TN 8 (02-18)

A. PR 15-028 T~ – Entitlement to Auxiliary Spouse Benefits on the Account of Number Holder E~ – Validity under New York State Law of Same-Sex Marriage Performed in a Foreign Jurisdiction

Date: November 19, 2014

1. Syllabus

New York State recognizes same-sex marriages validly entered into in foreign jurisdictions. South Africa has statutorily recognized same-sex marriages since November 30, 2006. The claimant and the NH were lawfully married under South African law in C~ T~, South Africa, in August 2007. Therefore, under the specific facts of this claim, the South African marriage would be recognized by the state of New York. The claimant’s marriage to the number holder is valid under New York law, and the claimant is entitled to benefits on the NH’s account, assuming that the claimant has satisfied other statutory and regulatory requirements for such benefits.

2. Opinion

QUESTION PRESENTED

Would New York State recognize the same-sex South African marriage of T~ (claimant) and E~, the number holder (NH), and would the claimant be entitled to auxiliary spouse benefits on the NH’s record?

OPINION

New York State, the NH’s current domicile, recognizes same-sex marriages validly entered into in foreign jurisdictions. South Africa has statutorily recognized same-sex marriages since November 30, 2006. The claimant and the NH were lawfully married under South African law in C~ T~, South Africa, on August XX, 2007. Therefore, under the specific facts of this claim, the South African marriage would be recognized by New York. Accordingly, under the Social Security Act (Act) the claimant is the NH’s spouse and thus entitled to auxiliary spouse benefits on the record of the NH, assuming that the claimant has satisfied other statutory and regulatory requirements for such benefits.

BACKGROUND

The claimant and the NH were married in C~ T~, South Africa. The Marriage Registration Extract (extract), dated September XX, 2007, and stamped “Unabridged Civil Union,” identifies the couple’s “Civil Union Type” as “Marriage.” The extract lists August XX, 2007 as the “Marriage Date” and the date the “[m]arriage was solemnized.”

The NH has been receiving Social Security Retirement benefits since October 2012. The claimant filed for auxiliary spousal benefits on the record of NH on December XX, 2013. The NH lived in New York at the time the application was filed. He has not since changed his domicile.

ANALYSIS

A. Social Security Act and Regulations

An insured wage earner’s spouse is eligible to receive old-age benefits as an auxiliary beneficiary if, among other requirements and as relevant here, the spousal relationship has lasted at least one year. See 42 U.S.C. §§ 402(b) and (c); 416(b), 416(h)(1)(A); 20 C.F.R. § 404.330(a). An individual is the spouse of the insured if the courts of the state in which the insured is domiciled would find that the applicant and the insured were validly married at the time the application was filed. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. The insured’s legal domicile is the state where the insured had a permanent home at the time of the application for spouse’s benefits. See 20 C.F.R. §§ 404.303, 404.345. Here, New York was the NH’s domicile at the time of the application and the NH continues to reside at the New York address listed in the application. Therefore, we look to New York law to determine if the claimant and the NH are validly married. Our specific inquiry focuses on whether the South African same-sex marriage is valid under New York law.

B. New York State Law Regarding Same-Sex Marriage

New York State long defined marriage as the voluntary union of one man and one woman as husband and wife. See Hernandez v. Robles, 855 N.E.2d 1, 6, 9-12 (N.Y. 2006) (holding constitutional “New York’s statutory law [that] clearly limits marriage to opposite-sex couples”). Same-sex marriage has only been legal in New York State since the Marriage Equality Act took effect on July 24, 2011, N.Y. Dom. Rel. Law § 10-a (McKinney 2013).

However, New York law recognized same-sex marriages lawfully solemnized outside of the state, including in foreign countries, prior to the enactment of the Marriage Equality Act. On February 1, 2008, a New York appellate court held that New York would recognize same-sex marriages validly entered into in other jurisdictions, including the July 2004 Ontario, Canada same-sex marriage at issue before the court. Martinez v. County of Monroe, 850 N.Y.S.2d 740, 742 (4th Dept. 2008), leave to appeal denied, 859 N.Y.S. 2d 617, 889 N.E.2d 496 (2008).¹ amicus brief in the District Court for the Southern District of New York, reinforcing its position that, “New York has long recognized as valid same-sex marriages that were solemnized under the laws of other States or nations….” Brief for the State of New York as Amicus Curiae Supporting Plaintiff, Windsor v. U.S., 797 F. Supp. 2d 320 (2011), 2011 WL 3098311. See also, U.S. v. Windsor, ___ U.S. ___, 133 S.Ct. 2675, 2683 (2013) (“New York deems [Windsor’s] Ontario marriage to be a valid one.”).

