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M21-1, Part III, Subpart iii, Chapter 5, Section C – Establishing Common Law Marriages

Overview

In this Section

This section contains the following topics:

1.  Common Law Marriage Requirements


Introduction

  This topic contains information on common law marriage requirements, including


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.b.  Registration of Informal Marriages

 
Although some jurisdictions provide for registration of informal marriages, a common law marriage can usually be established without registering with any governmental entity.
A copy of the document registering the informal marriage may be accepted to establish the marriage from the date it was registered.
References:  For more information on establishing common law marriages, see

III.iii.5.C.1.c.  Terminating an Established Common Law Marriage

 
Once a common law marriage has been established in a jurisdiction recognizing common law marriages, it is a valid marriage in all respects, and is no different from a ceremonial marriage.
The marriage cannot be terminated except through
  • divorce
  • the death of one of the marriage partners, or
  • annulment.
Notes:
  • There is no such thing as a “common law divorce.”
  • A valid common law marriage established in a jurisdiction recognizing such marriages continues to be valid if the parties later move to a jurisdiction not recognizing common law marriages.

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.
Element
Description
An agreement between the parties to be married
Often this agreement is explicit, but it can be inferred from the conduct of the parties. The statement of one of the parties that there was no agreement to be married is not necessarily conclusive, especially when
  • the statement is self-serving, and
  • there is evidence that the parties held themselves out as married.
Cohabitation
The parties actually lived together for some period of time.
Holding out to the public as married
The parties represented themselves to members of the community as spouses. It is not necessary to have used the same last name.
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
  • statements of persons in the community who knew the parties as spouses, and
  • documents which show that the parties represented themselves as married.
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.

III.iii.5.C.1.f.  Evidence to Prove Parties Held Themselves Out to the Public as Married

  Evidence that may prove parties held themselves out to the public as married include

  • lease agreements
  • joint bank statements
  • utility bills
  • tax returns
  • insurance forms
  • employment records, and
  • any other document requiring the individual to indicate marital status.

III.iii.5.C.1.g.  Secondary Evidence in Jurisdictions Where Other Than Ceremonial Marriages Are Recognized

 
In jurisdictions where marriages other than by ceremony are recognized, affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all the facts and circumstances concerning the alleged marriage are required.
The facts and circumstances required include
  • the agreement between the parties at the beginning of their cohabitation
  • the period of cohabitation
  • the places and dates of residences, and
  • whether children were born as a result of the relationship.

III.iii.5.C.1.h.  Supplemental Evidence in Jurisdictions Where Other Than Ceremonial Marriages Are Recognized

  Supplement the secondary evidence with affidavits or certified statements from two or more persons who know, as the result of personal observation, the reputed relationship that existed between the parties to the alleged marriage, including

  • the periods of cohabitation
  • places of residence
  • whether the parties held themselves out publicly as spouses, and
  • whether the parties were generally accepted as such in the communities in which they lived.

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

  • alleges a common law marriage, or
  • is unable to establish a claimed ceremonial marriage and there is evidence that the parties lived together in a jurisdiction recognizing common law marriages.

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.
If the case being developed is a …
Then send the …
live case
death case
the claimant
  • VA Form 21-4170 for completion
  • two copies of VA Form 21P-4171 to be completed by two persons who know, as the result of personal observation, the relationship that existed between the parties, and
  • a request for a copy of each child’s birth certificate if children were born from the 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

III.iii.5.C.3.a.  Recognition of Common Law Marriages by State

 
Use the table below to check the validity of common law marriages by State.
State
Status of Common Law
 
