons prior to October 1, 1994, or by a marriage certificate issued by the Registry
                  of Family Status on or after October 1, 1994. See Library of Congress, El Salvador: Marriage Law, LL File No. 2015-012721 (Sept. 2015) (attached).
               
               The Library of Congress noted the religious ceremonial marriage certificate R~ submitted
                  indicates the marriage occurred before a clergyman, not an appropriate civil authority.
                  See id. at pp. 1, 3. Further, a church administrator executed the certificate. See id. at p. 1. Thus, it was neither a certificate of civil marriage issued by the Civil
                  Registry of Persons nor a marriage certificate issued by the Registry of Family Status.
                  As a result, the religious ceremonial marriage certificate is insufficient to establish
                  a valid marriage under El Salvadoran law. See id. at p. 3.
               
               The religious ceremonial marriage certificate states the parties complied with civil
                  law, and El Salvadoran law mandates a religious ceremony could not be performed without
                  first presenting the officiating clergy with a certificate attesting that a civil
                  marriage had been contracted in accordance with the law. See id. at pp. 1, 3. Nevertheless, the Library of Congress advised that the only permissible
                  proof of a valid marriage is a certificate of civil marriage issued by the Civil Registry
                  of Persons or a marriage certificate issued by the Registry of Family Status, neither
                  of which is present in this case See id. at p. 3. Accordingly, because El Salvadoran law would not consider the marriage valid
                  based only on the submitted religious ceremonial marriage certificate, Arkansas law
                  would likewise not consider the marriage valid.[4] Therefore, R~ has not established her relationship to the NH as his spouse under
                  the Act. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.330(a), 404.344, 404.345.[5]
               C. Entitlement to Spousal Benefits under the Act Based on a Deemed Valid Marriage
               We were not asked for an opinion on whether R~ might be eligible for spousal benefits
                  as a deemed spouse. However, as noted above, if a claimant cannot establish her status
                  as an insured’s wife under state law per 42 U.S.C. § 416(h)(1)(A), she may be eligible
                  for benefits based on a deemed valid marriage. See 42 U.S.C. § 416(h)(1)(B); 20 C.F.R. § 404.346; see also POMS GN 00305.005(A) (in determining whether a claimant qualifies as a spouse under the Act, consider
                  all of the following types of marriages: valid ceremonial or common-law marriage;
                  invalid marriage that permits a spouse to inherit under state intestate personal property,
                  e.g. putative; custom marriage; or deemed marriage). For a claimant to establish she
                  is a deemed wife, she must prove she went through a marriage ceremony in good faith
                  with the insured that would have resulted in a valid marriage except for a legal impediment.
                  See 42 U.S.C. § 416(h)(1)(B); 20 C.F.R. §§ 404.346, 404.704, 404.727. A legal impediment
                  includes only an impediment that results because a previous marriage had not ended
                  at the time of the ceremony, or because there was a deficiency in the procedure followed
                  for the intended marriage. See 42 U.S.C. § 416(h)(1)(B)(iv); 20 C.F.R. § 404.346. It is arguable that there could
                  be a deficiency in the procedure under the facts here because there is evidence of
                  a religious ceremony performed in a country that requires a civil ceremony for a valid
                  marriage. However, to be eligible for spousal benefits based on a deemed valid marriage,
                  the claimant and the insured must have been living in the same household at the time
                  the claimant applied for benefits or the insured died.[6] See id. The evidence submitted shows that R~ was not living in the same household as the
                  NH at the time she filed her application. Further, the record is not sufficiently
                  documented to determine whether R~ went through the marriage ceremony in good faith.
                  See 20 C.F.R. § 404.346. Thus, R~ cannot qualify as the NH’s spouse based on a deemed
                  valid marriage. See 42 U.S.C. § 416(h)(1)(B).
               
               CONCLUSION
               We believe Arkansas would not recognize the El Salvadoran marriage as valid. Although
                  Arkansas law considers a foreign marriage valid if the marriage was valid under the
                  laws of the country in which the marriages was celebrated and in which the parties
                  then actually resided, the submitted El Salvadoran religious ceremonial marriage certificate
                  is insufficient proof of a valid marriage in El Salvador, which requires evidence
                  of a civil marriage. Because she is not validly married to the NH under Arkansas law,
                  she is not the NH’s spouse for purposes of her application for spousal benefits on
                  the NH’s account. Should R~ submit proof of a valid civil marriage in El Salvador,
                  we recommend development of whether R~ and the NH resided in El Salvador when the
                  marriage took place, as well as further evidence necessary to overcome the presumption
                  of the validity of the NH’s most recent marriage to M2~, his current spouse.
               
               Michael McGaughran
               Regional Chief Counsel
               By: James D. Sides
               Assistant Regional Counsel