The number holder (NH) resided in Pennsylvania; therefore, we look to the Pennsylvania law to determine whether Claimant is the NH’s widow. Because the Claimant and the NH did not obtain a license, they did not meet the strict statutory requirements for a valid marriage. However, we believe that the Pennsylvania courts would likely find that Claimant and the NH were married in a ceremonial Quaker marriage and remained married until the NH’s death. Despite the lack of a license. we believe that the Pennsylvania courts would likely find that Claimant and the NH met the requirements of a valid common law marriage under Pennsylvania law. Therefore, we believe the agency would be justified in finding that Claimant is the NH’s widow for purposes of determining entitlement to WIB on the NH’s record.

QUESTION PRESENTED

Claimant, C~, alleges a Quaker ceremonial marriage to the Number Holder, L~ (NH), beginning in Pennsylvania on October XX, 1963, and ending on December XX, 2020, when the NH died in Pennsylvania. Because the NH and Claimant have a Quaker Marriage Certificate, but no Pennsylvania marriage license, you asked whether a valid marriage existed between the NH and Claimant under Pennsylvania law for purposes of determining Claimant’s entitlement to widow’s insurance benefits (WIB) under Title II of the Social Security Act (Act) on the NH’s record.^{[1] [2]}

ANSWER

Yes. We believe that the agency could find that Claimant and the NH were in a valid marriage and that Claimant is thus the NH’s widow for purposes of determining her entitlement to WIB on the NH’s record. Because Claimant and the NH did not obtain a license, they did not meet the strict statutory requirements for a valid marriage. However, the Pennsylvania courts might nevertheless find that Claimant and the NH had a valid marriage despite the lack of a license. Prior to January 1, 2005, the date after which Pennsylvania prospectively abolished common law marriage, some Pennsylvania courts held that statutory marriage license requirements were “directory only” and not mandatory. Thus, Pennsylvania courts are likely to find that Claimant and the NH had a valid marriage even without a license.

Moreover, we believe that the Pennsylvania courts would likely find that Claimant and the NH entered into a valid common law marriage under Pennsylvania law in October 1963 (i.e., before January 1, 2005, the date after which Pennsylvania prospectively abolished common law marriage) that lasted until the NH’s death on December XX, 2020. For this additional reason, we believe that the agency could find that Claimant and the NH were in a valid marriage and that Claimant is the NH’s widow for purposes of determining entitlement to WIB on the NH’s record.

BACKGROUND

The NH died on December XX, 2020, while domiciled in Pennsylvania. On September XX, 2021, Claimant filed an application for WIB on the NH’s record. In that application, Claimant averred that she and the NH lived at the same address at the time of his death.

Both Claimant and the NH are Quakers. On October XX, 1963, Claimant and the NH were united in a Quaker Ceremonial Marriage before an officiant in Newtown Square, Pennsylvania. In her application for benefits, Claimant averred that she and the NH were married before a “clergyman or public official.” Claimant and the NH did not obtain a marriage license from the Commonwealth of Pennsylvania. Instead, as proof of her marriage to the NH, Claimant submitted to the agency a Quaker Marriage Certificate containing over 200 signatures of those who attended the ceremony. The Quaker Marriage Certificate provides information including the date of the marriage, the names and signatures of Claimant and the NH, and the signatures of the more than 200 attendees who witnessed the marriage ceremony. The individuals who signed the marriage certificate were Quakers and, by signing the certificate, they acknowledged that they witnessed the marriage, which was in conformance with the Quaker marriage process.

In February 1964, the agency processed a name change for Claimant from her maiden name (J~) to B~ to match the NH’s last name.

ANALYSIS

A. Entitlement to Widow’s Insurance Benefits Under the Social Security Act^[3]

To be entitled to WIB under Title II of the Act, Claimant must establish, among other things, that she is the widow of an insured individual. See Act §§ 202(e)-(f), 216(a), (c), (g), 42 U.S.C. §§ 402(e)-(f), 416(a), (c), (g); see also 20 C.F.R. § 404.335.

To determine whether Claimant is an insured individual’s widow, the agency looks to the laws of the state where the insured had a permanent home at the time of his death to determine whether Claimant and the insured were validly married. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. However, even if Claimant was not validly married to the insured individual, the agency will deem Claimant to be the insured individual’s widow if, under the laws of the state where the insured individual was domiciled at the time of his death, Claimant would inherit intestate from the insured as if she was the insured’s surviving spouse. See Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345.

B. Pennsylvania Law

At the time of his death, the NH resided in Pennsylvania. We therefore look to Pennsylvania law to determine whether Claimant is the NH’s widow.

Pennsylvania law expressly recognizes two forms of marriage: 1) ceremonial marriage, i.e., a marriage performed by a religious or civil authority in accordance with the requirements of Pennsylvania’s Marriage Act, 23 Pa. Con. Stat. Ann. §§ 1101, et seq., and 2) prior to January 1, 2005, common law marriage.^[4]

1. Pennsylvania’s Marriage Act

Under Pennsylvania’s Marriage Act, 23 Pa. Con. Stat. Ann. §§ 1101, et seq., a valid Pennsylvania marriage requires a license issued by any county in the Commonwealth and a ceremony that takes place anywhere in the Commonwealth. See 23 Pa. Con. Stat. Ann. §§ 1104, 1301(b). Pennsylvania’s Marriage Act expressly provides that “[n]o person shall be joined in marriage in this Commonwealth until a marriage license has been obtained.” 23 Pa. Con. Stat. Ann. § 1301 Likewise, 23 Pa. Con. Stat. Ann. § 1501(c) states, “[n]o person or religious organization qualified to perform marriages shall officiate at a marriage ceremony without the parties having obtained a marriage license issued under this part.”

