SSR 88-14
EFFECTIVE/PUBLICATION DATE: 09/08/88
SSR 88-14 : SECTION 216(h)(1)(A) OF THE SOCIAL SECURITY ACT (42 U.S.C. 416(h)(1)(A)) FAMILY RELATIONSHIPS -- RECOGNITION OF COMMON-LAW MARRIAGE -- OHIO
20 CFR 404.726
- The claimant and the worker, who was separated from his first wife, began living together in 1949 or 1950 in Ohio. After divorcing his first wife in 1951, the worker continued to live with the claimant until 1959 when, without notice to the claimant, the worker moved to Florida. Following their separation, the worker entered into two ceremonial marriages, one of which ended in divorce while the other terminated with the death of his wife. The claimant, on the other hand, entered into a common-law marriage which ended when she obtained a legal divorce. When the worker died on November 23, 1886, the claimant applied for widow's insurance benefits on the worker's earnings record as a surviving common-law spouse. A valid common-law marriage can be established under Ohio law if, among other things, it is proven by clear and convincing evidence that the parties agreed in praesenti (in the present) to be husband and wife. An agreement between two parties to marry in praesenti can be demonstrated either by direct evidence or by their conduct. The claimant admitted that there was no direct evidence of an explicit agreement between her and the worker to marry in praesenti. She stated that, during the time that she and the worker had lived together, they had never discussed marriage, except as a possible future event. Nor could an agreement to marry in praesenti be found on the basis of their conduct. In reaching this conclusion, three facts were particularly telling. First, the claimant did not assert that she and the worker had entered into a valid common-law marriage until 28 years after they had terminated their relationship when it became financially beneficial for her to do so. Second, the worker and tel claimant did not treat their relationship as if it were a marriage, even though they had children together, introduced themselves to others as husband and wife, signed a mortgage as husband and wife, and were listed on a deed as husband and wife. The evidence showed that they had never agreed on how long their relationship would last or how it could be terminated. Finally, after their relationship with each other had terminated, both the claimant and the worker felt free to enter into other relationships. Held, in view of the foregoing, a valid common-law marriage cannot be established between the claimant and the worker under Ohio law; therefore, the claimant is not entitled to window's insurance benefits on the worker's earnings record.
A question has been raised as to whether Ohio law would recognize the relationship between the worker and the claimant as a common-law marriage. The resolution of this question depends upon whether the claimant can clearly and convincingly demonstrate that she and the worker had an agreement in praesenti to be married.
The facts are as follows: In 1939, the claimant married her first husband. In 1946, the worker married his first wife. In 1948, the claimant divorced her first husband and the worker separated from his first wife. In 1949 or 1950, the claimant and the worker began living together. In 1951, the worker obtained a divorce from his first wife. The claimant and the worker continued to live together until 1959, when, without notice to the claimant, the worker moved to Florida.
According to the claimant, during the time that she and the worker lived together, they did not discuss marriage, the length of time that they would live together, or how their relationship could be terminated. Statements from the worker indicate that he expected to marry the claimant some time in the future and that he believed that they were not legally married. It appears that the claimant and the worker had at least one child together, often introduced each other as husband and wife, and obtained a mortgage loan and purchased a house as husband and wife. While they never sought a legal termination of their relationship with each other, after 1959, both the claimant and the worker lived with and married other people. On November 23, 1986, the worker died.
Section 216(a) of the Social Security Act provides that a claimant may receive widow's insurance benefits based upon the earnings record of a fully insured deceased worker where she demonstrates that she is the deceased worker's surviving spouse. This issue is controlled by the laws of the State in which the worker was domiciled when he died. Therefore, Florida law initially controls the issues herein, since the worker died while he was domiciled in Florida.
