TN 19 (10-23)

PR 05830.200 Malta

A. PR 23-017 Validity of Same-Sex Marriage Performed in Malta—Life Case—REPLY

Date: September 6, 2023

1. Syllabus

The number holder (NH) and Claimant entered into a same-sex marriage on September XX, 2019 in Malta. We believe District of Columbia courts would find that the Claimant and the NH entered into a valid same-sex marriage under Malta’s laws. Thus, we believe there is legal support for the agency to find that the Claimant is the NH’s spouse for purposes of determining entitlement to Title II benefits on the NH’s record.

2. Opinion

QUESTION PRESENTED

For purposes of R~’s (Claimant’s) application for spouse’s insurance benefits[1] under Title II of the Social Security Act (Act) on the record of the number holder R~ (NH), you asked whether the Claimant is the NH’s spouse based on the same-sex marriage they entered into on September XX, 2019, in Valletta, Malta. It is our understanding that the NH and the Claimant are domiciled in Israel.

OPINION

Because the NH was domiciled in Israel and outside of the United States at the time the Claimant’s application for benefits was filed, per section 216(h)(1)(A), the agency applies the law of the District of Columbia to determine the marital status between the Claimant and the NH. Under general conflict of law rules and the doctrine of comity, District of Columbia courts would generally look to Malta’s laws to determine the validity of a marriage entered into in Malta.[2] We believe District of Columbia courts would find that the Claimant and the NH entered into a valid same-sex marriage under Malta’s laws on September XX, 2019, as evidenced by a copy of an Act of Marriage registered in the Public Registry Office of Valletta, Malta.[3] Thus, we believe there is legal support for the agency to find that the Claimant is the NH’s spouse for purposes of determining the Claimant’s entitlement to Title II benefits on the NH’s record.

BACKGROUND

On October XX, 2021, the Claimant filed an application for spouse’s insurance benefits on the NH’s record alleging that she and the NH were married on September XX, 2019, in Valletta, Malta. In support of the marriage in Malta, the Claimant provided a copy of what appears to be a signed and completed Series C, Public Registry, “Act of Marriage” registered in the Public Registry Office of Valletta, Malta showing the Claimant and the NH as spouses.[4]

ANALYSIS

Federal Law: Entitlement to Spouse’s Insurance Benefits as a Spouse[5]

Under Title II of the Act, a claimant may be entitled to spouse’s insurance benefits on an insured individual’s record if, among other things, the claimant is the spouse of the insured individual entitled to old-age or disabled insurance benefits and their marital relationship has lasted at least one year before the date the claimant filed the application for benefits. See 42 U.S.C. §§ 402(b), (c), 416(a)(1), (b), (f); 20 C.F.R. § 404.330(a); see also Program Operations Manual System (POMS) RS 00202.001B (the claimant meets the one year marriage duration requirement if he or she has been married to the insured individual for at least one continuous year immediately before the day the claimant files the application; this duration requirement “may be met on the basis of an application actually filed before the first anniversary of the marriage as long as the one-year anniversary occurs prior to adjudication” of the claim).

As pertinent here, the Act provides two methods for a claimant to show that he or she is the spouse of an insured individual who is domiciled outside of the United States at the time an application is filed.[6] First, the agency will find a claimant to be an insured individual’s spouse if the courts of the District of Columbia would find that the claimant and the individual were validly married at the time the claimant filed the application. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, if the claimant was not validly married to the individual, the claimant will be deemed to be the insured individual’s spouse if under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a spouse of the insured with respect to the taking of such property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

It is our understanding that the NH was domiciled in Israel and outside of the United States when the Claimant filed the application for spouse’s benefits. Therefore, we consider whether District of Columbia courts would find the couple to be validly married.

District of Columbia Law: Valid Foreign Marriage

The District of Columbia follows the general rule that the validity of the marriage is determined by the law of the jurisdiction where the marriage occurred.[7] See Gill v. Nostrand, 206 A.3d 869, 875 n. 4 (D.C. 2019) (recognizing a “ceremonial marriage in Brazil as a matter of comity”); Cerovic v. Stojkov, 134 A.3d 766, 778 (D.C. 2016) (in a divorce action, applying Serbian law to determine marital status for purposes of equitable distribution of marital property under D.C. law); Bansda v. Wheeler,995 A.2d 189, 198 (D.C. 2010) (in a divorce action, applying Dutch law to determine marital status for purposes of equitable distribution of marital property under D.C. law); see also McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951) (in an annulment action for a marriage contracted in Virginia, applying Virginia law); Hitchens v. Hitchens, 47 F. Supp. 73 (D.D.C. 1942) (in an annulment action for a marriage contracted in Maryland, applying Maryland law); Rosenbaum v. Rosenbaum, 210 A.2d 5, 7 (D.C. 1965) (“[m]arriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the law of the state where entered into, be recognized as valid in every other jurisdiction”) (quoting Loughran v. Loughran, 292 U.S. 216, 223 (1934)).

