Select Page

M21-1, Part III, Subpart iii, Chapter 5, Section B – Establishing the Validity of a Marriage for Department of Veterans Affairs (VA) Purposes

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3
4
5
6
7

 

1.  Requirements for Establishing the Validity of a Marriage


Introduction

This topic contains information on the requirements for establishing the validity of a marriage, including


Change Date

January 20, 2016

III.iii.5.B.1.a.  What Constitutes a Valid Marriage for VA Purposes

Before paying benefits for a Veteran’s spouse or to a Veteran’s surviving spouse, determine whether the marriage between the Veteran and his/her spouse is valid for Department of Veterans Affairs (VA) purposes.
A marriage is valid for VA purposes if the marriage was valid under the law of the locality where the parties to the marriage resided
  • at the time of marriage, or
  • when the claimant filed a valid claim (or became eligible for benefits, if eligibility arose after the date of claim).

Note:  If the legal requirements for a marriage in the locality where the parties to the marriage resided are unknown, use an internet search engine to search for a government-sponsored web site that lists the legal requirements.

References:


III.iii.5.B.1.b.  Who Is Free to Marry

In all jurisdictions in the U.S. and most other places in the world, a marriage cannot be contracted if either party to the marriage is already married.
The fact that a marriage is “legal” always implies a finding that the parties to the marriage were free to marry at the time of the alleged marriage.  If either party was married previously, the current marriage is invalid unless the prior marriage was
  • terminated by
    • death
    • divorce, or
    • annulment, or
  • determined to be void under State law.
Note:  State court evidence rules regarding presumptions of the validity of the most recent marriage may not be used to establish the validity of a current marriage for VA purposes if there is evidence of a valid, prior marriage that is undissolved.
Reference:  For information on what VA requires to prove that a prior marriage was terminated by death, divorce or annulment, see M21-1, Part III, Subpart iii, 5.B.4and 5.

III.iii.5.B.1.c.  Deeming a Marriage Valid When Determining Entitlement to Survivors Benefits

When determining entitlement to survivors benefits, it is possible to “deem valid” a marriage for VA purposes even though the marriage is completely invalid under the law of the jurisdiction where the alleged marriage occurred.
Reference:  For more information on deemed-valid marriages, see M21-1, Part III, Subpart iii, 5.E.7.

 

2.  Acceptable Proof That a Marriage Is Valid


Introduction

This topic contains information on what VA considers acceptable proof that a marriage is valid, including


Change Date

October 28, 2016

III.iii.5.B.2.a.  Using Entries a Claimant Makes on a Prescribed Form as Proof of Marriage

Before VA will consider recognizing a marital relationship as valid for the purpose of establishing entitlement to VA benefits, a claimant must complete, sign, and submit one of the forms listed in M21-1, Part III, Subpart ii, 2.B.1.b.  The form the claimant must use depends on the reason the claimant is asking VA to recognize the marital relationship.
  • VA accepts as proof of marriage, the entries a claimant makes on the appropriate VA form, as long as the claimant signed the form.  VA then considers the other entries the claimant made on the form to determine whether the marriage is valid for the purpose of establishing entitlement to VA benefits.
  • Except as noted in M21-1, Part III, Subpart iii, 5.B.2.b, VA does notrequire documentary evidence of marriage to support the entries a claimant makes on a VA form.
Notes:
Reference:  For more information on processing an incomplete form the claimant submits for the purpose of adding a dependent to his or her award, see M21-1, Part III, Subpart iii, 5.A.4.b.

III.iii.5.B.2.b.  Determining Whether Documentary Evidence of Marriage is Required

38 CFR 3.204(a)(2) requires a claimant to submit the documentary evidence of marriage described in 38 CFR 3.205 through 3.211 only if
  • the claimant does not reside within a State (as defined in 38 CFR 3.1(i))
  • VA Form 21-686c (or other prescribed form listed in the bottom row of the table in M21-1, Part III, Subpart ii, 2.B.1.b) contains entries that conflict with one another or raise a question regarding the validity of the marriage that cannot be resolved through
    • telephone contact with the claimant, or (if telephone contact cannot be made)
    • review of documentary evidence already of record, or
  • there is reasonable indication of fraud or misrepresentation on the claimant’s part.

