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Do I Have a Common Law Marriage and Will the Social Security Administration Acknowledge It?

January 27, 2016

By Brett J. Zeitlin

In some places in the United States, a couple can get married without a marriage license and without a civil or religious ceremony. This type of marriage is called a “common law marriage.” Knowing whether you are (or were) common law married, and knowing how to prove it, can be very important. Couples who are common law married enjoy all of the same benefits as couples that are married in a religious or civil ceremony.

Today, eight states still allow common law marriage. Five states have enacted legislation to eliminate the right to enter into a common law marriage, but they still recognize common law marriages formed before a specified date. Pennsylvania is one of those five states. A couple no longer can enter into a common law marriage in Pennsylvania, but if you were common law married on or before Jan. 1, 2005, your marriage is still valid and recognized by the state. New Jersey does not recognize common law marriages.

In Pennsylvania, a couple may claim to be common law married if there is clear and convincing evidence that the couple exchanged words, in the present tense, for the specific purpose of establishing the legal relationship of husband and wife. This exchange of words must have taken place on or before Jan. 1, 2005. There are no specific words that need to be spoken by the couple, but the purpose of the exchange of words must be very specific. A couple must state that they “are” married. An agreement by a couple that they “will get” married forms an engagement, not a common law marriage. A couple that has lived together for a long period of time is not necessarily common law married.

Many people assume that if they live together for seven years or some other period of time, they can claim to be common law married. This is not true. A couple cannot prove the existence of a common law marriage simply by showing that they lived together, have children together, or own property together.  That marriage is formed only by the exchange of words, or vows, clearly intended to establish that the couple has assumed the bonds of marriage.

If one or both members of a couple are deceased, it may still be possible to establish that the couple was common law married. In those situations, Pennsylvania law recognizes that there may not be evidence that an exchange of words took place. When one or both members of a couple are deceased, the court may presume the existence of a common law marriage if there is sufficiently strong evidence that a couple lived together as husband and wife on a consistent basis and had a general and broad reputation of being married. That presumption is rebutted if there is evidence that the couple did not specifically agree to live as husband and wife.

If you are (or were) common law married in Pennsylvania, you may be eligible for certain benefits from the U.S. Social Security Administration. The SSA acknowledges all common law marriages that were established in states that recognize them, such as Pennsylvania. The SSA even provides a list of items that must be provided to prove the existence of a common law marriage:

If both spouses are living, each spouse must provide a statement affirming the marriage, and the spouse applying for benefits must provide a statement affirming the marriage from one of their own blood relatives and a statement affirming the marriage from one of their spouse’s blood relatives.

If one spouse is no longer living, the spouse applying for benefits must provide a statement affirming the marriage, and two statements affirming the marriage from blood relatives of the deceased spouse.

If both spouses are deceased, the person applying for benefits must provide a statement affirming the marriage from one blood relative of each spouse.

All statements submitted to the SSA must be submitted on special forms (Statement Regarding Marriage or Statement of Marital Relationship) which are available at the Social Security office and on the Social Security Administration’s website.

Common law marriage has the same effect as ceremonial marriage; the couple is married for all purposes. If you establish the existence of a valid common law marriage, you and your spouse may have rights to one another’s Social Security benefits and employment benefits, such as pension benefits. You and your spouse may also have rights to one another’s assets and debts. If you wish to terminate your common law marriage you will need to obtain a legal divorce from a court of competent jurisdiction.  You cannot terminate your common law marriage in any other way. If you establish the existence of a common law marriage, and then your relationship ends, you cannot legally marry again unless you obtain a legal divorce.

If you think that you may be married by common law or if you have questions on the topic, please contact one of the family law attorneys of Willig, Williams & Davidson by calling 215-656-3600.

   
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