TN 16 (07-13)

A. PR 13-093 Delaware Legislation Legalizing Same-Sex Marriages —

 DATE: February 26, 2013

1. SYLLABUS

The Civil Marriage Equality and Religious Freedom Act of 2013 enacted May 7, 2013 permits same-sex couples to marry in the State of Delaware beginning July 1, 2013.

The State of Delaware permits parties to a same-sex marriage to change their names based upon the marriage in the same manner as any other person changing their name by marriage.

The new legislation removes the ability to form new civil unions as of July 1, 2013, the effective date of the Act. Furthermore, on July 1, 2014, all remaining civil unions not currently subject to a proceeding for dissolution, annulment or legal separation automatically convert to marriages.

2. OPINION

Brief Summary

The Civil Marriage Equality and Religious Freedom Act of 2013, enacted on May 7, 2013, allows same-sex couples to marry in Delaware as of July 1, 2013. Parties to a same-sex marriage are given the same right to change their name based upon the marriage under common-law as opposite-sex couples. Parties to a preexisting civil union in Delaware need not dissolve their civil union and have one year to choose to convert their civil union to a marriage with or without another ceremony. However, if the couple does not convert their civil union to a marriage by July 1, 2014, the civil union will automatically convert to a marriage. Upon the effective date of the Act, July 1, 2013, civil unions cannot be formed in Delaware.

Questions Presented

We are providing this advice in accordance with the Program Operations Manual System (POMS) RM 10212.035, Evidence of a Name Change based on a U.S. Same-Sex Marriage. ¹ Section D of RM 10212.035 provides that when a State legalizes same-sex marriages, an opinion from the Regional Chief Counsel should be obtained regarding the following information:

(1) the date the State will begin issuing marriage licenses and certificates to same-sex couples;

(2) whether the State permits parties to the same-sex marriage to change their names based on the marriage;

(3) whether a prior entered civil union or domestic partnership must be dissolved before entering into a same-sex marriage; and

(4) any change to the status of a prior or new civil union or domestic partnership entered into in the same State.

Discussion

1. The date Delaware will begin issuing marriage licenses and certificates to same-sex couples.

The Civil Marriage Equality and Religious Freedom Act of 2013 (the “Act”), enacted on May 7, 2013, allows same-sex couples to marry in Delaware as of July 1, 2013. Delaware statute requires a 24-hour waiting period between the issuance of a marriage license and the marriage ceremony. Del. Code Ann. Tit 13, § 107(a) (West 2013). Thomas, Chief Deputy Clerk of the Peace of New Castle County, Delaware advised that although marriage licenses will not be issued to same-sex couples until July 1, 2013, the 24-hour waiting period will be waived as permitted in Del. Code Ann. Tit 13, § 107(d)(1) (West 2013), to allow same-sex marriages to take place on that date.

2. Whether Delaware permits parties to the same-sex marriage to change their names based on the marriage.

The Act provides for the equal application of all laws of the state of Delaware relating to marriage, married spouses or their children to same-gender or different gender married spouses and their children. Although Delaware has a statutory procedure for a legal name change by court order under Del. Code Ann. Tit.10, §5901 (West 2013), under common law, these formal procedures are not required for a name change following a marriage. See Degerberg v. McCormick, 40 Del. Ch. 471, 184 A.2d 468 (1962) (stating that statutes which authorize a proceeding to change a name by court order are universally held not to affect the common law right to a name change). In addition, Thomas confirmed that parties to a same-sex marriage are able to change their names in the same manner as parties to an opposite-sex marriage without requesting a court-ordered name change if the new name is the last name of either party or a hyphenated combination of the last name of both parties. However, Thomas also advised that in the event that the parties to a same-sex marriage are seeking to change their last name to an entirely different last name, then the parties must follow the statutory procedures to obtain a court order.

Thomas explained that for a name change following marriage, the party desiring the name change must change their name with the Social Security Administration and the Delaware Division of Motor Vehicles (DMV). The website for the Delaware DMV indicates that to change a name due to marriage on a driver’s license or ID card, the party seeking a name change must, within 30 days, appear in person with his or her old driver’s license and the marriage certificate. http://www.dmv.de.gov/services/driver_services/faqs/dr_faq_idchanges.shtml (last visited Jun. 4, 2013). However, because the Delaware DMV uses Social Security Number online verification, the name change must be first processed by SSA or the DMV will not issue a new license or ID card. Id.

3. Whether a previously entered into same-sex marriage, civil union, or domestic partnership between the parties must be dissolved before the parties can enter into a same-sex marriage in Delaware.

The Act allows for parties to a civil union that is not the subject of a pending proceeding for dissolution, annulment or legal separation to convert their civil union to a marriage prior to July 1, 2014 by application for a marriage license to the clerk of the peace of the county in which their civil union license was issued, with or without further solemnization of such marriage. Furthermore, on July 1, 2014, all remaining civil unions will automatically convert to marriages if they are not currently subject to a proceeding for dissolution, annulment or legal separation. Accordingly, the parties do not need to dissolve their existing civil union prior to entering into a same-sex marriage. Likewise, if the parties have previously entered into a civil union in another jurisdiction, they will not be required to dissolve this union prior to marrying in Delaware. Although Delaware does not have same-sex domestic partnerships, Thomas confirmed that if the parties entered into a domestic partnership in another jurisdiction, they need not dissolve this partnership before entering into a same-sex marriage in Delaware. Finally, although Delaware will recognize same-sex marriages solemnized outside of Delaware as marriages, in the event that same sex couples previously married in another state seek to marry the same partner again in Delaware, Thomas confirmed that such couples will be permitted to marry in Delaware without having to dissolve their previous out-of-state union.

Nevertheless, under the Act, parties applying for a marriage license must provide the “date and place of previous marriages, civil unions, domestic partnerships or other substantially similar legal unions, and termination of previous marriages, civil unions, domestic partnerships or other substantially similar legal unions.” Therefore, if parties want to enter into a marriage with a person other than a person with whom they have already entered into a marriage, civil union or domestic partnership, they must first dissolve this union. Thomas confirmed that if one of the parties is already a party to a same-sex marriage, civil union or domestic partnership with another person, the previous union must be dissolved before entering into a same-sex marriage in Delaware.

4. Whether there is any change to the status in prior or new civil unions entered into in Delaware.

As of July 1, 2013, the effective date of the Act, no new civil unions will be formed in Delaware. Furthermore, on July 1, 2014, all remaining civil unions not currently subject to a proceeding for dissolution, annulment or legal separation will automatically convert to marriages. The effective date of such a marriage shall be deemed to be the date of solemnization of the original civil union.

Notably, the Act also provides that both parties to legal unions (other than marriages) between two persons of the same gender established in another jurisdiction, will be afforded the same rights, benefits and protections, and will be subject to the same responsibilities, obligations, and duties as a marriage for the purposes of Delaware law. However, for such recognition to apply, the union must be validly formed in such other jurisdiction, the parties to the union must meet the eligibility requirements to enter into a marriage in the state of Delaware, and the union must afford and impose on the parties substantially the same rights, benefits, protections, responsibilities, obligations, and duties of marriage.

Nora R. Koch

Acting Regional Chief Counsel
By: _______________________
Tara A. Czekaj
Assistant Regional Counsel

Footnotes:

[1]

We note that the May 23, 2013 request from your office only seeks a legal opinion on the issue of whether a name change can be granted on the basis of a same-sex marriage in the state of Delaware. However, we have also provided the additional information appropriate to the legalization of same-sex marriages as directed in the POMS.