Notes:

  • The forms listed in the bottom row of the table in M21-1, Part III, Subpart ii, 2.B.1.b do not ask claimants to identify for VA the location where they resided when the marriage took place or when they filed a claim to add a spouse to their award.  The absence of this information alone does nottrigger the requirement for documentary evidence of a marriage.
  • If a claimant identifies a U.S. city as his/her home of record but provides VA with an army post office or fleet post office mailing address, it is generally acceptable to assume the claimant resides “within a State” for the purpose of this block.
References:  For more information on

III.iii.5.B.2.c.  Primary Evidence of a Valid Marriage

Primary evidence of a valid marriage consists of a copy or abstract of the public record of a marriage, or a copy of the church record of marriage, containing sufficient data to identify the
  • parties to the marriage
  • date and place (city and State, county and State, or (if the marriage took place in a foreign country) city and country) of the marriage, and
  • number of prior marriages, if shown on the official record.

III.iii.5.B.2.d.  Secondary Evidence of a Valid Marriage

If primary evidence of a valid marriage is unavailable, the following evidence listed in the order of preference may be used instead
  • an official report from the Veteran’s service department as to a marriage that occurred while the Veteran was in service
  • an affidavit of the clergyman or magistrate who officiated in the marriage ceremony
  • the original certificate of marriage, if VA is satisfied that it is genuine and free from alteration
  • affidavits or certified statements signed by two or more witnesses to the marriage ceremony, or
  • any other secondary evidence that reasonably supports a belief by the adjudicating activity that a valid marriage actually occurred.
Note:  Inform claimants that VA cannot return original documents; encourage them to submit certified copies in lieu of original documents.
Reference:  For more information on secondary evidence in jurisdictions where marriages other than by ceremony are recognized, see

 

3.  Undertaking Development to Establish the Validity of a Marriage


Change Date

January 20, 2016

III.iii.5.B.3.a.  Undertaking Development to Establish the Validity of a Marriage

When required under the provisions of 38 CFR 3.204(a)(2) (as explained in M21-1, Part III, Subpart iii, 5.B.2.b), undertake development to obtain the
Note:  When requesting evidence from a claimant, follow the instructions in M21-1, Part III, Subpart iii, 1.B.1 and 2.
Important:
  • To avoid claims-processing delays, attempt to request evidence of a valid marriage by telephone.
  • Follow the instructions in M21-1, Part III, Subpart iii, 1.B.1.e for documenting successful and unsuccessful attempts to contact a claimant by telephone.
  • Send a letter requesting evidence of a valid marriage if
    • the claimant cannot be reached by telephone, or
    • contact by telephone is made with the claimant but he/she is unable to provide the evidence (by fax, e-mail, or in person) within 24 hours.
References:  For more information about

 

4.  Termination of Marriage Through Annulment or Divorce


Introduction

This topic contains information about marriages that are terminated through annulment or divorce, including


Change Date

April 26, 2016

III.iii.5.B.4.a.  Determining Whether Documentary Evidence of Termination of a Marriage Is Necessary

Documentary evidence of the termination of prior marriages is not routinely required.
VA accepts the entries a claimant makes on a completed and signed VA Form 21-686c (or other prescribed form listed in the last row of the table in M21-1, Part III, Subpart ii, 2.B.1.b) as proof of termination of a marriage in the absence of contradictory evidence of record (to include entries the claimant makes on the form) that cannot be resolved through
  • reconciliation with other evidence of record, or
  • telephone contact with the claimant.
Important:
  • If a Veteran, spouse, or surviving spouse has had multiple marriages, request documentary evidence of termination of only those marriages for which contradictory evidence or information exists.
  • RO employees should not routinely search through a claims folder for the sole purpose of ensuring it contains no contradictory evidence.  A review of other evidence contained in the claims folder should only be undertaken
    • if there is reason to suspect the veracity of the information the claimant provided on the prescribed form, or
    • to resolve discrepancies in
      • entries the claimant made on the form, or
      • evidence the claimant submitted.
  • VA does not require completion of a specific form or submission of documentary evidence to remove a dependent from a beneficiary’s award.
References:

