QUESTION PRESENTED
               In a case governed by Alabama law, has a claimant presented sufficient evidence to
                  show that she is the surviving widow of number holder?
               
               Short Answer
               As discussed in greater detail below, we believe that Claimant has presented sufficient
                  evidence to show that she is the number holder's surviving spouse either through a
                  valid ceremonial or common-law marriage.
               
               BACKGROUND
               The facts as presented are that Mary J. B~ (Claimant) filed an application for survivor
                  benefits as the widow of Francis B~, the number holder (NH), who died in 1959 in the
                  State of Alabama. Claimant is an eighty-six year old Supplemental Security Income
                  (SSI) recipient with a representative payee; and the Agency employee that interviewed
                  her observed that she had a poor memory and seemed confused.
               
               Claimant alleges that she and NH had a ceremonial marriage in March 1945 in Mobile,
                  Alabama. Claimant does not remember the name of the official who performed the ceremony,
                  and the witnesses are dead. Claimant did not have a copy of the marriage license,
                  and the Agency could not locate a copy after a reasonable search through state records.
                  There were neither pictures taken at the ceremony nor a wedding announcement published
                  in the newspaper. As proof of the marriage, Claimant provided several documents that
                  listed her as NH's spouse: NH's death certificate, a mortgage deed, and two union
                  documents.
               
               Prior to their alleged marriage, Claimant had been married once; and NH had been married
                  twice. The Agency obtained copies of the marriage certificates for Claimant's prior
                  marriage and one of NH's prior marriages. The Agency was unable to locate divorce
                  decrees showing that either Claimant's or NH's prior marriages ended; however, the
                  Alabama Office of Vital Records does not maintain divorce records prior to 1950. Claimant
                  believed that she divorced her first husband, Stevenson T~, in 1943. When Mr. T~ applied
                  for retirement insurance benefits, he indicated that he divorced Claimant on October
                  1, 1948. The Agency also obtained birth certificates for the children of Claimant
                  and/or NH: (1) Dorothy T~, born 8/6/44 to Stephen T~ and Mary J. B~; (2) Matthew B~,
                  born 3/28/45 to Francis B~ and Earnestine G~; (3) Edward B~, born 3/24/46 to Francis
                  B~ and Mary B~; (4) Johnny L. B~, born 9/12/47 to Francis B~ and Mary J. B~.
               
               Authority
               Under the Social Security Act (Act), the widow of a fully-insured individual is entitled
                  to benefits upon attaining age sixty. See section 202(e)(1)(B)(i) of the Act, 42 U.S.C.
               
               § 402(e)(1)(B)(i). Because Claimant is the mother of two of NH's children, she would
                  be his "widow" if she establishes that she is his "surviving wife." Section 216(c)(1)
                  of the Act, 42 U.S.C. § 416(c)(1).
               
               There are two ways that Claimant may qualify as NH's widow, and thus be eligible for
                  survivor benefits under the Act. An applicant may qualify as the legal widow of an
                  insured individual if "the courts of the State in which he was domiciled at the time
                  of death, . . . would find that such applicant and such insured individual were validly
                  married at the time . . . he died." Section 216(h)(1)(A)(i) of the Act. An applicant
                  who is not the "legal widow" of the insured individual still may be eligible for benefits
                  as a "deemed widow" if such applicant in good faith went through a marriage ceremony
                  with such individual resulting in a purported marriage between them which, but for
                  the legal impediment not known to the applicant at the time of such ceremony would
                  have been a valid marriage, and such applicant and the insured individual were living
                  in the same household at the time of [his] death . . . .
               
