TN 11 (06-14)

PR 02720.045 South Carolina

A. PR 14-117 Name Change Based on Evidence of a Common Law Marriage – South Carolina Number Holder: Caroline

DATE: June 13, 2014

1. SYLLABUS

A South Carolina Common-Law Marriage document submitted along with a memorandum from the Department of the Air Force are not sufficient evidence of a name change event based on a marriage in South Carolina.

2. OPINION

QUESTION

You have asked whether the Social Security Administration (SSA) may change the number holder’s name in her Numident based on a marriage document that was not issued by a State and a memorandum from the Department of the Air Force concluding the number holder participated in a valid common law marriage.

OPINION

The marriage document and memorandum from the Department of the Air Force are insufficient evidence for a legal name change based on a marriage in South Carolina.

BACKGROUND

According to the information provided, Caroline, the number holder (NH), applied for a replacement Social Security card and asked SSA to change her name to Caroline . NH requested the name change based on her purported marriage to Aaron. NH provided a document signed by Pastor Dan stating that on March 2, 2014, he joined NH and Aaron in holy matrimony in Hartsville, South Carolina. Twenty witnesses, including NH’s parents, also signed the document stating they were present at the ceremony and that they affirm and support the marriage. NH also provided a memorandum from the Department of the Air Force, stating the Air Force had found the marriage between NH and Aaron to be legally sufficient, and the documentation provided established a valid common law marriage. The memorandum does not describe the documents or the standards the Air Force considered in making its determination. NH also provided a copy of her South Carolina driver’s license with the name Caroline and a copy of an identification card from United States Uniform Services with the signature Caroline NH did not provide a marriage license, and the marriage document NH submitted does not indicate it was issued by the State of South Carolina or any other State.

DISCUSSION

Social Security regulations provide that a number holder may request that SSA change her records, including her name. See 20 C.F.R. §§ 401.65, 422.110 (2014). 1 The number holder must present convincing documentary evidence to justify a change in her records. See 20 C.F.R. §§ 422.107, 422.110(a). To process a name change, the number holder must provide evidence of the name change event, a new name, and the number holder’s identity on the latest Numident record. See 20 C.F.R. § 422.107(a), (c); Program Operations Manual System (POMS) RM 10210.015(A); POMS RM 10212.015(A). SSA recognizes a number of events as the basis for a name change, including common law marriages. 2 See POMS RM 10212.010.

To show a name change based on a common law marriage, the submitted documentation must be acceptable evidence of a name change for the State where the marriage was legalized. See POMS RM 10212.030. In determining whether the document submitted is acceptable evidence for a name change, SSA generally follows State statutory law. See POMS RM 10212.015(B), POMS RM 10212.030. Because NH’s purported marriage occurred in South Carolina, we look to South Carolina law.

South Carolina provides that a mentally competent man and woman at least sixteen years of age, who are not otherwise, married or closely related, may marry. See S.C. Code Ann. §§ 20-1-10, 20-1-80, 20-1-100. South Carolina statutory law generally renders it unlawful for a person to contract marriage in South Carolina without first procuring a license or for a person to perform a marriage ceremony without first receiving a valid marriage license from the persons to be married. See S.C. Code Ann. § 20-1-210. However, a marriage is not rendered illegal because it is contracted without the issuance of a license. See S.C. Code Ann. § 20-1-360. A common law marriage is formed when two parties contract to be married. See Callen v. Callen, 620 S.E.2d 59, 62 (S.C. 2005). An express contract is not required as an agreement can be inferred from the circumstances. See id. Both parties must intend to be married and have a mutual understanding of each party’s intent. See id. The consideration for the agreement is participation in the marriage. See id. South Carolina permits a married couple to establish an official record of an unlicensed marriage by filing with the county official whose duty it is to record marriages: (a) an affidavit of one or more witnesses to the marriage; (b) an affidavit of two or more reputable persons who were informed of the marriage and have knowledge that the persons claiming to be married have lived together as husband and wife; and (c) a certificate from the person officiating at that marriage if he were a minister of the Gospel or a person qualified by law to administer an oath. See S.C. Code Ann. § 20-1-570. This official record will be accepted by all courts in the State as conclusive evidence of the marriage and shall have the same force and effect of the marriage records required by law. See S.C. Code Ann. § 20-1-580.