III.iii.5.B.4.b.  Requesting Documentary Evidence of Termination of a Marriage

Follow the instructions in the table below if documentary evidence of termination of a marriage is necessary.
If a claimant indicates marriage was terminated by …
Then ask the claimant to submit …
annulment
a copy or abstract of the annulment decree.
divorce
a certified copy or abstract of the final divorce decree.
Notes:
  • Some jurisdictions employ a two-step process for dissolving a marriage.  First, an interlocutory decree of divorce is issued.  Then, after passage of a specified period of time, a final divorce decree is issued.
    • The parties in a divorce proceeding remain married until a final divorce decree is issued.
    • An interlocutory decree of divorce does not dissolve a marriage.  If a claimant submits an interlocutory decree of divorce as proof of termination of a marriage, ask him/her to submit a final divorce decree.
  • Some States require a “cooling off” period between the date the divorce decree is issued and the actual date the final divorce occurs or takes effect.  As provided in 38 CFR 3.206, the standards in the jurisdiction in which a divorce decree is issued are controlling for determining the effective date of a divorce.
Example:  A divorce in Puerto Rico is not final until 30 days after the divorce decree is issued.
Reference:  For more information on considering State laws when deciding issues involving dependents, seeM21-1, Part III, Subpart iii, 5.A.1.l.
Notes:
  • Send a letter requesting the evidence described in the table above if
    • attempts to request the evidence by telephone are unsuccessful, or
    • contact by telephone is made with the claimant but he/she is unable to provide the evidence (by fax, e-mail, or in person) within 24 hours.
  • Follow the instructions in M21-1, Part III, Subpart iii, 1.B.1.e for documenting successful and unsuccessful attempts to contact a claimant by telephone.

References:  For more information about requesting evidence using


III.iii.5.B.4.c.  Additional Actions That Might Be Necessary After Requesting Documentary Evidence of Termination of a Marriage

The table below describes additional actions that might be necessary after requesting documentary evidence of termination of a marriage from a claimant.
If …
Then …
a claimant is unable to locate the documentary evidence VA requested to prove termination of a prior marriage
attempt to locate the evidence on the claimant’s behalf.
References:  For more information about
  • a claimant alleges termination of a prior marriage by divorce, and
  • documentary evidence of the divorce cannot be located
instruct the claimant to obtain a new divorce decree.
Note:  A claimant may initiate divorce proceedings even if the location of the other party to the divorce is unknown.
  • a surviving spouse is filing a claim for death benefits, and
  • the surviving spouse is unable to prove termination of one or more of the deceased Veteran’s prior marriages
undertake development to establish a deemed-valid marriage, according to the instructions inM21-1, Part III, Subpart iii, 5.E.7.
Reference:  For information about terminating a common-law marriage through divorce, see M21-1, Part III, Subpart iii, 5.C.1.c.

5.  Termination of Marriage Through Death


Introduction

This topic contains information about marriages that are terminated through death, including


Change Date

January 20, 2016

III.iii.5.B.5.a.  When to Request Evidence of Death

Request evidence to establish the termination of a marriage through the death of a spouse when

  • a claimant’s entries on VA Form 21-686c (or other prescribed form listed in the last row of the table in M21-1, Part III, Subpart ii, 2.B.1.b) conflict with other evidence or information of record
  • the VA Form 21-686c (or other prescribed form) contains questionable or discrepant information that cannot be resolved through
    • telephone contact with the claimant, or
    • review of other evidence of record, or
  • there is a reasonable indication of fraud or misrepresentation.