2. Pennsylvania Common Law Marriage

Common law marriages formed on or before January 1, 2005, are considered valid under Pennsylvania law. See 23 Pa. Const. Stat. Ann. § 1103 (2005). See Elk Mountain Ski Resort, Inc. v. Workers’ Compensation Appeal Board, 114 A.3d 27, 33 (Pa. Commw. Ct. 2015); In re Estate of Carter, 159 A.3d 970, 977 (Pa. Super. Ct. 2017) (considering the validity of Pennsylvania same-sex common law marriage pre-dating 2005); see also Dugan v. Greco, 2020 WL 1139061, at *6 (Pa. Super. Ct. Mar. 9, 2020).

To prove a common law marriage where both putative spouses are able to testify, a party must provide clear and convincing evidence of an “exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that.” Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (Pa. 1998) (citing Commonwealth v. Gorby, 588 A.2d 902, 907 (Pa. 1991)); see also POMS GN 00305.075B. The clear and convincing evidence standard requires “‘proof greater than a mere preponderance, but less than beyond a reasonable doubt.’” Estate of Vanoni, 798 A.2d 203, 209 (Pa. Super. Ct. 2002) (citations omitted). Where contradictory testimony is presented, the party claiming a common law marriage may introduce evidence of constant cohabitation and reputation of marriage to support his or her claim. See Staudenmayer, 714 A.2d at 1021; In re Estate of Carter, 159 A.3d at 979. Pennsylvania courts disfavor common law marriages, instructing that the doctrine is a “fruitful source of perjury and fraud” that should be viewed with “hostility.” Staudenmayer, 714 A.2d at 1019 20.

When one spouse is deceased, and in the absence of available testimony that the couple exchanged words in the present tense, Pennsylvania courts apply a rebuttable presumption in favor of common law marriage where the living putative spouse proves (1) constant cohabitation and (2) broad and general reputation of marriage. See Staudenmayer, 714 A.2d at 1020; POMS GN 00305.075B (“Where one party is deceased, or is otherwise unable to testify about the exchange of words necessary to have created a common-law marriage, Pennsylvania courts presume that a common-law marriage existed if there is sufficient proof that the parties lived together as husband and wife on a constant basis and had a general and broad reputation of being married.”). The requirement of a broad and general reputation, rather than a reputation limited to close friends and family, is meant to deter fraud. See In re Manfredi’s Estate, 159 A.2d 697, 700 (Pa. 1960) (citing In re Hilton’s Estate, 106 A. 69 (Pa. 1919)).

C. Discussion

1. Claimant and the NH Did Not Meet the Strict Statutory Requirements for Marriage. Despite this, Pennsylvania Courts Would Likely Recognize the Validity of Their Marriage.

As discussed above, a valid Pennsylvania marriage requires a license and a solemnizing ceremony with witnesses. See 23 Pa. Con. Stat. Ann. §§ 1104, 1301(b). Here, although Claimant and the NH had a valid Quaker marriage ceremony with witnesses, they did not obtain a marriage license prior to their marriage ceremony. Thus, they did not meet the strict statutory requirements for a marriage under Pennsylvania’s Marriage Act. See id.

Despite the lack of a marriage license, the marriage between Claimant and the NH can nonetheless be considered valid because Pennsylvania courts have recognized marriages contracted prior to 2005 as valid even where a couple did not have a valid marriage license.

For example, in DeMedio v. DeMedio, 215 Pa. Super. 255, 277, 257 A.2d 290, 302 (1969)^[5] , the Superior Court of Pennsylvania held that a marriage contracted by the parties was valid despite allegations of a defective marriage license. 215 Pa. Super. at 281-82. There, the husband instituted an annulment action against his wife alleging that she was not competent to enter into a marriage contract and had falsely sworn as to her mental condition when applying for the marriage license. Id. at 257. In rejecting the husband’s request for an annulment, the court held that “[e]ven if such false swearing had been proved, it would be immaterial to the validity of an otherwise valid marriage contract. The validity of a marriage is not affected by the fact that the marriage license may have been so fraudulently obtained.” Id. at 277. The court further explained, “Pennsylvania law also follows the rule that the marriage licensure act is directory only and not mandatory and therefore a valid marriage can be contracted without such license or pursuant to a defective or improperly obtained license. We can find no valid reason in law, therefore, to hold the ceremonial marriage contracted by plaintiff and defendant . . . to be null and void.” Id. at 277 (emphasis added).

Likewise, in Cordora v. Cordora, 58 Pa. D. & C. 87, 90 (Pa. Ct. Com. Pl. 1946), the parties sought an annulment for an allegedly void marriage that was performed after signing a marriage license application, but without waiting the requisite three days to obtain the license. Id. at 88. The court stated, “[W]e believe [the earlier marriage license acts’] provisions to be directory rather than mandatory, since it contains no express provision making marriages void if the statute is not complied with.” Id. at 91. The court further stated, “[t]he courts of this Commonwealth have held on many occasions that marriage license acts are directory only and not mandatory unless they express words of nullity.” Id. (citing Sahutsky v. E.G. Budd Mfg. Co., 58 Pa. D. & C. 446, 470, 1947 WL 2742 (1945)) (emphasis added).