The decision in Martinez, considered together with the 2011 amicus brief filed by the State of New York support the conclusion that, since at least February 1, 2008, New York has recognized same-sex marriages validly entered into in other jurisdictions. ² Thus, we must next determine if the South African marriage was validly entered into.

C. South African Law Regarding Same-Sex Marriage

The Civil Union Act, which went into effect on November 30, 2006, legalized same-sex marriages in South Africa. Civil Union Act 17 of 2006, Government Gazette [GG] No. 29441 (Nov. 17, 2006), (available at:http://www.gov.za/documents/download.php?f=67843).

In December 2005, the South Africa Constitutional Court held that the country’s marriage laws violated its constitution by failing to afford same-sex couples the same rights accorded to opposite-sex couples. Minister of Home Affairs and Another v. Fourie and Another 2006 (3) BCLR 355, 398–399 (CC), (http://www.saflii.org/za/cases/ZACC/2005/19.htmlavailable at). The Constitutional Court provided the South Africa Parliament one year to rectify the statutory deficiencies, resulting in the enactment of the Civil Union Act. Id.

The Civil Union Act, the common law, the Marriage Act 25 of 1961, and the Recognition of Customary Marriages Act 120 of 1998 govern marriages under South African law. Jacqueline H & Anneliese R, Family and Succession Law in South Africa, 81 (2012). The Civil Union Act permits same-sex and opposite-sex couples to enter into a civil union. The civil union can be registered as either a marriage or a civil partnership according to the couple’s preference (Civil Union Act 17 of 2006 §§ 1, 2, 11); the officer presiding over the civil union must ask the couple their choice and record the selection on the marriage certificate. Id. §§ 11 &12; Civil Union Regulations, 2006, § 8, Government Notice No. 29439 (Nov. 29, 2006), (available at:

o.za/assets/articles/attachments/ 03721_regulation1206.pdf

http://us-cdn.creamermedia.c.)

A civil union, whether registered as a marriage or as a civil partnership, has the same legal ramifications, including with respect to intestate succession, as the other forms of marriage in South Africa – civil marriage occurring under common law or the Marriage Act, and customary marriage occurring under common law or the Customary Marriages Act. ³

CONCLUSION

The claimant’s marriage to the number holder is valid under New York law, and the claimant is entitled to benefits on the NH’s account, assuming that the claimant has satisfied other statutory and regulatory requirements for such benefits.

Footnotes:

[1]

Although not a holding of New York State’s top court, Martinez applies state-wide. See Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918, 919-20 (1984) (noting that “[t]he Appellate Division is a single statewide court divided into departments for administrative convenience and, therefore, the doctrine ofstare decisis requires trial courts in [one department of the Appellate Division] to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division of another department pronounces a contrary rule.”).

[2]

In Martinez, the court noted that “[f]or well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception:”

(1) marriages prohibited by “positive law” enacted by the legislature, and

(2) marriages prohibited by “natural law”, such as polygamy or incest. M, 850 N.Y.S. 2d at 742 (citations and internal quotations omitted).

The court concluded that same-sex marriage did not “fall within either of the two exceptions to the marriage-recognition rule.” Id.The positive law exception did not apply because the New York legislature had not enacted legislation prohibiting recognition of foreign same-sex marriages; the natural law exception did not apply because the marriage was not polygamous, incestuous, or “‘offensive to the public sense of morality to a degree regarded generally with abhorrence.’” Id. at 743 (citation omitted).

[3]

A customary marriage is one that is in accordance with the customs of the indigenous peoples of South Africa. Recognition of Customary Marriages Act 120 of 1998 § 1 (available at: http://www.justice.gov.za/legislation/acts/1998-120.pdf).

Civil Union Act 17 of 2006 § 13; Jacqueline H~ & Anneliese R~,Family and Succession Law in South Africa, 81, 82, 201 (3d ed. 2010).

Here, the claimant and the NH entered into a valid same-sex marriage in South Africa on August XX, 2007. As evidenced by the “Civil Union” stamp at the top of the submitted extract and the description of “Civil Union Type” as “Marriage,” the claimant and the NH married under the Civil Union Act. Under the laws of New York State, where claimant is domiciled, this marriage would be recognized as valid since at least February 1, 2008. See Godfrey v. Spano, 892 N.Y.S. 2d 272, 275 n.1 (N.Y. 2009) (recognizing that “same-sex couples may legally marry in … South Africa”). Accordingly, the claimant’s marriage to the NH is valid under the Act for purposes of determining the claimant’s entitlement to auxiliary spouse’s benefits on the NH’s record.