South Carolina permits an individual to change her name if she petitions a family court judge in writing setting forth the reason for the change, her age, her place of residence and birth, and the name by which she desires to be known. See S.C. Code Ann. § 15-49-10(A). 3 South Carolina does not require the petitioner provide any additional information or documentation if the petitioner is seeking to change her name as a result of the petitioner’s marriage. See S.C. Code Ann. § 15-49-20(A) (excluding those who are petitioning to change their names based on marriage from including the additional information listed in the subsection). 4 Following a hearing and upon consideration of the petition, the reason in the petition, and other documentation, the family court judge will grant or refuse the name change. See S.C. Code Ann. § 15-49-20(C). The statutes pertaining to driver licenses and registration of vehicles do not specify what documentation is required to change a name on a South Carolina driver’s license or registration card. See S.C. Code Ann. §§ 56-1-230, 56-3-1300. However, the website for the South Carolina’s Department of Motor Vehicles (DMV) states that a person may change her name on a South Carolina driver’s license or registration card by visiting a DMV office, completing Form 4057, and presenting proper documentation such as a “marriage certificate, divorce decree or court order.” 5

The documents NH provided are insufficient for a name change in South Carolina. See POMS RM 10212.030. NH presented a document indicating she was married to Aaron on March 2, 2014, but the document was not issued by the State and there is no indication that NH procured a marriage license. The evidence provided also does not indicate NH has petitioned the State for a name change or that a family court judge issued an order granting such a petition. See S.C. Code Ann. §§ 15-49-10, 15-49-20. Moreover, NH’s driver’s license, which lists her last name as D~, indicates NH has not applied for or secured sufficient documentation to change her name on her driver’s license. South Carolina’s DMV indicates a person can change her name on her driver’s license only by presenting a marriage license, a State issued marriage certificate, a divorce decree, or a court order.6

Further, the evidence NH submitted does not clearly establish a valid common law marriage under South Carolina law. Although the marriage document evidences an express contract to marry and intent by both parties to marry, see Callen, 620 S.E.2d at 62, the document does not show the parties meet the other requirements for a valid marriage, such as both being of legal age, mentally competent, or unmarried at the time of the union, see S.C. Code Ann. §§ 20-1-10, 20-1-80, 20-1-100. NH also has not submitted documentation sufficient to create an official record of her unlicensed marriage per South Carolina statutory law, including statements from two or more reputable persons who were informed of the marriage and have knowledge that NH and Aaron have lived together as husband and wife. See S.C. Code Ann. § 20-1-570. NH submitted a memorandum from the Department of the Air Force recognizing her relationship with Aaron as a common law marriage, but the memorandum does not identify what documentation she submitted to the Air Force or provide the standard by which the Air Force determined a common law marriage existed.

Although the documents NH submitted are not sufficient for a name change in South Carolina, which is required by SSA’s POMS for a name change, see POMS RM 10212.030, we note the marriage document includes the signatures of the spouses and two blood relatives (NH’s parents) attesting to the marriage, which is the preferred evidence for a common law marriage for living spouses under SSA’s regulations. See 20 C.F.R. § 404.726(b).

CONCLUSION

Based on the above legal authority, the marriage document NH submitted and the memorandum from the Department of the Air Force are insufficient evidence for a name change based on a marriage in South Carolina.

Sincerely,
Mary Ann Sloan
Regional Chief Counsel
By:______________________
Laura Verduci
Assistant Regional Counsel


Footnotes:

[1]

All references to 20 C.F.R. and State statutes refer to the 2014 editions.

[2]

To show a name change based on a ceremonial marriage, the number holder must present marriage documents issued by a State. See POMS RM 10212.025. The marriage document NH submitted was not issued by the State of South Carolina or any other State. Thus, the relevant inquiry is whether the document is sufficient to show a name change event based on a common law marriage.

[3]

Case law also provides that at common law a person can lawfully change her name by usage or habit, without intervention by a court or the legislature. See Braydon v. Beal, 53 S.E. 641, 642 (S.C. 1906). However, SSA does not follow common law in determining whether a document is acceptable for a name change. See POMS RM 10212.015(B), POMS RM 10212.030.

[4]

The statute provides that for those who are not excluded, the petitioner must provide: (1) the results of a fingerprint and criminal background check, (2) a screening statement from the Department of Social Services that indicates whether the person is listed on the department’s Central Registry of Child Abuse and Neglect, (3) an affidavit as to whether the petitioner is under a court order to pay child support or alimony, and (4) a screening statement from the State Law Enforcement Division that indicates whether the person is listed on the division’s sex offender registry. See S.C. Code Ann. § 15-49-20(A).

[5]

South Carolina Department of Motor Vehicles: General Driver License Information, http://www.scdmvonline.com/dmvnew/default.aspx?n=general_driver_license_information (last visited June 9, 2014) (click on Form 4057). A “marriage certificate” is a vital record kept and created by the South Carolina Department of Health and Environmental Control. See S.C. Code Ann. §§ 20-1-310, 20-1-320, 44-63-20, 44-63-60, 44-63-70.

[6]

South Carolina Department of Motor Vehicles: General Driver License Information, http://www.scdmvonline.com/dmvnew/default.aspx?n=general_driver_license_information.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1502720045
PR 02720.045 - South Carolina - 06/24/2014
Batch run: 06/24/2014
Rev:06/24/2014