Establishing Common Law Marriages

Overview

In this Section

This section contains the following topics:

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1. Common Law Marriage Requirements

Introduction

This topic contains information on common law marriage requirements, including

• 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

March 18, 2015

VII.i.2.B.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: For more information on

• the states that recognize common law marriages, see M21-1, Part VII, Subpart i, 2.B.3.a, and
• determining the proper effective date for granting entitlement to additional
• disability compensation based on a same-sex marriage, see M21-1, Part VII, Subpart i, 1.C.2.h, and
• Veterans Pension based on a same-sex marriage, see
• 38 CFR 3.114(a), and
• 38 CFR 3.401(b).

VII.i.2.B.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.

Reference: For more information on establishing common law marriages, see

• M21-1, Part VII, Subpart i, 2.B.1.d, and
• M21-1, Part VII, Subpart i, 2.B.2.

VII.i.2.B.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.

VII.i.2.B.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 and Coleman 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.

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Reference: For the procedure for developing for evidence of a common law marriage, see M21-1, Part VII, Subpart i, 2.B.2.b.

VII.i.2.B.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 VII, Subpart i, 2.B.1.f below.

VII.i.2.B.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.

VII.i.2.B.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.

VII.i.2.B.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

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

Change Date

November 6, 2015

VII.i.2.B.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
• the evidence
• does not establish a claimed ceremonial marriage, but
• does support 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 VII, Subpart i, 2.B.3.

VII.i.2.B.2.b. How to Develop for Evidence of a Common Law Marriage

Use the table below to develop for common law marriage.

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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 using the Veterans Benefits Management System (VBMS), see the VBMS Core User Guide.

3. Validity of Common Law Marriages By State

Change Date

December 2, 2021

VII.i.2.B.3.a. Recognition of Common Law Marriages by State

Use the table below to check the validity of common law marriages by State.

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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

September 12, 2019

VII.i.2.B.4.a. Determining the Validity of Common Law Marriages Outside the U.S.

Follow the steps in the table below to determine the validity of common law marriages outside the U.S.

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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

• 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

February 19, 2019

VII.i.2.B.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.

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VII.i.2.B.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 VII, Subpart i, 2.B.5.c.

VII.i.2.B.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.

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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

• 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

March 18, 2015

VII.i.2.B.6.a. Claimant’s Interest in Disavowing a Common Law Marriage

A claimant and their 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.

VII.i.2.B.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 themself out publicly as the spouse of the other person.

VII.i.2.B.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 VII, Subpart i, 2.B.7 to recognize or reject a common law marriage on the merits.

Reference: For more information on the claimant’s duty to report relationships, see M21-1, Part VII, Subpart i, 1.A.1.i.

7. Administrative Decision Required to Recognize or Reject a Common Law Marriage

Change Date

July 29, 2024

VII.i.2.B.7.a. Preparing the Administrative Decision

Follow the instructions in M21-1, Part X, Subpart v, 1.C.2 for preparing a two-signature administrative decision.

Notes:

• As directed in Burden and Coleman 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.
• No administrative decision is required if the claim was denied for failure to furnish requested evidence.