TN 12 (02-18)

A. PR 15-115 Validity of Civil Partnerships and Same-Sex Marriages Performed in England and Wales under District of Columbia Law — Life Case

Date: April 29, 2015

1. Syllabus

The claimant and the number holder (NH) entered into a civil partnership on August XX, 2008 in L~, England. The NH continues to reside in England. Based on this union, the claimant and the NH are not validly married under Title II of the Act. However, the agency can deem the couple as married for Title II benefit purposes because the civil partnership provides the claimant the same status as a spouse of the NH under English intestacy laws.

2. Opinion

QUESTION PRESENTED

Whether P~, the claimant, and N~, the number holder (NH), who entered into a civil partnership on August XX, 2008, in L~, England are validly married for purposes of determining claimant’s entitlement to Title II benefits as the NH’s spouse under the Social Security Act (Act)? If they cannot be considered validly married, can the Agency deem the couple as married for purposes of determining claimant’s entitlement to Title II benefits as the NH’s spouse?

OPINION

No, the claimant and the NH are not validly married under Title II of the Act. However, yes, the agency can deem the couple as married for Title II benefit purposes. The civil partnership provides the claimant the same status as a spouse of the NH under English intestacy law. Thus, the agency can deem the claimant and the NH as married on this basis. Accordingly, if the claimant meets the other criteria for entitlement to spouse’s benefits, the agency should find that the claimant is entitled to spouse’s benefits on the NH’s record.

BACKGROUND

The claimant and the NH entered into a civil partnership on August XX, 2008, in L~, England. The NH continues to reside in England. On July XX, 2013, the claimant filed for Social Security benefits on the NH’s record. You requested a legal opinion regarding whether the claimant is entitled to Title II spouse’s benefits on the record of the NH.

ANALYSIS¹

To be entitled to spouse’s benefits under the Social Security Act (Act), a claimant must show, among other things, that he or she is the “husband” or “wife” of an insured NH.² See 42 U.S.C. §§ 402(b), (c), 416(a)(1); 20 C.F.R. § 404.330. As pertinent here, the Act provides two methods for a claimant to show that he or she is the husband or wife of an insured who is domiciled outside the United States.

First, a claimant is the husband or wife of such insured if, among other things, the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he or she applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. 

Second, even if a claimant was not validly married to such insured at the time he or she applied for benefits, he or she will be deemed to be the insured’s husband or wife if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he or she would have the “same status” as a husband or wife 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.

The claimant bears the burden of proving that he or she is in a valid marital relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 20 C.F.R. §§ 404.345, 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). If the insured was not domiciled in any state, the agency applies the law of the District of Columbia. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00210.006(B)(2).a.

Validity of Same-Sex Marriage Under the Law of the District of Columbia

Here, because the NH resided in England at the time the claimant applied for benefits, we apply District of Columbia law to determine whether the couple was validly married. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). As pertinent here, the District of Columbia began recognizing as valid same-sex marriages entered into in other jurisdictions beginning on July XX, 2009. ³ See Section 1287a of the Jury and Marriage Amendment Act of 2009, D.C. Code § 46-405.01 (“A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited . . . , and has not been deemed illegal . . . , shall be recognized as a marriage in the District.”). Accordingly, the recognition of same-sex marriages performed in other jurisdictions does not appear to violate a strong public policy of the District. Therefore, we next must examine the validity of same-sex marriage under the law of England and Wales.

The Claimant is not Validly Married to the NH Under English Law

The government of England and Wales introduced the Marriage (Same Sex Couples) Act 2013. ⁴ This Act came into force on March 13, 2014, and allows same-sex couples to enter into a marriage in accordance with the Marriage Act 1949, ⁵ bestowing on them the same legal rights as heterosexual couples, but preserves the Canon Law of the Church of England by not requiring Churches of England to apply the new law. ⁶ Beginning December 10, 2014, same-sex partners have the option of converting their partnerships into marriages. ^{7 8} The law providing for Civil Partnerships will continue, and there are no requirements compelling civil partners to change their partnerships into a marriage. In the claim at issue, there are no allegations or evidence that a same-sex marriage occurred between the claimant and the NH. Nor are there any allegations that the civil partnership the couple entered into was converted to a marriage. Accordingly, the couple is not validly married under English Law.

The Claimant has the Same Status as a Husband of the NH Under English Intestacy Law

If the claimant is not validly married to NH, the agency will deemed the couple to be married, 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 husband of the NH with respect to the taking of such property, if the NH were to die. See 42 U.S.C

§ 46(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). Here, the NH is domiciled in England. Accordingly, to determine whether the claimant would have the requisite status with respect to inheritance of the NH’s intestate property, we apply English law.

