TN 7 (01-10)
PR 02720.042 Pennsylvania
A. PR 10-030 Number Holder: Sarah J. E~ Is An Affidavit Of Common-Law Marriage Acceptable Documentation To Support The Number Holder’s Request For Name Change?
DATE: November 23, 2009
An affidavit of Common-Law Marriage submitted by NH is not in and of itself sufficient evidence of a valid common-law marriage to support a name change. Consistent with Agency policy, further factual development is warranted to support the request for name change. In establishing whether the common-law marriage factors are met, the Agency’s preferred sources of proof include 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
QUESTION PRESENTED AND BRIEF ANSWER
Question: Is the Affidavit of Common-Law Marriage presented by Number Holder Sarah J. E~ sufficient proof under Pennsylvania law to support a name change? Answer: By itself, no. Although the Affidavit of Common-Law Marriage provides evidence of a common-law marriage under Pennsylvania law, it is not dispositive of a valid common-law marriage. Additional documentation is necessary to support the request for name change.
On October 29, 2009, Number Holder (NH), Sarah J. E~, filed an SS-5 to change her name from Sarah J. E~ to Sarah J. G~. To support the name change, the NH submitted a notarized document dated November 12, 1997, entitled “Affidavit of Common-Law Marriage” as proof of her marriage to Howard F. G~, Jr. The Affidavit of Common-Law Marriage contains signatures attributed to both the NH and Mr. G~. It states that the parties entered into the relationship of common-law husband and wife on November 12, 1997, and that the parties had the intent to be married, evidenced by words spoken in the present tense.
In addition to the Affidavit of Common-Law Marriage, NH also submitted her birth certificate, issued in the name of Sarah J. E~, her social security card in the name of Sarah J. E~, a United States passport in the name of Sarah J. G~, and a Pennsylvania driver’s license in the name of Sarah J. G~. We are not aware of further documentation that the NH presented with her request.
We do not believe that Pennsylvania would find the Affidavit of Common-Law Marriage to be sufficient proof of a valid marriage to support a name change. Accordingly, we recommend that the Agency request additional proof. Agency policy provides that preferred evidence of common-law marriage includes completion of form SSA-754-F4 (Statement of Marital Relationship) from each spouse and form SSA-753 (Statement Regarding Marriage) from a blood relative of each spouse. See POMS GN 00305.065(1)(a). It is our opinion that the Agency should request such additional evidence.
The Intelligence Reform and Terrorism Prevention Act requires the Social Security Administration (Agency) to “establish minimum standards for verification of documents or records submitted by an individual to establish eligibility for an original or replacement social security card.” See Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7213(a)(1)(B). Pursuant to this directive, the Agency requires that “[a] legal document showing a name change or the basis of the name change (divorce, marriage, naturalization) must be submitted when the applicant requests an SSN card in a new name.” See Social Security Program Operations Manual System (POMS) Record Maintenance (RM) 00203.210(A)(2). Without a legal document showing a name change, the Agency’s records must continue to reflect the applicant’s legal name, i.e., the name on the birth certificate. See POMS RM 00203.210(A)(2).
“For a U.S. resident, a legal name change based on a U.S. marriage depends on the laws of the State where the marriage occurred.” See POMS RM 00203.210(B)(1). In all 50 states, a wife may take her husband’s last name as her new last name. See POMS RM 00203.210B(1)(a). In Pennsylvania, court approval is not required for a name change based on marriage.
See generally, 54 Pa.C.S.A. §§ 701-705; 67 Pa.Code § 85.1 (2009) (“actual name” for issuance of Pennsylvania driver’s license means, in “the case of a married person, the surname assigned to the person at birth, the surname of the other spouse or a hyphenated combination of both their surnames, whichever the person elects”).
The Commonwealth of Pennsylvania recognizes common-law marriages that were contracted between the parties on or before January 1, 2005. See 23 Pa.C.S.A.§ 1103 (2005). However, such marriages are disfavored. The party seeking to prove such a marriage bears a “heavy” burden to prove the marriage with “clear and convincing” evidence.
See Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020-21 (Pa. 1998); POMS GN 00305.075(C) (Pennsylvania). A common-law marriage in Pennsylvania 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 is created by that.” Staudenmayer, 714 A.2d at 1020. See POMS GN 00305.075(C) (Pennsylvania). The Affidavit of Common-Law Marriage submitted by NH provides evidence of such an exchange of words and an intention to be married: It states that on the day of its execution, the parties “had the present intent to be married, evidenced by words in the present tense uttered with a view and purpose of establishing the relationship of husband and wife.”