               Section 216(h)(1)(B)(i) of the Act.
               Analysis
               Claimant alleges that she and NH were married in a ceremonial marriage in March 1945
                  and remained married until his death in 1959. "The presumption of ceremonial marriage
                  is strong, especially where supporting evidence shows that the parties lived together
                  as husband and wife for many years, and it can be rebutted only by convincing evidence
                  to the contrary."  Program Operations Manual System (POMS) GN 00305.030(A). Although Claimant was unable to produce preferred proof such as a copy of a public
                  or religious record of marriage or an original certificate of marriage, as outlined
                  in POMS GN 00305.020, "the absence of a record in the place where the marriage is alleged to have occurred
                  will not in itself defeat the presumption." POMS GN
                     00305.030(A).
               
               We first examined whether Claimant presented sufficient supporting evidence to support
                  a presumption of ceremonial marriage to NH. It does not appear that Claimant offered
                  sufficient secondary proof of marriage to meet the requirements of POMS GN 00305.025. Although Claimant provided a description of the marriage ceremony as outlined in
                  POMS GN 00305.025(B)(1), she is also required to provide at least one piece of secondary evidence of
                  the ceremony. See POMS GN
                     00305.025(B)(1). Secondary evidence may include: (1) a signed statement from the clergyman
                  or official who performed the ceremony; (2) statements of witnesses to the marriage
                  ceremony; (3) a newspaper account of the wedding; (4) statements from at least two
                  persons who have knowledge that a ceremony took place; (5) other probative evidence
                  that a ceremony took place, such as photos.  See POMS GN 00305.025(B)(2). In this case, there is no acceptable secondary evidence of the marriage ceremony.
               
               Even though the Agency was unable to obtain preferred or secondary proof of marriage,
                  the Agency may apply the presumption of ceremonial marriage where supporting evidence
                  shows that the parties lived together as husband and wife for many years. See POMS GN 00305.030(A). The following evidence may support a presumption of a marriage:
               
               * Excerpts from naturalization certificates, deeds, immigration records, insurance
                  policies, or passports which indicate the parties as husband and wife;
               
               * Records which show a marital relationship such as business, employment, bank, fraternal,
                  school, labor, church, or other records;
               
               * Purchase agreements, contracts, or leases executed by both parties, letters to both
                  parties, or letters from one party to the other indicating a marital relationship.
               
               POMS GN 00305.030(B)(2)(a). Claimant presented several pieces of supporting documentation. There are
                  birth certificates showing that Claimant and NH had two children in 1946 and 1947,
                  respectively. Claimant and NH are listed as husband and wife on mortgage documents
                  dated November 9, 1955. Additionally, Claimant is listed as NH's wife on two forms
                  from the United Mine Workers of America. Finally, NH's death certificate lists Claimant
                  as his surviving spouse. This evidence appears sufficient to support a presumption
                  of ceremonial marriage under POMS GN 00305.030.
               
               We also considered whether Claimant and NH may have created a common-law marriage.
                  Alabama recognizes common-law marriage and treats it as "a co-equal, alternate method
                  of validating the connubial union of two people." Piel v. Brown, 361 So.2d 90, 93 (Ala. 1978). The elements of a valid common-law marriage in Alabama
                  are: (1) the capacity to marry; (2) present agreement or mutual consent to enter into
                  the marriage relationship; (3) public recognition of the existence of the marriage;
                  and (4) cohabitation or mutual assumption openly of marital duties and obligations. 
                     See Adams v. Boan, 559 So.2d 1084, 1086 (Ala. 1990). The evidence suggests that Claimant and NH agreed
                  to enter a marriage relationship. The fact that the couple had two children together
                  and purchased a home as man and wife provides evidence of cohabitation.
               
               In describing the manner in which a couple must live to gain public recognition, the
                  Adams court noted that "it may be made in any way which can be seen and known by men, such
                  as living together as man and wife, treating each other in the presence of third parties
                  as being in that relation, and declaring the relation in documents executed by them
                  whilst living together, such as deeds, wills, and other formal instruments." Id. at 1088 (quoting Maryland v. Baldwin, 112 U.S. 490, 495 (1884)). In Hall v. Duster, 727 So.2d 834, 837 (Ala. Civ. App. 1999), the court found a funeral program listing
                  the putative husband as the son-in-law of his putative wife's father to be "clearly
                  relevant" to the issue of whether the parties were recognized as husband and wife.
                  As previously noted, Claimant presented various documents listing her as NH's wife,
                  including mortgage documents, birth certificates, union documents, and his death certificate.
               