State
Status of Common Law
Alabama
01/01/2017
Montana
recognized
Alaska
08/01/1917
Nebraska
08/03/1923
Arizona
10/01/1913
Nevada
03/29/1943
Arkansas
not recognized
New Hampshire
recognized only upon the death of one of the partners, per New Hampshire RSA 457:39
California
not recognized
New Jersey
12/01/1939
Colorado
recognized
New Mexico
not recognized
Connecticut
not recognized
New York
04/29/1933
Delaware
not recognized
North Carolina
not recognized
District of Columbia
recognized
North Dakota
not recognized
Florida
01/02/1968
Ohio
10/10/1991
Georgia
01/01/1997
Oklahoma
recognized
Hawaii
not recognized
Oregon
not recognized
Idaho
01/01/1996
Pennsylvania
01/01/2005
Illinois
07/01/1905
Puerto Rico
not recognized
Indiana
01/01/1958
Rhode Island
recognized
Iowa
recognized
South Carolina
recognized
Kansas
recognized
South Dakota
07/01/1959
Kentucky
not recognized
Tennessee
not recognized
Louisiana
not recognized
Texas
recognized
Maine
not recognized
Utah
recognized under limited circumstances per Utah Code Section 30-1-4.5
Maryland
not recognized
Vermont
not recognized
Massachusetts
not recognized
Virginia
not recognized
Michigan
01/01/1957
Washington
not recognized
Minnesota
04/27/1941
West Virginia
not recognized
Mississippi
04/05/1956
Wisconsin
01/01/1918
Missouri
06/20/1921
Wyoming
not recognized
Legend:  Date = Marriage recognized only if established before that date.
Example:  A common law marriage in Florida is recognized only if it was established before January 2, 1968.

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.
Step
Action
1
2
Click on the Employee Operating Instructions hyperlink.
3
Click on the Program Operations Manual System (POMS) hyperlink.
4
Click on the POMS Table of Contents hyperlink.
5
Click on the GN – General hyperlink.
6
Click on the GN003 – Evidence hyperlink.
7
Scroll down the page to locate GN00307 – Foreign Evidence
8
Click on the GN00307.255 – Common Law Marriages Outside the U.S. hyperlink.
Result:  A list of countries that recognize common law marriages is displayed.

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

  • do not currently recognize common law marriages, and
  • have not recognized common law marriages since the time of the inception of the parties’ cohabitation.
Step
Action
1
Is the claimant a surviving spouse alleging a common law marriage to the Veteran?
2
Follow the instructions in M21-1, Part III, Subpart iii, 5.C.7.

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.
Step
Action
1
  • Develop for evidence to establish the common law marriage, and
  • secure the surviving spouse’s statement as to
    • whether he/she was aware that common law marriages were not recognized in the jurisdiction where the parties resided, and
    • the reasons for this understanding.
Reference:  For  more information on the development actions to take when a common law marriage is claimed, see M21-1, Part III, Subpart iii, 5.C.2.
2
Determine, as a question of fact, whether the claimant was without knowledge of the impediment to the marriage based on
  • the statement submitted by the claimant, and
  • any other evidence of record.
3
Conduct a full inquiry, if necessary, as required by 38 U.S.C. 103(a).
Reference:  For more information on VA’s ability to conduct an inquiry, see
4
Weigh the evidence submitted both as to its value in providing proof and credibility.
5
Determine whether all of the following requirements are met:
  • The claimant did not know of the impediment to the marriage.
  • All other requirements of a deemed valid marriage are satisfied.
  • All the elements of a common law marriage are present.
6
Are all of the requirements referenced in Step 5 met?
  • If yes, recognize the common law marriage.
  • If no, reject the alleged common law marriage.
7
Follow the instructions in M21-1, Part III, Subpart iii, 5.C.7.

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

  • live together in a jurisdiction recognizing common law marriages under circumstances meeting requirements for a common law marriage, and
  • choose not to recognize or report the marriage because the spouse has income or net worth that would adversely affect entitlement to benefits.

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,
  • request a field examination, if necessary
  • initiate complete development if
    • evidence is received that a common law marriage exists, and
    • establishing the marriage would adversely affect entitlement to benefits, and
    • evaluate the evidence received.
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:
  • As directed in Burden v. Shinseki, 727 F.3d 1161 (Fed. Cir. 2013), the evidentiary standard of “reasonable doubt” may not always apply to common law marriage.
  • If the decision establishes a common law marriage, the issue of the decision is Deemed Valid Common Law Marriage.
  • The Veterans Service Center Manager or Pension Management Center Manager may delegate authority to approve the decision to supervisors not lower than coaches.
  • No administrative decision is required if the claim was denied for failure to furnish requested evidence.
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