SSR 71-44: SECTION 216(h)(1)(A) (42 U.S.C.A. 416(h)(1)(A)). -- RELATIONSHIP -- VALIDITY OF FOREIGN PROXY MARRIAGE -- CUBA

20 CFR 404.1101

SSR 71-44

Where, under the law of a foreign jurisdiction, a proxy marriage is valid when performed in the presence of one of the contracting parties by a legally designated official of the district in which such party resides or is domiciled, held, such proxy marriage performed under Cuban law as in effect in 1958, will be recognized as valid by the courts of New York State even though such marriages may not validly be performed in New York.

R, the worker, born in Cuba and apparently a Cuban National, resided in the State of New York. Pursuant to a power of attorney previously executed by him while in Santa Clara, Cuba, and still in full force and effect, R was married to W on March 9, 1958. The ceremony was performed under Cuban law by a lawyer-notary in Santa Clara. W, at the time a resident of that city, was present at the ceremony together with R's representative, who was authorized to act in accordance with the aforementioned power of attorney. W subsequently moved to New York and resided with R until his death, June 3, 1967. She then filed an application as his widow for mother's insurance benefits. Since the worker died domiciled in New York, W's status as his widow, for social security purposes, must be determined by application of the law of that State.

At issue is the question whether a valid marriage existed between R and W, i.e., whether the proxy marriage performed in a foreign jurisdiction will be recognized by the courts of the State in which R was domiciled at the time of his death.

Section 216(h)(1)(A) of the Act (42 U.S.C.A. 416(h)(1)(A)) provides in pertinent part as follows:

As applicant is the * * * widow of a[n] * * * insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled * * *, would find that such applicant and such insured individual were validly married * * * at the time he died. * * *

Although proxy marriages may not validly be performed in New York State, the courts of New York will recognize the validity of such marriages performed in a jurisdiction where such marriages are permitted, Fernandes v. Fernandes, 87 N.Y.S.2d 707 (App. Div. 2d Dept. 1949); Ferraro v. Ferraro, 77 N.Y.S. 2d 246 (Dom. Rel. Ct. Kings co. 1948).

With respect to the law of Cuba, the jurisdiction in which the marriage in issue was performed, the Library of Congress has advised that the law governing marriage in Cuba in 1958, Article 87 of the Civil Code of 1889 as amended, provided:

Marriage shall be celebrated in person or through a proxy, to whom a special power has been granted; but the presence of the contracting party who is domiciled or resides in the district of the judge, who is to perform the marriage, shall always be required.

The name of the person with whom the marriage is to be celebrated shall be mentioned in the special power of attorney, and the marriage shall be valid if, before its celebration, the person so authorized has not been notified in an authentic manner of the revocation of the power. (Emphasis supplied.)

Article 138 of the Notarial Code of 1929 as amended, provided:

Notaries may celebrate civil marriages in the same manner as the Municipal Judges * * *.

Since the above described marriage satisfies the requirements of the Cuban law in effect at the time of its performance, it would be considered valid by the courts of New York. Accordingly, it is held that W is the widow of R and entitled to mother's insurance benefits.

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