Notes:

  • If evidence to establish termination of a marriage through death is necessary, attempt to request it through telephone contact with the claimant.  Request the evidence by letter if
    • the claimant cannot be reached by telephone, or
    • contact by telephone is made with the claimant but he/she is unable to provide the evidence (by fax, e-mail, or in person) within 24 hours.
  • Follow the instructions in M21-1, Part III, Subpart iii, 1.B.1.e for documenting successful and unsuccessful attempts to contact a claimant by telephone.
  • VA does not require completion of a specific form or submission of documentary evidence to remove a dependent from a beneficiary’s award.

References:


III.iii.5.B.5.b.  Primary Evidence of Death

Either of the following represent primary evidence of an individual’s death:
  • an official death certificate, or
  • a copy of a coroner’s report of death or a verdict of a coroner’s jury.
The table below identifies other forms of primary evidence that are acceptable for establishing the fact of death.
If …
Then consider as primary evidence of death  …
death occurred in a hospital or institution under the control of the U.S. government
  • a death certificate signed by a medical officer, or
  • a clinical summary or other report that
    • is signed by a medical officer, and
    • shows the fact and date of death.
the deceased individual was, at the time of death,
  • on the retired list
  • in an inactive duty status, or
  • on active duty
an official report of death from the Secretary of the department concerned.
death occurred abroad
a U.S. consular report of death bearing the signature and seal of the U.S. consul.
  • the deceased individual was, at the time of death, a civilian employee of a U.S. government agency, and
  • death occurred abroad
an official report of death from the head of the department concerned.
Important:  When primary evidence cannot be furnished, the claimant mustprovide the reason why.

III.iii.5.B.5.c.  Secondary Evidence of Death

Once a claimant provides the reason for the lack of primary evidence of death, the fact of death may be established on the basis of the following secondary evidence:
  • a finding of the fact of death made by another Federal agency in the absence of evidence to the contrary, or
  • affidavits from persons who have
    • personal knowledge of the fact of death, and
    • viewed the body and know it to be the body of the person whose death is being established.
Note:  Affidavits must set forth all the facts and circumstances concerning the death such as the date, place, time, and cause thereof.

III.iii.5.B.5.d.  Circumstances Under Which VA May Make a Finding of Death

In the absence of the primary or secondary evidence outlined in M21-1, Part III, Subpart iii, 5.B.5.b and c, VA may make a finding of death if the fact of death is shown by a preponderance of competent evidence.
Important:  An administrative decision is required.
Reference:  For more information on preparing an administrative decision regarding a finding of death, see M21-1, Part III, Subpart v, 1.G.

 

6.  Determining Whether a Marriage Is Void


Introduction

This topic contains information on determining whether a marriage is void, including


Change Date

October 28, 2016

III.iii.5.B.6.a.  Legally Defective Marriages

Certain “marriages” have no legal effect even though

  • a marriage ceremony was held, and
  • the marriage was registered with local government authorities.

Such marriages are legally void because the parties to them did not satisfy the legal requirements for entering into a marriage at the time the alleged marriage took place.


III.iii.5.B.6.b.  Definition:  Void Marriage

Not all legally defective marriages are void.  For example, in most jurisdictions, marriage by underage individuals is not automatically void.
Generally, a marriage is considered void only if the defect is fundamental.  Grounds for voiding a marriage vary from State to State, but in most States a marriage is void if
  • either party to the marriage is still married to someone else when the marriage in question takes place, or
  •  the parties to the marriage are closely related.

III.iii.5.B.6.c.  Effect of a Determination That a Marriage Is Void

Upon recognition of a marriage as void, there is no need to dissolve it through divorce or annulment before entering into a subsequent marriage.  Likewise, a remarried surviving spouse whose subsequent marriage is annulled or declared void may reestablish entitlement to survivors benefits as a surviving spouse.