Similarly, in Shouey v. Shouey, two minors obtained a license and got married without parental consent. 16 Pa. D. & C. 693, 694 (Pa. Ct. Com. Pl. 1931). The pair subsequently attempted to annul their marriage “as if said alleged marriage had never been contracted.” Id. at 694. The court refused to annul the marriage. Id. at 697. The court explained, “[i]t is true that no justice of the peace or minister may marry a minor without the consent of the parent, but that does not affect the validity of the marriage itself . . . The issuing of a license under such circumstances may be visited with the penalty provided by law, but the marriage is not thereby avoided.” Id. While a penalty may be imposed upon those who violate the statutory requirements, “nowhere in the act is it stated that such a marriage shall be void.” Id. Indeed, “[i]n the absence of a positive statute declaring that all marriages not celebrated in the manner therein prescribed shall be void, any marriage regularly made according to the common law, without observing the statutory regulations, is a valid marriage . . . Acts which provide for the obtaining of licenses are directory and not a declaration of what shall constitute a legal marriage and what not.” Id. at 696 (emphasis added).

Given this body of case law, we believe that a Pennsylvania court would likely find that Claimant and the NH had a valid marriage despite their lack of a marriage license. See Shouey, 16 Pa. D. & C. at 696; DeMedio, 215 Pa. Super. at 277; Cordora, 58 Pa. D. & C. at 92.

2. The Pennsylvania Courts Would Likely Find that Claimant and the NH Satisfied the Requirements for a Common Law Marriage in Pennsylvania.

Even assuming that the Pennsylvania courts would find that the absence of a license rendered the marriage between Claimant and the NH invalid under the Pennsylvania Marriage Act, we believe that the Pennsylvania courts would likely find that Claimant has established that she and the NH had a valid Pennsylvania common law marriage.

Prior to January 1, 2005, Pennsylvania courts recognized common law marriages in finding that a defect with a marriage license or the failure to obtain a marriage license would not affect the validity of the marriage. See, e.g., DeMedio, 215 Pa. Super. at 277; Shouey, 16 Pa. D. & C. at 696; In re Larry’s Estate, 10 Pa. D. & C.3d 44, 49-50 (Pa. Ct. Com. Pl. 1979) (holding that marriage license acts are “directory only”). Rather, “a valid marriage can be contracted without such license or pursuant to a defective or improperly obtained license.” DeMedio, 215 Pa. Super. at 277. Indeed, as the court in DeMedio explained, “[i]f the evidence was such that the law would require us to declare the ceremonial marriage void, we would still be constrained to hold that under the facts and the law of this state a common law marriage exists.” See DeMedio, 215 Pa. Super. at 278; see also In re Larry’s Estate, 10 Pa. D. & C.3d at 49-50 (“Since marriage license acts are directory only and since this Commonwealth recognizes the validity of common law marriages, the only elements necessary for the creation of marital status are the clearly evidenced intention of the parties to create that status and the clearly evidenced expressions of assent to the immediate creation of that status.”).

Here, based on the evidence presented and a review of relevant Pennsylvania case law, we believe that the Pennsylvania courts would likely find that Claimant and the NH had a valid common law marriage beginning with the couple’s ceremonial marriage in October 1963 and ending with the NH’s death in December 2020.

The evidence provided sufficiently demonstrates that Claimant and the NH entered into a common law marriage in 1963 based on their Quaker marriage ceremony, and that they constantly cohabitated and had a broad and general reputation of being married. See, e.g., POMS GN 00305.075B (“Where one party is deceased, or is otherwise unable to testify about the exchange of words necessary to have created a common-law marriage, Pennsylvania courts presume that a common-law marriage existed if there is sufficient proof that the parties lived together as husband and wife on a constant basis and had a general and broad reputation of being married.”); Hornbake v. Hornbake, 72 Pa. Super. 605, 607 (1919); DeMedio, 215 Pa. Super. at 278-79.

First, with respect to evidence of constant cohabitation, Claimant averred in her application for WIB that she and the NH lived together continuously since 1963, when they entered into a marital relationship, until the NH’s death in December 2020. Moreover, the agency processed a name change for Claimant in February 1964, when she changed from her maiden name (J~) to B~, to match the NH’s last name. Further, Claimant and the NH had at least one child together, A~.

Second, with respect to the broad and general reputation of marriage, Claimant and the NH were married in 1963 in a Quaker ceremony that was presided over by an officiant and witnessed by more than 200 people. See, e.g., In re Estate of Carter, 159 A.3d 970, 981 (Pa. Super. Ct. 2017) (in finding a common law marriage, the court considered that the couple and their families considered them married and that they were generally known as married); Caporali v. Zunic, 2016 WL 6946219, at *2-3 (Pa. Super. Ct. Nov. 28, 2016) (upholding a trial court’s reliance on statements from friends and neighbors indicating a general belief that the couple was married). Indeed, in support of her application for WIB, Claimant presented a Quaker marriage certificate containing the names of the couple, location of the marriage, statement of vows exchanged, and the signatures of the couple and over 200 witnesses. In February 1964, the agency processed a name change for Claimant from her maiden name (J~) to B~, to match the NH’s last name. Moreover, Claimant and the NH had at least one child together, A~. Accordingly, we believe the evidence is sufficient to show that the NH and Claimant shared the ties that typically bind married couples.

In sum, we believe that the relationship between Claimant and the NH meets the requirements of a common law marriage under Pennsylvania law, and, therefore, that Claimant is entitled to benefits under the NH’s record.

