Overview
In this Section |
This section contains the following topics:
|
1. Common Law Marriage Requirements
Change Date |
March 18, 2015 |
III.iii.5.C.1.a. How a Common Law Marriage Is Contracted |
In some jurisdictions it is possible to contract a marriage without a ceremony and without registration of the marriage.
Common law marriages are entered into by agreement of the parties and do not require a formal ceremony.
Note: The Department of Veterans Affairs (VA) recognizes common law marriages between individuals of the same sex if the marriage was established in a jurisdiction that recognizes common law marriages.
References:
|
III.iii.5.C.1.d. Elements Required When Establishing a Common Law Marriage |
The legal requirements for establishing a common law marriage vary from jurisdiction to jurisdiction. Per Burden v. Shinseki, 727 F.3d 1161 (Fed. Cir. 2013), VA must use the evidentiary standard of the state in which a common law marriage took place in order to determine the validity of a common law marriage.
Typically, all of the elements listed below must be present before a common law marriage may be established.
Reference: For the procedure for developing for evidence of a common law marriage, see M21-1, Part III, Subpart iii, 5.C.2.b.
|
III.iii.5.C.1.e. Establishing That Parties Held Themselves Out to the Public as Married |
Establishing that the parties held themselves out to the public as married is probably the most important element in the development process.
This may be established by
Reference: For more information about evidence that may prove parties held themselves out to the public as married, see M21-1, Part III, Subpart iii, 5.C.1.fbelow.
|
2. Development to Establish a Common Law Marriage
Introduction |
This topic contains information on development to establish common law marriages, including |
Change Date |
November 6, 2015 |
III.iii.5.C.2.a. When to Undertake Development to Establish a Common Law Marriage |
Develop to establish a common law marriage if the claimant
Reference: For information, on which states recognize common law marriages, see M21-1, Part III, Subpart, iii, 5.C.3. |
III.iii.5.C.2.b. How to Develop for Evidence of a Common Law Marriage |
Use the table below to develop for common law marriage.
Notes: Upon receipt of birth certificates, confirm that the names of both parties of the claimed common law marriage are on each birth certificate.
Reference: For information on development procedures in
|
3. Validity of Common Law Marriages By State
Change Date |
February 8, 2017 |
4. Validity of Common Law Marriages Outside the U.S.
Change Date |
March 18, 2015 |
III.iii.5.C.4.a. Determining Validity of Common Law Marriages Outside the U.S. |
Follow the steps below to determine the validity of common law marriages outside the U.S.
|
5. Establishing a Common Law Marriage for a Claimant Not Living in a State Recognizing Common Law Marriages
Introduction |
This topic contains information on how to establish a common law marriage for a claimant not living in a jurisdiction recognizing common law marriages, including |
Change Date |
February 19, 2019 |
III.iii.5.C.5.a. Action to Take When Parties Live in Jurisdictions Not Recognizing Common Law Marriages |
Follow the steps in the table below if the parties to a claimed common law marriage have lived only in jurisdictions that
|
III.iii.5.C.5.b. Deeming a Surviving Spouse’s Common Law Marriage Valid if the State Doesn’t Recognize Common Law Marriages |
In VAOPGCPREC 58-1991, the General Counsel held that lack of residence in a jurisdiction recognizing common law marriages is not a bar to establishing a common law marriage for a surviving spouse claimant.
Rationale: The common law marriage could be “deemed valid” under 38 CFR 3.52 on the theory that the surviving spouse could have entered into the purported common law marriage without knowledge of the fact that there was an impediment to the marriage. The impediment would be the jurisdiction’s non-recognition of common law marriages.
Reference: For more information on establishing common law status for a surviving spouse who did not reside in a jurisdiction recognizing common law marriages, see M21-1, Part III, Subpart iii, 5.C.5.c.
|
III.iii.5.C.5.c. Establishing a Common Law Marriage for a Surviving Spouse Claimant |
Follow the steps in the table below to establish a common law marriage for a surviving spouse claimant who did not reside in a jurisdiction recognizing common law marriages.
|
6. Establishing a Common Law Marriage Against the Claimant’s Will
Introduction |
This topic contains information on establishing a common law marriage against the claimant’s will, including |
Change Date |
March 18, 2015 |
III.iii.5.C.6.a. Claimant’s Interest in Disavowing a Common Law Marriage |
A claimant and his or her spouse may
Important: The marriage must be established if it, in fact, exists. |
III.iii.5.C.6.b. Considering the Claimant’s Statement Refuting a Common Law Marriage |
The claimant’s statement that there is no agreement to be married is one piece of evidence to consider in determining whether a common law marriage exists.
However, the statement may be contradicted by other evidence, such as evidence that the claimant held himself or herself out publicly as the spouse of the other person.
|
III.iii.5.C.6.c. Establishing a Common Law Marriage Against the Claimant’s Will |
To determine whether a common law marriage is in force when disavowed by the claimant,
Prepare a two-signature administrative decision in accordance with the instructions in M21-1, Part III, Subpart iii, 5.C.7 to recognize or reject a common law marriage on the merits.
References: For more information on
|
7. Administrative Decision Required to Recognize or Reject a Common Law Marriage
Change Date |
February 19, 2019 |
III.iii.5.C.7.a. Preparing the Administrative Decision |
Follow the instructions in M21-1, Part III, Subpart v, 1.A.3 for preparing a two-signature administrative decision.
Notes:
|
Historical_M21-1III_iii_5_SecC_11-6-15.doc | May 12, 2019 | 169 KB |
Historical_M21-1III_iii_5_SecC_3-18-15.doc | May 12, 2019 | 171 KB |
2-8-17_Key-Changes_M21-1III_iii_5_SecC.docx | May 12, 2019 | 64 KB |
2-19-19_Key-Changes_M21-1III_iii_5_SecC.docx | May 12, 2019 | 56 KB |
11-6-15_Key-Changes_M21-1III_iii_5_SecC.docx | May 12, 2019 | 63 KB |
TRANSMITTAL-SHEET-M21-1MRIII_iii_4_.doc | May 12, 2019 | 76 KB |
Change-March-18-2015-Transmittal-Sheet-M21-1MRIII_iii_5_SecC_TS.docx | May 12, 2019 | 38 KB |
in Chapter 5 Relationship and Dependency, Part III General Claims Process, Subpart iii General Development and Dependency Issues
Related Articles