QUESTION PRESENTED
On December XX, 2015, you requested a legal opinion regarding whether G~, the claimant,
qualified as a widow of deceased wage earner M~ (NH), where the NH was already married
on the date he married the claimant in Iran.
ANSWER
Our opinion is that the District of Columbia would recognize the claimant’s marriage
to the NH as valid for the purposes of her entitlement to widow’s benefits on the
NH’s record.
BACKGROUND
The NH ceremonially married his first wife, N~, on December XX, 19XX in Pakistan.
Subsequently, the NH married the claimant on August XX, 19XX in Qzvin, Iran. At the
time of their marriage in 1977, the claimant believed that the NH was divorced from
his first wife. The NH and claimant lived together until 1979 when the NH moved to
England. The NH subsequently moved to the United States in the early 1980s. The claimant
joined the NH in the United States in 1986, and the claimant and the NH lived together
until 1987-1988 when they separated. They had one child together. At a later date,
the NH returned to the United Kingdom where he lived until his death. The NH died
in Pakistan in September 2012.
The NH’s first wife –N~ – applied for benefits in April 2013 and requested benefits
beginning in September 2012, when the NH died. She is currently receiving widow’s
benefits on the NH’s application. In or around June 2015, the claimant applied for
benefits in the Frederick, Maryland field office, based on the NH’s record.
DISCUSSION
A surviving spouse of an insured who has died is entitled to widow’s benefits if,
among other things, such surviving spouse (1) files an application; (2) is at least
60 years old; (3) was validly married to the insured under State law; (4) was married
to the insured for at least 9 months immediately before the insured died; and (5)
is not currently married. 42 U.S.C. § 402(e);
20 C.F.R. § 404.335.
Alternatively, if the applicant cannot qualify as a legal spouse under State law,
the applicant may still be entitled to widow’s benefits if she would, under the laws
applied by such courts in determining the devolution of intestate personal property,
have the same status with respect to the taking of such property as a wife, husband,
widow, or widower of such insured individual. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R.
§ 404.345. [1]
In determining the validity of the surviving widow’s marriage to the deceased insured,
the Agency applies the law of the State where the insured was domiciled, i.e., had
a permanent home, at the time of the insured’s death. 42 U.S.C. § 416(h)(1)(A)(i);
20 C.F.R. § 404.345. If the insured’s home is not in one of the 50 states, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, or American Samoa, the Agency will rely
upon and apply the laws of the District of Columbia. Id. Here, because the NH was domiciled in the United Kingdom at the time of his death,
the Agency applies the laws of the District of Columbia to determine if the NH and
claimant were validly married.
Under the law of the District of Columbia, the validity of a marriage is determined
by the law of the jurisdiction in which the marriage was entered into by the parties.
Bansda v. Wheeler,
995 A.2d 189, 198-99 (D.C. 2010); McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951) (citing 2 Beale, Conflict of Laws, pp. 703, 704;
35 Am. Jur., Sec. 167); Carr v. Carr,
82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946); Hitchens v. Hitchens, 47 F. Supp. 73 (D.D.C. 1942). The only exception is when the marriage is in violation
of strong public policy of the District of Columbia. Hitchens, 47 F. Supp. at 74.
The District of Columbia defines marriage as the legally recognized union of two people.
D.C. Stat. Ann. § 46-101(a). With regard to marriages entered into within the District
of Columbia, the statute provides that “[a]ny person may enter into a marriage in
the District of Columbia with another person, regardless of gender, unless the marriage
is expressly prohibited by § 46-401.01 or 46-403.” Id. The statute invalidates marriages entered into within the District of Columbia where
a person has been previously married and that marriage has not been terminated. Additionally,
with regard to marriages entered into in the District of Columbia, section 46-401.01
provides, in relevant part, that certain “marriages are prohibited in the District
of Columbia and shall be absolutely void ab initio,” including “[t]he marriage of
any persons either of whom has been previously married and whose previous marriage
has not been terminated by death or a decree of divorce.” D.C. Stat. Ann. § 46-401.01.
Despite the prohibition on polygamous marriages occurring within the District of Columbia
itself, we have found no statutory provisions or case law in the District of Columbia
which would indicate that valid polygamous marriages performed in a foreign country
would violate the public policy of the District of Columbia. [2] Indeed, there is an inherent distinction between a valid polygamous marriage performed
in a foreign country and a polygamous marriage that is invalid at its inception. The
first is valid at the time and in the place of the celebration of the marriage; the
second is not.
Moreover, other courts have recognized that polygamous marriages, which would otherwise
be considered invalid, could be treated as valid for purpose of intestate succession
if the marriages were valid where they were entered into because doing so would not
offend the public policy intent of prohibiting such marriages. See, e.g., In re Lenherr’s Estate, 455 Pa. 225, 231
(Pa. 1974) (citing In re Dalip Singh Bir’s Estate, 83 Cal. App. 2d 256, 188 P.2d 499 (Ca. Dist. Ct. App. 1948) (finding that no public
policy would be affected by dividing the intestate’s estate between two surviving
wives where marriage took place in a foreign province allowing polygamous marriages
and where the marriages would be held valid in California to the extent of allowing
the wives to share intestate’s estate equally). Accordingly, given that a polygamous
foreign marriage would likely not offend the public policy of the District of Columbia,
if polygamous marriage was lawful in Iran at the time that the NH and claimant married,
the claimant could qualify for widow’s benefits.
We consulted with a foreign law specialist in the Global Legal Research Center of
the Library of Congress in determining whether polygamous marriage was lawful in Iran
in 1977. The specialist advised that the Civil Code of Iran, which is based on Islamic
law, does not contain a prohibition against polygamy; indeed, in Iran, having one
wife is not considered an impediment to marrying a second wife. Moreover, the 1967
Family Protection Law provided that a husband could marry more than one wife with
court permission.
Here, the NH and claimant were married in Qzvin, Iran in August 1977. The claimant
submitted her Iranian marriage certificate to establish proof of her marriage. The
claimant also submitted a certificate of permission to marry that was issued by the
Secretary of State of Iran giving permission for the NH and claimant to get married.
The certificate was dated March XX, 19XX. Regardless of the claimant’s purported good
faith in entering the marriage (i.e., her statement that she believed the NH was divorced from his first spouse), because
a husband was lawfully permitted to marry more than one wife in Iran in 1977 with
permission of the court, the NH’s marriage to the claimant (a second wife) appears
to be valid under Iranian law.
In light of the claimant’s valid polygamous marriage to the claimant in Iran, and
because the Iranian polygamous foreign marriage likely does not offend the public
policy of the District of Columbia, we are of the opinion that District Columbia courts
would recognize the validity of the marriage for purposes of recognizing claimant
as the NH’s widow.
CONCLUSION
Based upon our review of District of Columbia law, the history of Iranian law, and
the facts you provided to us, we believe that the claimant can be considered the NH’s
widow for purposes of widow’s benefits.
Sincerely,
Nora Koch
Acting Regional Chief Counsel
By: _____________
Naomi Mendelsohn
Assistant Regional Counsel