Florida courts recognized the validity of common-law marriages contracted in another State. Smith v. Heckler, 707 F.2d 1284, 1286 (11th Cir. 1983) citing Young v. Viruet de Garcia, 172 So.2d 243 (Fla. 1965). Florida courts, applying the "most significant relationships" test as embodied in the Restatement (second) of Conflict of Laws (1971) would find that the ultimate issues herein are to be determined under Ohio law. Cf. Manley v. Engram, 755 F.2d 1463, 1466 (11th Cir. 1985) citing Bishop v. Florida Specialty Paint Co., 389 S.2d 999 (Fla, 1980).
Common-law marriages are disfavored by Ohio courts. However, Ohio courts will recognize a relationship as a common-law marriage where three elements are met: (1) the parties agree in praesenti to be husband and wife; (2) the parties cohabit for an extended period of time; and (3) the parties hold themselves out to be husband and wife. Nestor v. Nestor, 15 Ohio St.3d 143, 472 N.E.2d 1091 (1984). The proponent of a common-law marriage must demonstrate each of these elements by clear and convincing evidence. Id. Therefore, whether the relationship between the claimant and the worker would be recognized as a common-law marriage in Ohio depends upon whether the claimant clearly and convincingly demonstrated all three of the required elements. For the reason outlined below, the Social Security Administration (SSA) concludes that the claimant has failed to demonstrate clearly and convincingly that she and the worker had an agreement in praesenti to be husband and wife, despite their extended cohabitation and repute.
the claimant and tel worker began cohabiting at a time when the worker was separated from, but legally married to, another woman. However, the claimant and the worker continued to cohabit for 8 years after the worker obtained a divorce from his first wife. During this 8-year period, the claimant and the worker introduced each other as husband and wife, had children together, and obtained a mortgage loan and purchased a home as husband and wife. Still, the claimant and the worker did not undergo a ceremony, intended to get married some time in the future, and understood themselves never to be legally married.
A common-law marriage is "the marital joinder of a man and a woman without the benefit of formal papers or procedures." Nestor v. Nestor, 15 Ohio St.3d 143, 472 N.E.2d 1091, 1094 (1984). While common-law marriages have been traditionally recognized in Ohio, such marriages are not favored by Ohio courts. Id. Thus, the claimant herein, as the proponent of a common-law marriage, must prove by clear and convincing evidence the existence of each of the following three facts: (1) that she and the worker agreed in praesenti to be husband and wife; (2) that she and the worker cohabited for an extended period of time; and (3) that she and the worker held themselves out to be husband and wife. Id. SSA agrees that the evidence is sufficient to demonstrate that the claimant and the worker satisfied the latter two elements and, thus, SSA directs its analysis herein to the issue of whether the claimant sufficiently demonstrated that she and the deceased worker had entered into an agreement to marry in praesenti.
In Nestor, the Ohio Supreme Court held that an "agreement to marry in praesenti is the essential element of a common law marriage." 472 N.E.2d 1091, 1094 (1984). Absent proof of such an agreement, no common-low marriage will be found even if the parties have demonstrated cohabitation and repute. Id.; see, Young vs. Secretary of Health and Human Services, 787 F.2d 1064 (6th Cir. 1986) (upholding the Secretary's decision that the claimant was not the surviving spouse of the worker where the Secretary had correctly found that the claimant had failed to prove an agreement to marry the worker in praesenti).
The Nestor court noted that an agreement to marry in praesenti can be demonstrated in one of two ways: "either by way of direct evidence which establishes the agreement, or by way of proof of cohabitation, declarations, and the conduct of the parties and their recognized status in the community in which they reside." 472 N.E.2d at 1094 (1984). Still, the claimant will satisfy her burden only where she demonstrates an agreement to marry in praesenti by clear and convincing evidence. The "clear and convincing" standard is defined by Ohio courts as: "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established . . . . It does not mean clear and unequivocal." Markley v. Hudson, 143 Ohio St. 163, 54 N.E.2d 304 (1944); Jolley, 46 Ohio Misc. 40, 347 N.E.2d 557, 560 (1975). It is SSA's opinion that the claimant has not sufficiently demonstrated an agreement to marry the deceased worker in praesenti in either of the two ways outlined by the Nestor court.