CONCLUSION

For the above reasons, we believe that the Pennsylvania courts would likely find that Claimant and the NH were married in a ceremonial Quaker marriage in 1963 and remained married until the NH’s death in December 2020, despite the lack of a license. In the alternative, we believe that the Pennsylvania courts would likely find that Claimant and the NH met the requirements of a valid common law marriage under Pennsylvania law. Therefore, we believe the agency would be justified in finding that Claimant is the NH’s widow for purposes of determining entitlement to WIB on the NH’s record.

Since Pennsylvania abolished common-law marriage in 2005, a valid Pennsylvania marriage requires a license and a solemnizing ceremony with witnesses. The statute that provides for self-uniting marriages requires that the parties to the marriage sign the original marriage certificate, that two witnesses attest to it, and that the parties retain the certificate. The provision recognizes a marriage performed without officiating clergy.

QUESTION PRESENTED

On October 5, 2012, you requested an opinion as to whether a self-uniting marriage between Sherry and NH is valid under Pennsylvania law.  You also asked whether a self-uniting marriage is valid for Sherry’s legal name change. 

SHORT ANSWER

Although the Pennsylvania Supreme Court has not ruled on the issue, the weight of authority supports the conclusion that the self-uniting marriage of Sherry and NH is valid under Pennsylvania law.  Accordingly, the name change is likewise valid under Pennsylvania law. 

BACKGROUND

Sherry seeks spousal benefits on the record of the NH, whom she married in a “self-uniting” ceremony on October 22, 2011 in Orangeville, Pennsylvania.  Both were previously married to others and submitted proof of divorce. They also submitted a copy of their Certificate of Marriage, executed pursuant to a Declaration of Authorization dated

October 20, 2011 issued by the Clerk of the Orphans’ Court, Columbia County, Pennsylvania, and a copy of their wedding announcement. The Certificate of Marriage contains the signatures of Sherry and NH as well as two witnesses.  Sherry also answered the agency’s questions in a Statement of Claimant or Other Person, explaining that the wedding ceremony was “self-uniting;” that three individuals were in attendance other than the bride and groom; and that the parties recited vows and exchanged rings. She also confirmed that neither she nor NH were Quakers, nor were they part of any other religious sect.  NUMI records show a change of name for Sherry.

DISCUSSION

Since common law marriage was prospectively abolished in Pennsylvania in 2005, ^[6] a valid Pennsylvania marriage requires a license and a solemnizing ceremony with witnesses. Therefore, the issue that must be addressed is whether Sherry and NH’s solemnizing ceremony was adequate under Pennsylvania law even though it was not conducted by a third-party authorized to perform marriages in Pennsylvania, and even though the ceremony had no relationship to a religious practice.  The best reading of Pennsylvania law is that the self-uniting ceremony was adequate to render the marriage valid.

The issue of the ceremony and the license are somewhat intertwined, because Pennsylvania provides for a specific form of license for self-uniting marriages, on the one hand, and a separate form of license for marriages conducted by authorized third parties, on the other. Under Pennsylvania’s Marriage Act, 23 Pa. Con. Stat. Ann. § 1101, et. seq., a marriage license may issue from any county in the Commonwealth for a ceremony that takes place anywhere in the Commonwealth, 23 Pa. Con. Stat. Ann. §§ 1104, 1301(b); the county official shall issue the license if it appears from properly completed applications on behalf of each of the parties that there is no legal objection to the marriage. 23 Pa. Con. Stat. Ann. § 1307. 

Although the primary form of license is crafted to permit a third party authorized by law to solemnize the applicants’ marriage within the specified (60 day) time period, 23 Pa. Con. Stat. Ann. § 1310, Pennsylvania law also provides for a second form of license for cases in which “the parties intend to solemnize their marriage by religious ceremony without officiating clergy.” 

23 Pa. Con. Stat. Ann. § 1502. In such cases, the Clerk of the Orphans’ Court issues a Declaration of Authorization attesting that legal evidence was furnished that satisfied the Clerk that there was no legal impediment to the marriage. 23 Pa. Con. Stat. Ann. § 1502(a).  The Declaration attaches two certificates, to be executed after the ceremony (and one copy recorded), in which the parties to the marriage certify that they united themselves in marriage in the stated Pennsylvania location. 23 Pa. Con. Stat. Ann. § 1502(b). The certificates are to be countersigned, as well, by two witnesses who certify that they were present at the solemnization ceremony. Id. 

In this case, Sherry has presented an executed Certificate of Marriage containing (1) a Declaration of the Clerk of the Orphans’ Court attesting that he was satisfied there was no legal impediment to the parties’ marriage and providing the license number he assigned, and (2) an executed certification, signed by Sherry and NH, stating that the parties united themselves in marriage on October 22, 2011; specifying the location of the marriage ceremony; and containing the signatures of two witnesses to the solemnization ceremony. The self-uniting marriage, therefore, was licensed and certified in accordance with Pennsylvania law.

While the form of license itself makes no reference to any particular form of self-uniting ceremony and, in particular, makes no reference to the religious nature of a self-uniting ceremony, the authority for issuance of the self-uniting Declaration of Authorization does reference a religious ceremony.  The statute states that a Declaration of Authorization is issued for marriages in which the “parties intend to solemnize their marriage by religious ceremony without officiating clergy.” 23 Pa. Con. Stat. Ann. § 1502(a). 