England and Wales enacted the law providing for civil partnerships in 2004, which entered into effect on December 5, 2005. ⁹ Entering into a civil partnership creates the same legal relationship between partners as a marriage between a husband and wife, but with the different terminology of “civil partners.” Section 71 of the Civil Partnership Act amended a number of provisions relating to wills and the administration of estates so that they apply in the same way to civil partnerships and married couples.¹⁰ If a civil partner dies intestate, the same rules apply to the surviving civil partner as would apply in marriage to a surviving spouse. ¹¹ Section 46 of the Administration of Estates Act 1925 provides that if a civil partner dies intestate without issue, the surviving civil partner inherits the residual estate absolutely. ¹²

A civil partnership becomes legal when the civil partnership registration certificate is signed by both parties. Once formed, a civil partnership only ceases upon death, dissolution, or annulment. ¹³ Civil partnerships must be registered with the Registrar General, ¹⁴ who is required by law to maintain a register of civil partnerships and any decrees of dissolution or nullity of these partnerships.¹⁵ A certificate showing proof of the civil partnership are available for a small fee after the ceremony, and copies may be obtained from the Registrar General’s Office at a later date for an additional fee. ¹⁶

Here, the claimant has presented SSA with a certified copy of an Entry of Civil Partnership, registered on August XX, 2008. The document is signed by both the claimant and the NH. In addition, the law of England and Wales provides that if a civil partner dies intestate, the same inheritance rights apply to the surviving civil partner as would apply in marriage to a surviving spouse. Based on these facts, it appears that the claimant qualifies as an individual entitled to inherit a husband’s share of the NH’s intestate property under the law of England and Wales and accordingly, the agency would deem the couple as married.

CONCLUSION

Although the claimant’s relationship with the NH would not be recognized as a valid marriage under the law of England and Wales, the claimant has the same status as a husband of the NH under the law of England and Wales. Thus, the agency can deem the couple married for Title II purposes.

Footnotes:

[1]

We note that our discussion of the law of England is based in part on an opinion we received from the Library of Congress covering the law of two countries in the United Kingdom (UK), England and Wales. This opinion does not address the law in the UK countries of Northern Ireland and Scotland.

[2]

To be eligible for spousal benefits, the claimant must also show that he or she:

(1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage;

(2) has filed an application for spousal benefits;

(3) has attained aged 62 or has in his or her care a child entitled to child’s benefits; and

(4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount. See 42 U.S.C. § 402(b)(c); 20 C.F.R. § 404.330. 

As we have not been asked to provide an opinion on whether claimant meets these additional requirements, our opinion will focus on whether the claimant and the NH are validly married or can be deemed married.

[3]

Domestic Partnerships were effective in the District on January 6, 2007. SSA can deem these domestic partnerships as marriages. See GN 00210.004.

[4]

Marriage (Same Sex Couples) 2013, c. 30, § 1, http://www.legislation.gov.uk/ukpga/2013/30/contents/enacted.

[5]

Marriage Act 1949, 12, 13 & 14 Geo. 6, c. 76, http://www.legislation.gov.uk/ukpga/Geo6/12-13-14/76/contents.

[6]

Civil Partnership Act 2004, c. 33, § 1, http://www.legislation.gov.uk/ukpga/2004/33/contents.

[7]

The Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014,

In cases where a civil partnership is converted into a marriage, the effect of the conversion is to end the civil partnership and create a resulting marriage. The marriage is “to be treated as having subsisted since the date the civil partnership was formed”

[8]

Id .

[9]

House of Commons Library, Civil Partnerships, Standard Note SN/HA/5608, Feb. 2011.

[10]

Civil Partnership Act 2004, c. 33, §71, http://www.legislation.gov.uk/ukpga/2004/33/contents.

[11]

Succession: Intestacy: Distributions (England & Wales): Surviving Spouse or Civil Partner, IHTM12121, HM REVENUE AND CUSTOMS, http://www.hmrc.gov.uk/manuals/ihtmanual/ihtm12121.htm (last visited Aug. 26, 2014).

[12]

Administration of Estates Act 1925, 15 & 16 Geo. 5, c. 23, § 46, http://www.legislation.gov.uk/ukpga/Geo5/15-16/23/contents.

[13]

Civil Partnership Act 2004, c. 33, § 1, http://www.legislation.gov.uk/ukpga/2004/33/contents.

[14]

Id. § 2.

[15]

Id. § 30.

[16]

Order a Copy of a Birth, Death or Marriage Certificate, GOV.UK, https://www.gov.uk/order-copy-birth-death-marriage-certificate (last updated Aug. 4, 2014).