Here, the Claimant alleges that she and the NH married in Valletta, Malta on September XX, 2019, and presented a marriage certificate.[8] Thus, District of Columbia courts would determine their marital status based on the marriage laws of Malta. We turn next to Malta’s laws on same-sex marriage.

Malta Law: Valid Same-Sex Marriage

The Claimant alleges that she and the NH were married on September XX, 2019, in Valletta, Malta. In support of the marriage, the Claimant provided a copy of a Series C, Public Registry, “Act of Marriage” registered in the Public Registry Office of Valletta, Malta showing the Claimant and the NH as spouses. The Act of Marriage appears to be fully completed and signed.

The law governing same-sex marriage in Malta is contained in the Marriage Act.[9] Malta’s Marriage Act was amended in 2017 to permit same-sex marriage.[10]

The procedure for registering acts of marriage is contained in Malta’s Civil Code.[11] Malta law provides for certain formalities to establish a valid marriage, including requesting banns of matrimony and publicly displaying (publishing) the banns of matrimony, showing the registrar their birth certificates, signing a declaration under oath that there is no legal impediment to their marriage or any other lawful reason it should not occur, and obtaining a certificate from the registrar that the banns have been published and completed.[12]

Malta law requires that the marriage be contracted in front of at least two witnesses and the person officiating the ceremony and civil marriages must occur in the presence of the registrar or an authorized officer of the Marriage Registry.[13] The act of marriage is completed and delivered to be registered immediately after the marriage is completed.[14] Religious marriages are also recognized under the Marriage Act provided they follow certain rules.[15] There are restrictions on marriage in Malta that would result in the marriage being void, including an underage marriage, an incapacity to enter into a contract, marriage between certain relatives, and a prior undissolved marriage or cohabitation.[16]

The Malta Civil Code requires the Public Registry Office to hold five register books, including one for the registration of acts of marriage.[17] All marriages that occur in the island of Malta must be registered in the Public Registry Office in Malta.[18] A copy of an act of marriage that is registered according to the Civil Code is “deemed a true and authentic copy for all purposes of law provided this copy is signed by the Director of the Public Registry who receives it,” which includes an electronic signature.[19]

In summary, per Malta’s laws, provided the formalities of a marriage are observed and the parties have no restrictions regarding their capacity to marry, a marriage will be valid, including a same-sex marriage.[20] Further a copy of an act of marriage with a valid signature from the Director of Public Registry is deemed to be a true and authentic copy for all purposes of law.

Here, the Claimant has provided what appears to be a copy of a signed and completed Act of Marriage registered in the Public Registry Office in Valletta, Malta to support her marriage to the NH on September XX, 2019. As it appears that the Claimant and the NH entered into a valid marriage under Malta’s laws on September XX, 2019, we believe District of Columbia courts would recognize their same-sex marriage.

CONCLUSION

Because the NH was domiciled in Israel and outside of the United States at the time the application for benefits was filed, per section 216(h)(1)(A), the agency applies the law of the District of Columbia to determine the marital status between the Claimant and the NH. Under general conflict of law rules and the doctrine of comity, District of Columbia courts would generally look to Malta’s laws to determine the validity of a marriage in Malta. We believe District of Columbia courts would find that the Claimant and the NH entered into a valid same-sex marriage under Malta’s laws on September XX, 2019, as evidenced by a copy of an Act of Marriage registered in the Public Registry Office of Valletta, Malta. Thus, we believe there is legal support for the agency to find that the Claimant is the NH’s spouse for purposes of determining her entitlement to Title II benefits on the NH’s record.


Footnotes:

[1]

The Act provides for wife’s insurance benefits and husband’s insurance benefits and defines the term “spouse” as wife or husband. See 42 U.S.C. §§ 402(b)(1), (c)(1), 416(a)(1), (b), (f). We use the terms spouse and spouse’s benefits in this opinion.

[2]

You requested our opinion on the law as to same-sex marriage in Israel and Malta. Although it is our understanding that the NH is domiciled in Israel, the NH and the Claimant were married in Malta. Thus, the determinative issue in evaluating marital status under section 216(h)(1)(A) of the Act concerns the law as to same-sex marriage in Malta, as applied by the courts of the District of Columbia.

[3]

Our discussion of the marriage laws of Malta is based on information we received from the Law Library of Congress. See Malta: Same-Sex Marriage, Law Library of Congress Report, LL File No. 2023-022497 (August 2023) (Law Library of Congress Report - Malta).

[4]

The Claimant has provided the agency’s preferred evidence of a ceremonial marriage. See 20 C.F.R. § 404.725(b)(2).