Also relevant is Section 1503, “Persons qualified to solemnize marriages,” which enumerates those third parties who are authorized to solemnize marriages (including Commonwealth judges and retired judges, Pennsylvania-based federal judges, mayors of cities or boroughs of the Commonwealth, and ministers, priests, and rabbis of any regularly established church or congregation). 23 Pa. Con. Stat. Ann. § 1503(a). Unlike most states, Pennsylvania law separately provides for ceremonies under the rules of religious organizations (such as Quakers) that do not utilize ministers or other leaders.  Section 1503(b) provides that “[e]very religious society, religious institution or religious organization in this Commonwealth may join persons together in marriage when at least one of the persons is a member of the society, institution or organization, according to the rules and customs of society, institution or organization.” 23 Pa. Con. Stat. Ann. § 1503(b). Sections 1502(a) and 1503(b) thus contain references to a religious component.

On the other hand, the Certificate of Marriage provision for self-uniting marriages makes no reference to a religious ceremony. Section 1504(b), “Marriages performed by parties,” states: “If the marriage was solemnized by the parties themselves, the original certificate shall be signed by the parties to the marriage, attested by two witnesses and retained by the parties contracting the marriage. . . .” 23 Pa. Con. Stat. Ann. § 1504(b). And the Certificate of Marriage itself, as described in 23 Pa. Con. Stat. Ann. § 1502(b) and submitted by Sherry , likewise makes no reference to a religious ceremony. 

The Marriage Act thus arguably creates some ambiguity about whether there is a required religious component for self-uniting marriage ceremonies. As explained below, however, courts have read the Marriage Act to authorize self-uniting ceremonies regardless of whether or not the ceremony is conducted pursuant to the customs of a religious organization.

In 2007, the American Civil Liberties Union (ACLU) brought suit in federal court on behalf of Plaintiffs Mary and David , whose request for a self-uniting marriage license had been denied by the Register of Wills for Allegheny County. ^[7] When Plaintiffs requested a self-uniting marriage license, the Register inquired as to whether either was a member of a religious organization that had no officiantes or clergy; the Register denied Plaintiffs a self-uniting license when they answered in the negative. The ACLU sought a temporary restraining order (TRO) on the ground that the Register’s interpretation of the Marriage Act as authorizing a self-uniting marriage license for couples marrying in religious ceremonies pursuant to the customs of certain religious organizations, but not authorizing such licenses for couples wishing to marry themselves without a link to such religious organizations, violated the Establishment Clause of the United States Constitution.  Honorable Joy Flowers Conti, United States District Judge, convened a hearing on the record. ^[8]   She explained that in light of the Establishment Clause issues that the case presented, it was her duty to construe the statute, if possible, to avoid a constitutional question. ^[9]   She found that it was a longstanding understanding that Pennsylvania permitted a statutory marriage where the couple self-unites without a religious ceremony. ^[10]  . While a contrary interpretation might be within the “realm of possibility,” ^[11]   and while the parties might appropriately seek a more definitive interpretation of the statute from the state courts, in her view, the statute and the practices under the statute were sufficiently clear. ^[12]   She issued a TRO holding that “[s]elf-uniting marriage licenses have been issued in Pennsylvania under the [Marriage Act] for decades, without regard to the religious or nonreligious affiliations of the parties seeking the license.” ^[13]   K~ Judge Conti directed the Register to issue a marriage license to Plaintiffs forthwith. ^[14]  

The record in K~ revealed that at the time the parties sought a TRO, the practices among the various county Registers were “haphazard,” with some counties routinely granting self-uniting marriage licenses regardless of any religious component and others not. ^[15]  

Judge C~’s decision was in the nature of a TRO rather than a final decision on the merits, and although she invited the parties to submit post-TRO briefing as to whether the federal court should abstain from adjudicating the merits while the parties pursued the matter in state court, ^[16]   counsel for the Allegheny County Register opined that no such further proceedings would be necessary because the Register intended to “comply with [the Court’s] order from this day forward.” ^[17]

After the federal court issued the TRO in K~ in September 2007, we can find no evidence of further legal challenges. Moreover, the practices of the various Pennsylvania counties with respect to issuing self-uniting marriage licenses seems to have largely settled after K~, with the Registers issuing self-uniting marriage licenses to couples without regard to religious affiliation.  For example, the Montgomery County website states that an applicant for a marriage license does not need a licensed minister or priest to perform the marriage ceremony, adding that

“Pennsylvania has a provision in the Marriage Act that recognizes a marriage performed without officiating clergy. This is referred to as a self-uniting license. Two witnesses are required.” ^[18]  

In order to obtain a self-uniting license, the Montgomery County website further explains, one simply “inform[s] the clerk that you want a self-uniting license at the time you apply.” ^[19]    The Chester County website is similar, but is accompanied by a warning of sorts. It confirms that an applicant for a marriage license does not need a minister, judge or other officiant to perform the marriage ceremony. ^[20]   It does, however, refer the reader to a policy statement indicating that if a person chooses to be married by someone other than those identified in 23 Pa. Con. Stat. Ann. § 1503, the burden of proof regarding legality is on the individuals should a future issue arise. Other county websites also contain a “disclaimer of liability” with respect to their officials’ issuance of licenses to persons who marry in a ceremony conducted by a person other than those identified in Section 1503. ^[21]  The county websites thus suggest that the practice currently is to provide self-uniting licenses without regard to religious affiliation, but also to insulate the issuing officials from liability should the ceremony subsequently be found not to comport with legal requirements. ^[22]   Thus, the post-K~ landscape, while not entirely pellucid, is nonetheless increasingly uniform. 