               There is certain evidence to suggest that Claimant may not have had the capacity to
                  marry NH in March 1945. In this regard, Claimant's first husband, Mr. T~, indicated
                  in his application for retirement benefits that he divorced her on October 1, 1948.
                  Assuming that he provided the correct date of the divorce, Claimant would not have
                  been legally competent to marry NH in 1945. Alabama, however, recognizes a presumption
                  of actual marriage after the impediment to marriage is removed:
               
               where parties who are competent to marry enter an illicit relation, with the manifest
                  desire and intention to live in a marital union, rather than in a state of concubinage,
                  and the obstacle to their marriage is subsequently removed, their continued cohabitation
                  raises a presumption of an actual marriage immediately after the removal of the obstacle
                  and warrants a finding to that effect.
               
               Matthews v. Matthews, 67 So.2d 22, 24 (Ala. 1953). Because the evidence suggests that Claimant and NH
                  continued to live together as husband and wife after October 1, 1948, their common-law
                  marriage would have been legally valid after that date.
               
               The existence of NH's prior marriages appears insufficient to rebut the presumption
                  of the validity of his most recent marriage to Claimant. The presumption "that a marriage
                  is legal and valid in all respects is one of the strongest known to the law" and "attaches
                  with full force to the latest marriage, the reason being that the presumption of innocence,
                  morality and legitimacy will counterbalance and preponderate against the presumption
                  of the former relations." Faggard v. Filowich, 27 So.2d 10, 12 (Ala. 1946) (quoting Sloss-Sheffield Steel & Iron Co. v. Alexander, 3 So.2d 46, 48 (Ala. 1941)).
               
               Claimant maintains both she and NH were divorced from their prior spouses at the time
                  of their marriage. Claimant does not have the burden of showing that she was "legally
                  competent" to contract marriage with NH. See Matthews, 67 So.2d at 23. Instead, the burden is on the party attacking the validity of the
                  most recent marriage to "not only establish the fact of the previous marriage, but
                  that such previous marriage has not been dissolved by divorce or death." Faggard, 27 So.2d at 12. Thus, Claimant is not required to affirmatively establish that either
                  her or NH's prior marriages dissolved by divorce or death. To attack the latest marriage,
                  the Agency would be required prove that the prior marriages had not ended. In describing
                  this burden, the Alabama Supreme Court stated that party attacking the marriage must
                  produce "legal evidence that the divorce courts of all the counties in the state which
                  would have jurisdiction of such a suit did not have a record of a decree of divorce."
                   Vinson v.
                     Vinson, 69 S0.2d 431, 434 (Ala. 1953). Given that the Alabama Office of Vital Records indicated
                  that it does not maintain divorce records prior to 1950, it would appear that the
                  Agency cannot carry its burden.
               
               CONCLUSIONS
               As submitted, the facts suggest that Claimant is entitled to survivor's benefits as
                  NH's surviving spouse. Claimant presented evidence such as mortgage documents, birth
                  certificates, and union documents sufficient to establish the presumption of ceremonial
                  marriage where supporting evidence shows that the parties lived together as husband
                  and wife for many years under POMS GN 00305.030 and Alabama caselaw. Alternatively, this evidence appears sufficient to suggest the
                  existence of a valid common-law marriage under state law. Moreover, given that Alabama
                  does not maintain divorce records prior to 1950, it would be impossible to either
                  prove that either NH's or Claimant's prior marriages had not ended in divorce or death.
                  As a result, there is support under Alabama caselaw to apply the presumption of the
                  validity of the last marriage.
               
               Mary Ann ~
Regional Chief Counsel
By: ______________ 
 Joseph P. ~
 Assistant Regional Counsel