TN 8 (04-14)
PR 02720.049 Utah
A. PR 14-060 Common Law Marriage in the State of Utah as Valid Reason for a Name Change – REPLY
DATE: February 28, 2014
The Utah District Court order, issued in accordance with the provisions of section 30-1-4.5 of the Utah State Code, validating an unsolemized (Common Law) marriage as a legal and valid marriage is acceptable evidence of a name change event.
You asked us to provide an opinion on whether an order from the Fifth Judicial District Court in Washington County, Utah, and the common law marriage recognized in said order, is sufficient evidence for a name change by the agency.
The petition signed by Andrew and Brandi attesting to their common law marriage, and the subsequent order from a Utah state court ruling that their marriage is legal and valid under the laws of the state of Utah, constitute sufficient evidence that Brandi is married to Andrew for the purposes of the requested name change. Further, because both Andrew and Brandi signed the court petition, sufficient evidence has been presented of Brandi’s requested new name – Brandi. However, before the agency can change Brandi’s name, she will need to present additional documentation to verify her identity because the petition and court order are more than two years old.
We note that our opinion is limited to the specific facts of this case, and limited to the issue of the requested name change.
On or about November 15, 2010, Andrew and Brandi submitted a joint petition to the Fifth Judicial District Court in Washington County, Utah, asking the court to recognize their common law marriage. According to the petition, the couple exchanged vows and rings in November and have been living as husband and wife since that time. At the time they exchanged vows, Andrew was 19 years old (born May) and Brandi was 18 years old (born September) and, therefore, were of legal age. See Utah Code Annotated (U.C.A.) § 30-1-4.5. Their petition indicated that they jointly purchased a home in 2001 and have a child together. On January 18, 2011, the Fifth Judicial District Court issued an order decreeing that the couple had a legal and valid marriage pursuant to U.C.A. § 30-1-4.5.
In general, an individual seeking to change her name must present (1) evidence of a name change event; (2) evidence of the new name; and (3) evidence of the individual (numberholder’s) identity. See POMS RM 10212.055. In this particular case, a common-law marriage established by court order qualifies as a name change event because a Utah court has ruled that the statutory requirements to establish a common-law marriage have been met. See, e.g., POMS RM 10212.010.
Evidence of a Name Change Event
Common-law marriage may be an acceptable name change event, depending on state law. See POMS RM 10212.030. Under U.C.A. § 30-1-4.5, an unsolemnized (i.e., common-law) marriage is recognized as legal and valid in the State of Utah if the following requirements are met: (1) the parties are of legal age and capable of giving consent; (2) the parties are legally capable of entering into a solemnized marriage; (3) the parties have cohabited; (4) the parties have mutually assumed marital rights, duties, and obligations; (5) the parties hold themselves out as and have acquired a uniform and general reputation as husband and wife; and (6) each of the previous five elements has been established by court or administrative order. See U.C.A. § 30-1-4.5; see also Richard v. Brown, 274 P.3d 911 (Utah 2012). A marriage recognized under the common-law marriage statute is considered valid from the time in which the marriage was first entered into. See W~ v. B~, 885 P.2d 791 (Utah 1994).
The only evidence provided to the agency that Andrew and Brandi met each of the elements of U.C.A. § 30-1-4.5 was the petition that they jointly submitted to the Fifth Judicial District Court. The petition recites the necessary facts sufficient to establish that the requirements of the statute were met, but there is no indication that any independent evidence was provided to support the statements made in the petition (such as birth certificates or affidavits). That said, the District Court ruled that sufficient evidence had been presented to meet the requirements of U.C.A. § 30-1-4.5, and decreed that the marriage was legal and valid.
The fact that the petition in this case was submitted jointly and uncontested is of some concern because no independent, additional documents were provided as verification of the statements made in the petition. However, there is no indication that any of the facts presented in the joint petition were inaccurate and, as such, we have no reason to doubt the facts as presented. Further, in the State of Utah the standard of proof for establishing a common law marriage under U.C.A. § 30-1-4.5 is by a preponderance of the evidence. See Hansen v. Hansen, 958 P.2d 931, 935 (Utah Ct. App. 1998). Given that Utah only requires proof of marriage by a preponderance of the evidence, and given that we have no reason to doubt the facts in the petition, we can reasonably rely on the court order as sufficient evidence of the common-law marriage for purposes of establishing a name change event. We note that this opinion is limited to the issue of the requested name change. If a claim for benefits were filed that required proof of the common-law marriage, we would recommend the additional development outlined in POMS GN 00305.065.
Evidence of the New Name
Here, the name that Brandi seeks to use, Brandi, can be derived from the petition (and court order affirming the petition) as it could from a marriage license, because spouses Andrew and Brandi both signed the petition. See generally POMS RM 010212.055(B). Therefore, the court order and the associated petition are sufficient evidence of both a name change event and evidence of the new name that Brandi seeks to use.
Evidence of Identity
The petition and court order are dated November 10, 2010, and January 15, 2011, respectively. Because they are more than two years old, they cannot serve as evidence of the numberholder’s identity. See POMS RM 10212.015(D). Brandi will have to submit an additional document establishing her identity in order for her name to be changed (in accordance with the requirements of POMS RM 10212.015). Id. For example, Brandi could present an identity document in the prior name shown on her numident record. See POMS RM 10212.015(D); POMS RM 10210.420 (priority list of acceptable evidence of identity documents).
For the limited purpose of changing Brandi’s last name, Andrew and Brandi have presented sufficient proof of their common law marriage. This court order and the accompanying petition are sufficient evidence of a name change event and of the new name Brandi seeks to use (i.e., changing her surname to her husband’s surname, R~). However, because the documents are more than two years old, Brandi will need to present additional evidence of her identity before the Agency can change her name.
Regional Chief Counsel
Sarah Van A~
Assistant Regional Counsel
In the petition, Andrew stated that his birthdate was May, and Brandi stated that her birthdate was September . Although we were unable to verify these birthdates in the SSA record systems to which OGC has access, both dates of birth correspond to the dates of birth listed for both individuals in a Lexis public records search.
Many states require a higher standard of proof to establish a common-law marriage, such as clear and convincing evidence.
The only Utah statute addressing name change in the context of marriage is the Uniform Driver’s License Act, which allows a person to change his or her surname on his or her driver’s license by presenting his or her marriage license as proof of a surname change. See U.C.A. § 533-216.3. This Act does not address surname changes based on a common-law marriage. However, the State of Utah’s Driver’s License Division website indicates that a court order is an acceptable form of legal authorizing documentation to support a name change. See http://publicsafety.utah.gov/dld/acceptable_id.html.