State court decisions further reinforce the principle that religious ceremonies are not required for a valid self-uniting marriage.  The state court ruling that prospectively abrogated common law marriages in Pennsylvania described Pennsylvania statutory law as authorizing couples to “marry themselves.” See PNC Bank Corp. v. Workers’ Compensation Appeal Board, 831 A.2d 1269, 1280 (Pa. Commw. 2003). In PNC Bank, the Commonwealth Court explained that once a license is obtained under the Marriage Act, the marriage may be solemnized by enumerated classes of third parties or, in the “alternative, couples have the option of solemnizing their marriage themselves after obtaining certification that no legal impediment to marriage exists.” Id. (citing 23 Pa. Con. Stat. Ann. § 1502). The “only differences,” the Commonwealth Court stated, between common law marriage (which it was abrogating) and self-uniting licensed marriages were the “requirement of witnesses and the licensing procedure.” Id. (emphasis supplied). By stating that the “only differences” between self-uniting statutory marriages and common law marriages were the “requirement of witnesses and the licensing procedure,” the Commonwealth Court in PNC Bank implicitly rejected the notion that religious elements were necessary for self-uniting marriages to be valid under the Marriage Act: common law marriages required an exchange of vows but not necessarily in a religious setting. See generally, Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020-21 (Pa. 1998). 

Likewise, as Judge Conti found in K~, ^[23]  authoritative treatises interpreting Pennsylvania law also support the view that self-uniting marriage ceremonies need not be conducted pursuant to the customs of particular religious organizations.  For example, the 2012 version of the Pennsylvania Law Encyclopedia states that there is “no necessity that the ceremony be performed by or in the presence of any religious or civil officer, and the Marriage Act permits solemnization by the parties themselves[.]” ^[24]  Thus, the weight of Pennsylvania authority supports Judge C~’s conclusion that self-uniting marriages are authorized by the Marriage Act regardless of the secular or religious nature of the solemnization ceremony. ^[25]  

Finally, to the extent the foregoing interpretation of the statute remains subject to challenge in the absence of a Pennsylvania Supreme Court ruling on point, we believe it is highly unlikely that the Supreme Court, if confronted with a challenge in the future, would declare any marriage that proceeded with a self-uniting license and a duly witnessed secular solemnization ceremony to be invalid.  The Commonwealth has a strong public interest in not invalidating ceremonial marriages entered into in good faith by the parties. See, e.g., Leroy Roofing Co. v. Workmen’s Compensation Appeal Bd., 327 A.2d 876, 878 (Pa. Commw. 1974).  Once the district court ruled in Knelly and the Allegheny County Register committed, on the record, to issue self-uniting marriage licenses from that point forward without respect to any religious affiliation of the applicants, it is difficult to imagine the Supreme Court acting to invalidate marriages ? presumably somewhat numerous ?  that proceeded in reasonable reliance on such licenses.  The public interest in the validity of such marriages would seem to be particularly difficult to overcome in the present situation, where county officials certified that there was no legal impediment to the marriage and the risk of fraud or confusion as to whether the parties intended to become married is negligible, since the marriage was licensed and witnessed. 

CONCLUSION

It is our opinion that under Pennsylvania law, the marriage between Sherry and NH is valid. Since the marriage is valid, the name change is appropriate as well. 

Eric P. Kressman

Regional Chief Counsel, Region III

By: Jordana Cooper

Assistant Regional Counsel

Under limited circumstances, Pennsylvania law recognized the existence of a common-law marriage where a ceremonial marriage was void because of a legal impediment. The evidence submitted would not constitute clear and convincing evidence to establish a common-law marriage between the insured and claimant. There is no evidence as to whether the number holder was aware that the claimant was still married at the time of their marriage. A deemed marriage does not exist since the claimant did not marry in good faith.

QUESTION PRESENTED

You requested our opinion as to whether a valid common-law marriage arose under Pennsylvania law between Lawrence , the Number Holder (NH), and Maureen upon the death of Norman’s , first husband to whom she was still married when she ceremonially married the NH.

SUMMARY

Based upon our review of the facts of this case and our research of relevant Pennsylvania statutes and case law, we have determined that a Pennsylvania court applying the state's law on common-law marriage would likely find that the evidence submitted to date would not constitute clear and convincing evidence sufficient to establish a common-law marriage between the Number Holder and Maureen; however, a valid common-law marriage could be established with the submission of additional evidence.

BACKGROUND

According to the information you provided, Maureen married Norman on August 7, 1965 in McKeesport, Pennsylvania. They were never divorced. On January 6, 1992, Maureen then ceremonially married the NH in West Mifflin, Pennsylvania, despite the fact that her existing marriage to Norman constituted a legal impediment to her marrying the NH.

From the information provided, Maureen was aware at the time that she ceremonially married the NH that she had never divorced Norman. We do not know whether the NH was aware that Maureen was still married to Mr. S~ at the time of the NH's ceremonial marriage to Maureen. Two years and two months after Maureen ceremonially married the NH, Mr. S~ died.

DISCUSSION

Generally, if parties enter into a ceremonial marriage that was void because of a legal impediment, a common-law marriage may later come into being in some states if: (a) the impediment is later removed and (b) the parties continue to live together as husband and wife after removal of the impediment. GN 00305.070(1). State laws vary, however, on the requirements needed to establish a common-law marriage after removal of the legal impediment to marriage.

Pennsylvania law prospectively abolished common-law marriages effective January 1, 2005. For common-law marriages existing prior to 2005, however, Pennsylvania law, under limited circumstances, recognized the existence of a common-law marriage where a ceremonial marriage was void because of a legal impediment.

