TN 29 (05-01)

Citations:

Act-Sec. 216(h)(l)(A), Regulations No. 4-Secs. 404.344, 404.345, 404.726

A. Policy -- requirements for a common-law marriage

1. Basic Requirements

In some States a valid marriage may be created without a formal ceremony; these marriages are called common-law marriages. Individual States' laws may vary slightly regarding the requirement to establish a common-law marriage; generally, the requirements are:

1. the marriage is entered into by mutual consent of the parties to become husband and wife from that time on and is not solemnized by a ceremony (see GN 00305.060A.2.a.);

2. the parties must have the intent to marry;

3. the parties must consider themselves husband and wife;

4. both parties must be legally capable of entering into a valid marriage;

5. the marriage must be contracted in a State where common-law marriages are recognized (see GN 00305.075); and

6. in some States, the parties must cohabit and hold themselves out to the public as husband and wife (see GN 00305.060A.3.).

2. Agreement to Marry

An agreement to marry must:

1. contemplate a permanent union exclusive of all others;

2. be in the present tense; and

3. contemplate a marital status that cannot be terminated at will but can be terminated only in the same manner as a ceremonial marriage, i.e., death, divorce or annulment.

3. Cohabitation

1. Cohabitation means living together as husband and wife.

2. Some States require cohabitation after an agreement to be husband and wife; the cohabitation need not be in the State where the agreement was made.

4. Sojourn

In some States a common-law marriage can arise from a temporary stay or sojourn within a State's borders, if accompanied by holding out as husband and wife, even though the parties were never domiciled in that State. Check the appropriate States' laws.

5. Common-Law Marriages Outside the U.S.

See GN 00307.255 for information on specific countries; they are generally not recognized.

B. Policy - termination of benefits

A common-law marriage may also be established (in a State that recognizes such marriages) for termination of benefits. Establish the same factors as those mentioned in GN 00305.060A.1. Difficulty may be encountered in developing the couple's intent to marry due to the possible adverse results. However, develop all the necessary factors and make a determination on the facts obtained.

NOTE: Develop a common-law marriage only if there is some indication that one exists.