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 III, Subpart iii, 5.C.1.d, and M21-1, Part III, Subpart iii, 5.C.2. 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 marriage in all respects, and is no different from a ceremonial marriage. The marriage cannot be terminated except through divorce the of one of the marriage partners, or annulment. 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. d. Elements Required When Establishing a Common Law Marriage The legal requirements for establishing a common law marriage vary from jurisdiction to jurisdiction. Per , the Department of Veterans Affairs (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. Element Description An agreement between the parties to be married Often this agreement is explicit, but it can be inferred from the conduct of the parties. The statement of one of the parties that there was no agreement to be married is not necessarily conclusive, especially when the statement is self-serving, and there is evidence that the parties held themselves out as married.
1 Is the claimant a surviving spouse alleging a common law marriage to the Veteran? If yes, go to M21-1, Part III, Subpart iii, 5.C.5.b. If no deny the claim based on the lack of a marital relationship without submission for a legal opinion, and go to Step 2. 2 Prepare a two-signature administrative decision the format in M21-1, Part III, Subpart v, 1.A.3, and to the information in M21-1, Part III, Subpart iii, 5.C.7. b. Deeming a Surviving Spouse’s Common Law Marriage if the State Doesn’t Recognize Common Law Marriages In , 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 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 III, Subpart iii, 5.C.5.c. 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. Step Action 1 Develop for evidence to establish the common law marriage, and secure the surviving spouse’s statement as to whether he/she was aware that common law marriages were not recognized in the jurisdiction where the parties resided, and the reasons for this understanding. Reference: For more information on the development actions to take when a common law marriage is claimed, see M21-1, Part III, Subpart iii, 5.C.2.
a. Preparing the Administrative Decision Use the format in M21-1, Part III, Subpart v, 1.A.3 to prepare a two-signature administrative decision that clearly articulates the evidence considered discusses the comparative weight assigned to each piece of evidence provides an evaluation of the credibility of the evidence, and discusses the reason VA rendered that decision. Notes: As directed in the evidentiary standard of “reasonable 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.” The Veterans Service Center Manager (VSCM) or Pension Management Center Manager (PMCM) may delegate authority to approve the decision to supervisors not lower than coaches/unit chiefs. No administrative decision is required if the claim was denied for failure to furnish requested evidence.