The Marriage Law of 1953, enacted on January 1, 1954, and in effect at the time of Maureen void ceremonial marriage to the number holder, stated:

If a person, during the lifetime of a husband or wife with whom a marriage is in force, enters into a subsequent marriage pursuant to the requirements of this act, and the parties thereto live together thereafter as husband and wife, and such subsequent marriage was entered into by one or both of the parties in good faith in the full belief that the former husband or wife was dead, or that the former marriage has been annulled or terminated by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by death of the other party to the former marriage, or by annulment or divorce, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and immediately after the removal of such impediment. 48 P.S. § 1-17.

Thus, where only one party to a ceremonial marriage knew it was void because of an impediment, the marriage was considered legal by statute without a new agreement to marry if the parties continued to live together as husband and wife as of the date of removal of the impediment. See Leroy Roofing Co. v. Workmen's Compensation Appeal Bd., 327 A.2d 876, 877-78 (Pa. Cmwlth. 1974) (validating a marriage under 48 P.S. § 1-17 where a second wife was unaware at the time of her wedding that her husband was already married, despite the second wife's inability to satisfy all of the requirements of common marriage after her husband divorced his first wife).

Where both parties knew the marriage was void because of an impediment and therefore entered into the void ceremonial marriage in bad faith, however, courts will presume that the parties continued to live together unmarried even after the impediment is removed, absent clear and convincing evidence of a change of status required to rebut this presumption. In re G~' Estate, 378 A.2d 307, 474 (Pa. 1977). A common-law marriage may thereafter be created by the parties uttering words in present tense with intent to establish a marital relationship. Commonwealth v. Sullivan, 398 A.2d 978, 980 (Pa. 1979). No marriage is created if words are used in the future tense, and cohabitation and reputation cannot establish marriage if the requisite "contract" was not entered into. Id.

From the information received, Maureen was aware of the legal impediment to her marriage to the NH. We have no information as to whether the NH was aware that Maureen was still married to Mr. S~ at the time the NH married Maureen.

We recommend obtaining a Statement of Marital Relationship from two blood relatives of the NH addressing whether he was aware of the legal impediment to his ceremonial marriage to Maureen at the time of their wedding. GN 00305.065(2)(a). If the NH was unaware of Maureen existing marriage to Mr. S~ at the time the NH married Maureen, the agency should also obtain corroborating evidence that the NH and Maureen continued to live together after Mr. S~'s death, as husband and wife, until the NH's death. Such evidence could include mortgage/rent receipts, insurance policies, medical records, and bank records that would establish that the couple considered and held themselves out as husband and wife.

GN 00305.065(3)(e).

If the NH was aware of Maureen existing marriage to Mr. S~ at the time the NH married Maureen, a subsequent common-law marriage must then be proven by evidence that the NH and Maureen made a new agreement to marry after the removal of the impediment, i.e., after the death of Mr. S~ on March 1, 1994. In re G~'s Estate, 379 A.2d at 474. The agency should then obtain a Statement of Marital Relationship from two blood relatives of the NH to determine if the NH and Maureen ever made a new agreement to marry after Mr. S~'s death. If no new agreement to marry was made, a valid common-law marriage cannot be established. GN 00305.065(2)(a).

We also note that no deemed marriage could exist between the NH and Maureen under the Agency's regulations. Pursuant to 20 C.F.R. § 404.346 and GN 00305.055(A)(1), for an entitlement to widow's benefits, a deemed marriage is created when the claimant's marriage to the worker would have been valid except for a legal impediment. However, for the agency to establish a deemed marriage, the claimant is required to have gone through the marriage ceremony in good faith with no knowledge, at the time of the ceremony, of any legal impediment that would invalidate the marriage. 20 C.F.R. § 404.346(a), GN 00305.055(A)(1)(b). Because the evidence demonstrates that Maureen knew of her existing marriage to Mr. S~ when she married the NH, she did not marry the NH in good faith and, therefore, her relationship with the NH cannot be considered a deemed marriage.

CONCLUSION

Accordingly, we recommend that the Agency take reasonable steps to obtain additional evidence, including, but not limited to that suggested above, prior to making a decision in this case. Corroborative evidence of the NH was unaware of Maureen existing marriage to Mr. S~ at the time of his ceremonial marriage to Maureen, coupled with evidence that the NH and Maureen continued to live together as husband and wife after Mr. S~'s death, would likely constitute clear and convincing evidence of a legal marriage under the Pennsylvania statute from the relevant period. If the NH was aware of Maureenlegal impediment at the time he married Maureen, corroborative evidence of a new agreement to marry between the NH and Maureen, made after Mr. S~'s death, coupled with evidence that the NH and Maureen thereafter lived together as husband and wife, would likely constitute clear and convincing evidence of a common-law marriage.

Eric P. Kressman

Acting Regional Chief Counsel,

By: Stephen T. Giacchino

Assistant Regional Counsel

The NH' s Islamic marriage to the claimant does not constitute a valid ceremonial marriage under Pennsylvania law. However, further development is necessary to determine whether the marriage is a valid marriage under Pennsylvania common law.

INTRODUCTION

This is in response to your request for our advice whether the Islamic marriage between the Number Holder and Katera is a valid ceremonial marriage under Pennsylvania law. We have also considered whether the marriage is a valid marriage under Pennsylvania common law.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Pennsylvania law as it pertains to marriage. It is our opinion that Katera’s marriage to the Number Holder does not constitute a valid ceremonial marriage under Pennsylvania law. It is our further opinion, however, that further development is necessary to determine whether Brian and Katera’s marriage is a valid marriage under Pennsylvania common law.

