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

In this Section

Introduction

• how a common law marriage is contracted
• registration of informal marriages
• terminating an established common law marriage
• elements required when establishing a common law marriage
• establishing that parties held themselves out to the public as married
• evidence to prove parties held themselves out to the public as married
• secondary evidence in jurisdictions where other than ceremonial marriages are recognized, and
• supplemental evidence in jurisdictions where other than ceremonial marriages are recognized.

Change Date

III.iii.5.C.1.a.  How a Common Law Marriage Is Contracted

III.iii.5.C.1.b.  Registration of Informal Marriages

• M21-1, Part III, Subpart iii, 5.C.1.d, and
• M21-1, Part III, Subpart iii, 5.C.2.

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

• divorce
• the death of one of the marriage partners, or
• annulment.

• 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

III.iii.5.C.1.e.  Establishing That Parties Held Themselves Out to the Public as Married

• statements of persons in the community who knew the parties as spouses, and
• documents which show that the parties represented themselves as married.

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

• 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

• 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

• 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.

Introduction

• when to undertake development to establish a common law marriage, and
• how to develop for evidence of a common law marriage.

Change Date

III.iii.5.C.2.a.  When to Undertake Development to Establish a Common Law Marriage

• 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

• Modern Award Processing-Development (MAP-D), see the MAP-D User Guide, and
• the Veterans Benefits Management System (VBMS), see the VBMS Job Instruction Sheet: Initial Claim Development.

Change Date

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

Change Date

III.iii.5.C.4.a.  Determining Validity of Common Law Marriages Outside the U.S.

Introduction

• action to take when parties live in jurisdictions not recognizing common law marriages
• deeming a surviving spouse’s common law marriage valid if the state doesn’t recognize common law marriages, and
• establishing a common law marriage for a surviving spouse claimant.

Change Date

III.iii.5.C.5.a.  Action to Take When Parties Live in Jurisdictions Not Recognizing Common Law Marriages

• do not currently recognize common law marriages, and
• have not recognized common law marriages since the time of the inception of the parties’ cohabitation.

III.iii.5.C.5.b.  Deeming a Surviving Spouse’s Common Law Marriage Valid if the State Doesn’t Recognize Common Law Marriages

III.iii.5.C.5.c.  Establishing a Common Law Marriage for a Surviving Spouse Claimant

Introduction

• claimant’s interest in disavowing a common law marriage
• considering the claimant’s statement refuting a common law marriage, and
• establishing a common law marriage against the claimant’s will.

Change Date

III.iii.5.C.6.a.  Claimant’s Interest in Disavowing a Common Law Marriage

• 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

III.iii.5.C.6.c.  Establishing a Common Law Marriage Against the Claimant’s Will

• 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.

• the claimant’s duty to report relationships, see M21-1, Part III, Subpart iii, 5.A.1.m, and
• the distinction between a common law marriage and the inferred remarriage of a surviving spouse, see M21-1, Part IV, Subpart iii, 3.D.2.c.

Change Date

III.iii.5.C.7.a.  Preparing the Administrative Decision

• 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.