[5]

The Claimant must satisfy other criteria for entitlement to spouse’s insurance benefits that we do not address as they are outside the scope of the legal opinion request, which asks only about their marital relationship.

[6]

In determining a claimant’s relationship as the insured’s spouse, the agency applies the law of the State in which the insured was domiciled at the time the application was filed. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. If the insured was not domiciled in any State, as here, the agency applies the law of the District of Columbia. Id.

[7]

However, the District of Columbia courts will not extend comity to a foreign country’s laws, including marriage laws, and judgments if doing so would be against the District of Columbia’s strong public policy. See U.S. v. One Gulfstream G-V Jet Aircraft, 941 F.Supp.2d 1, 8 (D.C. Cir. 2013) (“[i]nternational comity is a doctrine of deference based on respect for the decisions of foreign sovereigns . . . the doctrine is accurately described as a ‘golden rule among nations – that each must give the respect to the laws, policies and interests of others that it would have others give to its own in the same or similar circumstances’”). There is no indication that the District of Columbia courts would find recognition of this foreign same-sex marriage to be against the District of Columbia’s strong public policy. In March 2010, the District of Columbia began to recognize same-sex marriages through the enactment of the Equal Access to Marriage Act (EAMA). See D.C. Code § 46-401; Gill v. Nostrand, 206 A.3d at 875 and n.4 (recognizing that “a same-sex couple may enter into common-law marriage in the District of Columbia” and “this rule applies retroactively” and further recognizing the appellee’s same-sex ceremonial marriage entered in Brazil as a matter of comity); see also POMS GN 00210.003(A) (stating that the District of Columbia has permitted same-sex marriage since March 9, 2010).

[8]

It is our understanding that the couple lives in Israel and the NH was domiciled in Israel at the time of the application, but there has been no evidence provided of a recognized religious marriage in Israel. See Cohen v. Shushan, 212 So.3d 1113, 1119 (Fla. Dist. Ct. App. 2017) (“The State of Israel limits marriage within its borders to religious marriages created through recognized religious authorities . . .. Thus, in Israel there is one, and only one, avenue to form a marriage: through a recognized religious authority.”). Instead, the Claimant alleges that they are married based on their marriage in Malta. Israel’s recognition of their same-sex marriage under Malta’s laws is not determinative to the issue of the Claimant’s marital status pursuant to section 216(h)(1)(A). We note that Israel will register foreign same-sex marriages and began doing so in 2006 through a Supreme Court decision. See Israel: Recognition of Same-Sex Marriage Entered Abroad, Law Library of Congress Report, LL File No. 2023-022497 (August 2023) (Law Library of Congress Report - Israel) (examining the distinction under Israeli law of registration of a foreign same-sex marriage from recognition of status given to such marriages).

[9]

Law Library of Congress Report – Malta, at 1 (citing Marriage Act, cap. 255, https://perma.cc/NH82-LHJ6.).

[10]

Law Library of Congress Report – Malta, at 1 (citing Marriage Act and other Laws (Amendment) Act 2017, No. 23/2017, https://perma.cc/ZT4W-CSGX.).

[11]

Law Library of Congress Report – Malta, at 1 (citing Civil Code, cap. 16 art. 238, https://perma.cc/Z4C5-589X.).

[12]

Law Library of Congress Report – Malta, at 1-2 (citing Marriage Act, cap. 255, art. 7 and noting the forms used are contained in the schedule to the Marriage Regulations, SL 225.01, https://perma.cc/53RH-KBCG.).

[13]

Law Library of Congress Report – Malta, at 2 (citing Marriage Act, cap. 255, arts. 13-15).

[14]

Law Library of Congress Report – Malta, at 2 (citing Marriage Act, cap. 255, art. 15).

[15]

Law Library of Congress Report – Malta, at 2 (citing Marriage Act, cap. 255, arts. 17, 32(A) and noting that the forms for an act of marriage for religious ceremonies is contained in the Marriage Forms Regulations, SL 255.02, https://perma.cc/5YKS-MVP5.).

[16]

Law Library of Congress Report – Malta, at 2-3 (citing Marriage Act, cap. 255, arts. 3(1), (4), (5), (6).

[17]

Law Library of Congress Report – Malta, at 3 (citing Civil Code, cap. 16).

[18]

Law Library of Congress Report – Malta, at 3 (citing Civil Code, cap. 16, art. 239).

[19]

Law Library of Congress Report – Malta, at 3 (citing Civil Code, cap. 16, art. 239).

[20]

Law Library of Congress Report – Malta, at 3 (citing Marriage Act, art. 18).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505830200
PR 05830.200 - Malta - 10/10/2023
Batch run: 10/10/2023
Rev:10/10/2023