SSR 61-9. VALIDITY OF COMMON-LAW MARRIAGE WHERE PARTIES INTEND CEREMONIAL MARRIAGE IN FUTURE
- An intent to enter into a ceremonial marriage in the future (as long as the parties intended to be married at the time they began living together) is not a bar to the creation of a valid common-law marriage in certain States recognizing common-law marriages.
Section 216(h)(1) of the Social Security Act provides that an applicant is the wife of an insured individual for purposes of such Act if the courts of the State in which such insured individual is domiciled at the time the application for wife's insurance benefits is filed would find that the applicant and such insured individual were validly married.
H and W were domiciled in Colorado when they applied for old-age and wife's insurance benefits. H and W had been living together for several years but had never been ceremonially married. W stated that when they began living together, H had asked her to be his wife and she agreed. H stated that they made such agreement because they were both alone and wished to live together as husband and wife and that they intended to go through a marriage ceremony at some future date but just never got around to it. Neither H nor W had any legal impediment to contracting marriage when they began living together, and they both believed that their relationship could be terminated only by death or divorce. H and W held themselves out to the community, friends, and relatives as husband and wife and conducted themselves accordingly.
Colorado follows the majority view that marriage is a civil contract in that it is a present agreement, per verba de praesenti (by words of the present), to be husband and wife and to assume all the rights and duties of the martial relationship, and that it is valid only when entered into voluntarily by parties who have capacity to contract marriage.
An agreement to cohabit for the present and to marry later, however, is not a marriage even if there is cohabitation. There can be no contract by words of the present, where the marital status is to become fixed in the future. This rule applies where a valid marriage cannot be entered into until some future time, such as after the death of an existing spouse, 35 Am.Jr., Marriage, Section 41.
H and W's statements as to their intent when they began living together show that they agreed to be married at the time they began living together although they contemplated that a marriage ceremony was to be performed some time in the future. Held, under Colorado law, H and W entered into a valid common-law marriage at the time they agreed to live together presently as husband and wife. Therefore, W meets the requirements of section 216(h)(1) of the Social Security Act for the purpose of entitlement to wife's benefits.