III.iii.5.B.6.d.  Determining Whether a Marriage Is Void

Follow the steps in the table below if a claimant alleges that a marriage was not terminated because it was void from the outset.
Step
Action
1
Request the facts surrounding the alleged void marriage.
2
If possible, collect certified statements from individuals with personal knowledge of the circumstances surrounding the alleged void marriage.
3
Submit the case to Regional Counsel for a legal opinion as to whether or not the alleged marriage is void.
Note:  The Regional Counsel opinion constitutes VA’s decision on the issue.  No administrative decision is required.
Reference:  For more information about submitting a request for an opinion to Regional Counsel, see M21-1, Part III, Subpart iii, 5.A.3.e.

III.iii.5.B.6.e.  Effective Date for Removing a Spouse When a Court Declares a Marriage Void

If a court declares a Veteran’s marriage to his/her spouse void, and VA has been paying the Veteran benefits for the spouse, follow the instructions in M21-1, Part III, Subpart iii, 5.L.4 for removing the spouse from the Veteran’s award.
Important:
  • For the purpose of applying the instructions found in M21-1, Part III, Subpart iii, 5.L.4.b, treat
    • the voided marriage as an annulled marriage, and
    • the date the court declared the marriage void as the date of the annulment.
  • If conflicting evidence exists as to the date the court declared the marriage void, undertake development to resolve the discrepancy(ies).  If the Veteran fails to respond to VA’s request for assistance in resolving the discrepancy(ies), or if the discrepancy(ies) cannot be resolved, remove the spouse from the Veteran’s award effective the same date VA added him/her to the Veteran’s award.
  • Follow the instructions in M21-1, Part I, 2.A.2.a to determine whether it is appropriate to remove the spouse from the Veteran’s award without first issuing a notice of proposed adverse action.

 

7.  Determining Whether an Impediment to Marriage Has Been Removed


Change Date

January 20, 2016

III.iii.5.B.7.a.  Determining Whether an Impediment to Marriage Has Been Removed

Use the table below to determine whether an impediment to a marriage has been removed.
When …
And …
Then …
one or both parties to a marriage were already married to someone else at the time they attempted to enter into a marriage with one another
the earlier marriage was subsequently dissolved
the status of the later marriage is determined under State law.
the earlier marriage was notsubsequently dissolved
the impediment to marriage remains.
  • one or both parties to a marriage were already married to someone else at the time they attempted to enter into a marriage with one another, and
  • the parties resided as a married couple after dissolution of the prior marriage(s)
while residing as a married couple, they lived in a State that recognizes common-law marriages
a common-law marriage automatically arises upon dissolution of the prior marriage(s).
while residing as a married couple, they lived in a State that does not recognize common-law marriages
after taking the following actions, the station of jurisdiction must determine whether removal of the impediment (dissolution of the prior marriage(s)) renders the later marriage valid:
  • Fully develop the facts of the case.
  • If necessary, request a legal opinion from Regional Counsel on the validity of the later marriage.
Reference:  For more information about submitting a request for an opinion to Regional Counsel, see M21-1, Part III, Subpart iii, 5.A.3.e.
Historical_M21-1III_iii_5_secB_06-04-15.doc May 12, 2019 153 KB
Historical_M21-1III_iii_5_SecB_4-26-16.doc May 12, 2019 165 KB
Historical_M21-1III_iii_5_SecB_1-20-16.doc May 12, 2019 151 KB
10-28-16_Key-Changes_M21-1III_iii_5_SecB.docx May 12, 2019 62 KB
1-20-16_Key-Changes_M21-1III_iii_5_SecB.docx May 12, 2019 96 KB
Transmittal-Sheets-pt3_sp3_ch2_sec.doc May 12, 2019 97 KB
Change-June-4-2015-Transmittal-Sheet-M21-1_III_iii_5_SecB_TS.docx May 12, 2019 43 KB
Did this article answer your question?

Leave a Reply





Pin It on Pinterest

Share This