20 CFR 404.1101 and 404.1104

SSR 71-4

Where the evidence submitted by claimant, applicant for wife's insurance benefits, showed that she and the worker had lived together in Ohio continuously for 25 years, prior to entering into a ceremonial marriage; that they, at all times, held themselves out to the public as husband and wife; that no impediment to a valid marriage existed; and that they in good faith believed their common law relationship was a valid marriage; held, the evidence sufficiently established a common law marriage; the subsequent ceremonial marriage merely formalized an already existing marriage which was a legal and valid common law marriage under the law of Ohio.

R, the worker, and W, the claimant, began living together in Ohio in 1943, allegedly as common law husband and wife. Neither party had prior undissolved marriages, and no children were born of the relationship. R became entitled to retirement benefits under section 202(a) of the Act in August 1965. In December 1968 W filed for wife's benefits, as the common law wife of R. In February 1969, after obtaining a marriage license, W and R were ceremonially married. R died in March 1969.

The general issue thus to be decided is whether W is entitled to wife's and subsequently to widow's insurance benefits on the earnings account of the deceased worker.

In so far as pertinent to this case, claimant, in order to qualify for wife's benefits must have been married to the worker for not less than one year at the time she filed her application for wife's benefits, (section 216(b) of the Act), and in order to qualify for widow's benefits, must have been married to the worker for not less than nine months at the time of his death (section 216(c) of the Act). Thus, if the duration of claimant's marriage is to be measured from the time of the ceremonial marriage, claimant did not meet either of the requirements, since at the time of her application for wife's benefits she had not yet been ceremonially married to the worker and at the time of his death had been ceremonially married to him for only one month. Accordingly, claimant can qualify as a wife and subsequently as a widow only if her relationship with the worker beginning in 1943 constituted a valid common law marriage under the law of Ohio, where the worker was domiciled at the time of claimant's application for wife's benefits and t the time of his death (section 216(h)(1)(A) of the Act).

The State of Ohio will recognize a common law marriage when all of the elements of such a marriage are present. First, there must be a contract to marry per verba de praesenti; that is, the parties must have a present intent to be married and not an intent to marry in the future. Second, this intent must be followed by cohabitation. Third, the parties must hold themselves out as married to other members of the community in which they live and they must have the reputation of being married in that community. In re Redman's Estate, 21 N.E.2d 659 (Ohio 1939). Dibble v. Dibble, 100 N.W.2d 451 (Ohio 1950).

Further, the Ohio courts have held that "* * * while an agreement in praesenti must exist before there can be a common law marriage, * * * such an agreement can result from the conduct of the parties in * * * the[ir] community and their actions as testified to by their acquaintances. It is not necessary that the proof establish an express agreement resulting in a contract. It may be established by circumstances, from which an agreement may be inferred." State v. Weitzel, 168 N.E.2d 550 (Ohio 1960). Also, while a contract in praesenti must be shown, the presence of such a contract, without evidence of cohabitation, holding out, and reputation, would not amount to a common law marriage. In re Estate of Soeder, 220 N.E.2d 547 (Ohio 1966).

The facts revealed that at the time R and W began living together, R's mother had recorded in her family Bible an entry showing 1943 as the date of the marriage. It was further shown that R paid W's medical and hospitalization costs, they entered into loan contracts and chattel mortgages together, and entered into a lease of an apartment in their joint names. They had on August 19, 1953, executed mutual wills in which each named the other as spouse and devise. The couple had read a newspaper account of the legality of common law marriages in Ohio and believed that they wee validly married. W explained that the failure to effect a ceremonial marriage prior to February 11, 1969, was due to lack of money and religious differences.

The facts establish that R and W met the common law marriage requirements under Ohio law. The parties intended to be married when they assumed their cohabitative relationship; there was no impediment to their marriage; they held themselves out as man and wife for over 25 years and the people in the community in which they live, including their relatives, believed that they were married. They transacted business in their joint names, executed leases, contracts, and otherwise conducted themselves as a married couple in accordance with their belief that a valid common law marriage existed. This is further evidenced by the execution of mutual wills designating each party as spouse and devisee of the other. The subsequent ceremonial marriage would not be a bar to a valid common law marriage.

Accordingly, it is held that W, having established a valid common law marriage under Ohio law, was the lawful wife and subsequently the widow of R. Therefore, all other requirements have been met, W is entitled to benefits on R's account.

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