Nonetheless, although it provides evidence of the intent and exchange of words that is necessary to create a valid common-law marriage, we do not believe that the Affidavit of Common-Law Marriage, by itself, provides sufficient proof of a valid common-law marriage under Pennsylvania law. In some Pennsylvania cases, similar affidavits have been overcome by evidence of an actual lack of intent to be married. In Bell v. Ferraro, 849 A.2d 1233 (Pa. Super. 2004), the putative common-law wife filed for divorce, and the putative husband defended by contending there was no marriage. The putative wife presented an Affidavit of Common Law Marriage that had been signed by both parties, which the putative husband acknowledged. However, the putative husband testified that it was not in fact the parties’ intent to create a marriage. According to his testimony, the Affidavit was executed only to enable him to add plaintiff to his health insurance. The putative husband also presented documents dated subsequent to the Affidavit in which the parties represented themselves as having single status. In the view of the court, the Affidavit of Common Law Marriage was “admissible and probative evidence,” but it was not “irrebuttable evidence,” id. at 1235, and the husband’s testimony about the parties’ actual intent in executing the Affidavit effectively rebutted the contents of the Affidavit. The Superior Court affirmed the trial court’s decision that no common-law marriage had occurred. Notably, in the present situation, the evidence submitted by NH does not indicate whether the putative husband is deceased or is available to confirm (or deny) the marriage, and it appears that the Agency has no statement from him.
The evidence submitted by NH also fails to address other potential impediments to a valid common-law marriage in Pennsylvania. The evidence does not indicate, for example, whether one or both of the parties were already married to a third party as of November 12, 1997, the date of the purported common-law marriage (which would invalidate the common-law marriage). Furthermore, if it were the case that such an impediment to marriage existed as of November 12, 1997 (while NH and her purported common-law husband presumably were cohabitating), then even if the impediment had since been removed (i.e., if the third-party died or a divorce was obtained), Pennsylvania law would require proof of a new exchange of words sufficient to form a common-law marriage after the impediment was removed. This is because there is a presumption in Pennsylvania law that once a meretricious relationship is entered into, it continues as a meretricious relationship even after an impediment to a valid marriage is removed. Clear and convincing evidence is required to rebut this presumption. See In re Estate of Harold G~, 378 A.2d 307, 309 (Pa. 1977); In re Estate of Ada G~, 284 A.2d 742, 744 (Pa.1971); Int’l Painters and Allied Trades Indus. Pension Fund, 312 F.Supp.2d 697, 703 (E.D. Pa. 2004); POMS GN 00305.075(C) (Pennsylvania). The Affidavit of Common-Law Marriage submitted by NH does not address any of these issues.
Consistent with the heavy burden of proof that must be carried by a party claiming a common-law marriage in Pennsylvania, we have not located state statutes or regulations that provide that Pennsylvania accepts Affidavits of Common-Law Marriage similar to that presented here as sufficient evidence of marriage to support a name change. Thus, for example, to be eligible for subsidized child care in Pennsylvania, acceptable verification of identity includes a “[m]arriage license, divorce decree or court order for a name change.” 55 Pa. Code § 3041.69 (2009). Similarly, if a name change is sought in connection with a learner’s permit or non-commercial driver’s license, the Pennsylvania Department of Transportation requires original documents supporting the name change “such as a marriage certificate, divorce decree or court order.” See www.dmv.state.pa.us/teenDriversCenter/obtainingLearnersPermit.shtml. To be eligible as a spouse for firemen and law enforcement officer death benefits under Pennsylvania law, the applicable regulations state that “[i]f a common law marriage is claimed, the affidavits or certified statements of the spouse” are needed “setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as a result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as a result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the period of cohabitation, places of residences, whether the parties held themselves out as husband and wife, and whether they were generally accepted as such in the communities in which they lived.” 4 Pa. Code. § 89.6(b)(5) (2009).
It thus appears that Pennsylvania would require additional evidence to supplement the Affidavit of Common-Law Marriage to support a name change. This conclusion is consistent with the Agency’s general policies concerning establishment of a common-law marriage. Pursuant to POMS GN 00305.060(A), a common-law marriage can be established when certain prerequisites are demonstrated, which generally includes evidence, among other things, that “the parties are legally capable of entering into a valid marriage” (a matter not addressed by the Affidavit of Common-Law Marriage supplied by NH). In establishing whether the common-law marriage factors are met, the Agency’s preferred sources of proof include 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. See POMS GN 00305.065(1)(a). These forms inquire into the putative common-law marriage relationship in a far greater level of detail than what is reflected in the Affidavit of Common-Law Marriage provided by NH. For example, the Statement of Marital Relationship inquires as to when the parties began living together in a husband and wife relationship; whether they lived together continuously since that time; whether any understandings between them were changed; whether any children were born of the relationship; how the couple was introduced to others; whether the parties ever lived with anyone else as husband and wife (and the status of that relationship when the current relationship began); and whether tax returns, deeds, insurance policies, or contracts were executed as husband and wife. There is no indication here that NH and her putative husband, if he is available, have submitted these forms or similar materials to prove their common-law marriage. It is our opinion that further development is necessary to determine whether NH can establish a valid common-law marriage under Pennsylvania law to support a change of name.
For the reasons outlined above, it is our opinion that, under the controlling law of the Commonwealth of Pennsylvania, the Affidavit of Common-Law Marriage submitted by NH is not sufficient evidence, standing alone, of a valid common-law marriage to support a name change. Consistent with Agency policy, we believe that further factual development is warranted to support the request for name change.
Eric P. K~
Regional Chief Counsel, Region III
Assistant Regional Counsel