Significantly, both the claimant and the worker admitted that there was no "direct evidence" of an agreement to marry in praesenti. The claimant stated that she and the worker had lived together, but that they had never discussed marriage, except as a future event. This statement was confirmed by the worker, who stated that he had expected to marry the claimant some time in the future, but that they had "never got around to it" and that he had never thought that they were married. Moreover, there was no evidence of an explicit agreement between the claimant and the worker to be husband and wife. Therefore, there was no "direct evidence" which could clearly and convincingly demonstrate that the claimant and the worker had entered into a common-law marriage.
The Nestor court also held that an agreement to marry in praesenti will be found where such can be clearly and convincingly demonstrated by the conduct of the parties. 472 N.E.2d at 1094 (1984). This standard has a logical and necessary corollary; namely, that an agreement in praesenti may also be disproven as a result of the parties' conduct. In the instant case, it is the corollary which controls and proves fatal to the claimant's claim that she and the worker had entered into a common-law marriage based upon their conduct.
Here, three facts are particularly telling. First, the claimant did not assert that she and the worker had entered into a common-law marriage until 28 years after they had terminated their relationship when it became financially beneficial for her to do so. While the claimant maintains that she did not learn that common-law marriages were valid until after another relationship ended in 1973, this fact is not persuasive. During the subsequent 12 years (i.e., between 1973 and 1985), the claimant made no attempt to have her relationship with the worker declared to be a common-law marriage. Similarly, the worker made no attempt to have their relationship legally terminated prior to marrying other women.
Second, although the claimant and the worker had children together, introduced each other as husband and wife, signed a mortgage agreement as husband and wife, and were listed on a deed as husband and wife, the claimant and the worker did not treat their relationship as if it were a marriage.[1] By their own admissions, the claimant and the worker never agreed upon the length of their relationship or how it could be terminated. Indeed, when the worker decided that he wanted to terminate his relationship with the claimant, he simply moved to Florida without even informing the claimant. Moreover, while he was in Florida, the worker underwent a ceremonial marriage, presumably without prior notice to the claimant.
Finally, after their relationship with each other had terminated, each of the parties herein felt free to enter into other more legally binding relationships. In the case of the worker, he entered into two ceremonial marriages, one of which ended in divorce while the other terminated with the death of his wife. With regard to the claimant, she entered into a common-law marriage and she obtained a legal divorce. From these facts two inferences can be drawn: (1) both the claimant and the worker understood how to form and terminate a valid marriage well after the termination of their relationship with each other; and (2) that, even though they understood how to form and terminate a valid marriage, neither thought it necessary to examine their relationship with each other or to determine whether their relationship constituted a valid marriage. While these inferences alone are not pivotal, when considered with the remaining actions of the parties herein, such inferences further demonstrate a complete lack of present intent to be married as well as an implied understanding that the parties herein did not consider themselves to be married at the time of their relationship. Accordingly, SSA is of the opinion that the worker and the claimant were never legally married to each other and thus, the claimant is not entitled to widow's insurance benefits on the worker's earnings record.
[1] SSA also noted some important contradictions in the statements made by the claimant and the worker regarding the paternity of the children. It appears that the claimant had five children. While the claimant only listed three of the children as the issue of their relationship, the worker's statement listed all five children as issue of their relationship. Curiously, the claimant stated that the three children she had listed as issue of their relationship were born between 1951 and 1954 while the worker's statement represented that the children were born between 1959 and 1966 when he was in Florida. Significantly, only the birth certificates of two of the children that the claimant had listed as issue of their relationship show the worker as the father. Moreover, the statement filed on behalf of the worker must be questioned because it was prepared within 30 days of his death and while he was apparently very ill.