BACKGROUND

The Number Holder, a resident of the Commonwealth of Pennsylvania, became entitled to disability benefits effective December 2000. In his application for benefits filed on February 14, 2001, he indicated that he had married Katera on February 19, 1998.

Brain filed an application for wife's benefits on January 7, 2004. In her application, she indicated that she had married the Number Holder on February 27, 1998, in Pennsylvania.

The Number Holder completed a Marriage Certification on January 9, 2004, in which he indicated that his marriage to Katera was performed by a clergyman. He also indicated that he had a prior marriage to Gail in July 1992 which ended on September 26, 1996. Their Divorce Decree dated September 26, 1996, has been submitted as evidence.

Katera previously was married to Poindexter , from whom she was divorced on January 15, 1998, in Pennsylvania. Their Divorce Decree has been submitted as evidence.

The Number Holder and katera's Islamic Marriage Certificate has been submitted as evidence of their relationship. The marriage certificate indicates that they were married on February 26, 1998, in Pennsylvania. The Number Holder and Katera stated that they never secured an application for a marriage license from Pennsylvania or any other legal source.

Katera has submitted an insurance policy from State Farm Life Insurance Company dated September 6, 1998. In this policy, under which she is the insured, the Number Holder is named as the designated beneficiary and has been identified as her spouse.

The Number Holder was insured with Metropolitan Life Insurance Company on April 2, 2001. In this policy, he named Katera as the designated beneficiary and identified her as his spouse.

DISCUSSION

To determine a claimant's relationship as an insured's spouse, the Commissioner looks to the law of the state where the insured had a permanent home when the claimant applied for spousal benefits. 20 C.F.R. § 404.345 (2003). If the claimant and the insured were validly married under state law at the time the claimant applies for wife's benefits, the relationship requirement will be met. 20 C.F.R. § 404.345 (2003). In the present case, the Number Holder was a resident of the Commonwealth of Pennsylvania when Katera applied for spousal benefits. Therefore, the law of Pennsylvania applies.

Two forms of marriage are recognized in Pennsylvania, namely, ceremonial, which involves a marriage performed by a religious or civil authority with the usual ceremony or formalities, and common law. Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1019 (1998). In the present case, They both marriage to the Number Holder is a ceremonial marriage because it allegedly was performed by a religious authority with the usual ceremony and formalities.

Under Agency policy, the preferred proof of a ceremonial marriage includes one of the following:

1. a. 

   A copy of a public record of marriage, certified by the custodian of the record or by an authorized SSA, State Department, or VA employee;

2. b. 

   A copy of a religious record of marriage, similarly certified;

3. c. 

   The original certificate of marriage; or

4. d. 

   A foreign record which shows that the individuals are married. POMS GN 00305.020. An original certificate of marriage does not include a souvenir certificate of marriage.

Here, Katera has presented no evidence to satisfy the Agency's requirement for proof of a valid ceremonial marriage. For example, there is no evidence of a public record of marriage, a religious record of marriage, or a foreign record of marriage. Although she has presented an Islamic Marriage Certificate, this marriage certificate appears to be a souvenir certificate and not an original certificate of marriage. POMS GN 00301.050. A souvenir certificate is an original document given to an individual at the time of a ceremonial event that is not a custodian-issued certification of a record. POMS GN 00301.050. Katera's Islamic Marriage Certificate does not contain a state or county seal or certification, suggesting that it is not a certification of a record. Moreover, both the signature line certifying that the certificate is a true extract from the Marriage Register, and its location, have been left blank.

Even if Katera's Islamic Marriage Certificate was sufficient proof of a ceremonial marriage under Agency policy, it would not satisfy the requirements of a valid marriage under Pennsylvania law. Pennsylvania requires that a marriage license be obtained in order to establish a valid marriage. 23 Pa. Con. Stat. § 1301. Here, Katera has indicated that she and the Number Holder have not obtained a state marriage license.

We have also considered whether Katera can establish that she and the Number Holder entered into a valid marriage under the common law of Pennsylvania. Under Pennsylvania law, a common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife be thereby created. Commonwealth v. Gorby, 588 A.2d 902, 907 (1991). A common law marriage contract does not require any specific form of words, and all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time. Estate of G~, 417 A.2d 168, 171 (1980). Here, the existence of the Islamic Marriage Certificate provides evidence in support of a finding that Katera and the Number Holder exchanged words in the present tense with the purpose of creating a legal relationship of husband and wife. However, under Agency policy, preferred evidence of a common law marriage includes completion of form SSA-754-F4 (Statement of Marital Relationship) from each spouse, and of form SSA-753 (Statement Regarding Marriage) from a blood relative of each spouse. POMS GN 00305.065. There is no evidence here that Katera or the Number Holder have submitted such forms as proof of their common law marriage. For these reasons, it is our opinion that further development is necessary to determine whether Katera and the Number Holder may establish a valid common law marriage under Pennsylvania law.

CONCLUSION

For the reasons stated above, it is our opinion that, under the controlling law of the Commonwealth of Pennsylvania, the Islamic marriage between Katera and the Number Holder is not a valid ceremonial marriage. It is also our opinion that further development is necessary to determine whether Katera and the Number Holder have established a valid marriage under Pennsylvania common law.

Patricia M. Smith

Acting Regional Chief Counsel

By:______________________

Anne Van Scheven

Assistant Regional Counsel