QUESTION
               Whether the evidence provided by Chasity S~ (Claimant) meets the requirements of South
                  Carolina law to establish a common-law marriage to Jerry P~, the number holder (NH).
               
               ANSWER
               For the reasons stated below, we believe the evidence is sufficient under South Carolina
                  law to establish Claimant is NH's common-law wife. Our conclusion is not based on
                  the court order from Anderson County, South Carolina, Probate Court because the order
                  does not meet the prerequisites set forth in Social Security Ruling (SSR) 83-37c.
                  Rather, the evidence we found compelling under South Carolina law is the mutual statements
                  Claimant and NH provided on August 20, 2004, stating they were in a marital relationship
                  even though they had not had a marriage ceremony.
               
               BACKGROUND
               On November 21, 2005, after NH's death on October 25, 2005, Claimant, the mother of
                  NH's child, filed a claim for survivor benefits for the child. The child was born
                  June 21, 2003, and NH's paternity of the child is not disputed. On September 29, 2006,
                  Claimant filed a claim for mother's benefits and submitted a September 8, 2006, court
                  order from the Anderson County, South Carolina Probate Court finding she was NH's
                  common-law wife. Agency documents show NH applied for title II benefits in May 2003
                  and stated he had never been married. He applied for title XVI benefits in August
                  2004 and stated he and Claimant considered themselves to be in a marital relationship,
                  that they had been living together since their son was born, and were engaged. He
                  stated he had been living at his address since he was born in 1966. The same address
                  is shown as Claimant's address on her driver's license and motor vehicle tax records.
               
               On August 20, 2004, NH and Claimant each signed separate but identical statements
                  that read as follows:
               
               Understanding that this statement is for the use of the Social Security Administration,
                  I hereby certify that - (Jerry P~ or Chasity S~) and I consider ourselves in a marital
                  relationship. We are engaged to be married. We have lived together since the birth
                  of our son in June 2003. We consider ourselves in a marital relationship even though
                  we have not gone through an actual marital ceremony at this time.
               
               When Claimant filed the claim for survivor benefits on behalf of her son, she stated
                  she and NH never married, but dated or lived together several years. They were not
                  living together when NH died. When she filed the application for mother's benefits,
                  she stated she and NH were married. She stated she had misunderstood the question
                  about marriage when she filed the application for NH's son. She had thought they had
                  to have a marriage license from a court or public official. She left NH in June 2005
                  and removed her belongings from the apartment they had shared in August 2005. Claimant
                  stated she did not get along with NH's parents and they may not complete statements
                  of marital relation. On another form completed with this application, she stated she
                  and NH had intended to have a ceremony, but every time they made plans, someone died
                  or got sick. Claimant further stated they understood they would live together forever
                  or until one died and the relationship could end through divorce. She stated they
                  lived like any married couple, paid bills together, bought food together, and kept
                  the house and yard together.
               
               Claimant's father submitted a statement identifying himself as NH's father-in-law.
                  He stated he saw NH on weekends and at family gatherings. Claimant's father further
                  stated NH and Claimant were generally known as husband and wife and he considered
                  them husband and wife. He stated they had lived together three years as husband and
                  wife, they referred to each other as husband and wife, made a home together as husband
                  and wife, and where one went, the other went.
               
               NH's father also completed a statement. He stated he lived in Georgia and saw his
                  son as often as he could, specifically naming Christmas and Thanksgiving. He sometimes
                  saw Claimant when he visited his son, and he did not know if they considered themselves
                  husband and wife. He had not heard them refer to each other as husband and wife. He
                  stated they did live together, but had separated two or three times and were not living
                  together at the time of NH's death.
               
               A probate court order dated September 8, 2006, on a petition to establish heirs filed
                  by Claimant against the child she had by NH, found Claimant was NH's common-law wife.
                  The guardian ad litem for the child filed a report, stating she had talked with seven
                  witnesses besides Claimant, including NH's family members, Claimant's family members,
                  and mutual friends of NH and Claimant. NH's aunt stated NH and Claimant referred to
                  each other as husband and wife. NH's father and stepmother stated NH and Claimant
                  were not married, but they did not know if they married by common-law. Claimant's
                  parents stated NH and Claimant held themselves out to the public as husband and wife.
                  A mutual friend stated NH and Claimant regularly referred to each other as husband
                  and wife. Claimant also had a Sam's Club membership card issued in 2002, which states
                  on the face of the card "Complimentary Spouse." The guardian ad litem reported that
                  the member must be present when a complimentary spouse card is issued and therefore
                  NH and Claimant must have held themselves out as husband and wife when obtaining the
                  card.
               
               The file also contains an August 2003 Medicaid Approval Letter for low income families,
                  listing NH, Claimant, and their son Grayson G.~ P~. Also included is a court record
                  showing an action by Claimant against NH for protection from domestic abuse of an
                  intimate partner filed in September 2005.
               
               DISCUSSION
               Section 202(g) of the Act provides that the surviving spouse of a deceased individual
                  can be entitled to a mother's/father's insurance benefit. "Surviving spouse" is defined
                  in § 216(a)(2) to include a widow, as defined in § 216(c). Section 216(c) defines
                  "widow" to include the surviving wife of an individual who is the mother of his son
                  or daughter. NH's paternity of Claimant's child is not in dispute. To decide Claimant's
                  relationship as NH's surviving wife, we look to the laws of the state where NH had
                  a permanent home when he died. See § 216(h), 20 C.F.R. § 404.345(2006). NH was domiciled in South Carolina when he died.
                  However, he and Claimant did not have a formal marriage ceremony. Therefore, the issue
                  is whether Claimant and NH had a common-law marriage under South Carolina law.
               
               Social Security regulations define common-law marriage as one considered valid under
                  a state's laws even though there is no formal marriage ceremony. See 20 C.F.R. § 404.726(a). A common-law marriage is a marriage between two persons free
                  to marry, who consider themselves married, live together as man and wife, and in some
                  states, meet certain other requirements. See
                     id. Preferred evidence of a common-law marriage is: (1) if both the husband and wife
                  are alive, their signed statements and those of two blood relatives; (2) if either
                  the husband or wife is dead, the signed statements of the one who is alive and those
                  of two blood relatives; or (3) if both the husband and wife are dead, the signed statements
                  of one blood relative of each. See 20 C.F.R. § 404.726(b).
               
               Claimant did not submit preferred evidence of a common-law marriage. See id.  The file contains statements signed by both NH and Claimant on August 20, 2004, that
                  they were in a marital relationship, but does not include any statements from blood
                  relatives. Claimant's father, Doug S~, stated that NH and Claimant lived together
                  as husband and wife, but Claimant reported in September 2006 that Mr. S~ was her adoptive
                  father. Therefore, his statement is not a statement from a blood relative.
               
               The regulations state that if the applicant cannot provide preferred evidence of a
                  common-law marriage, he or she must explain why and provide other convincing evidence
                  of the marriage. See 20 C.F.R. § 404.726(c). Claimant did not explain why she did not get statements from
                  two blood relatives. However, her report that she is adopted, along with her assertion
                  in September 2006 that she did not get along with NH's parents and they may not complete
                  statements of marital relation, may be interpreted as an implicit explanation.
               
               In determining whether Claimant provided other convincing evidence of the marriage,
                  as required by 20 C.F.R. § 404.726(c), we note a September 8, 2006, court order from
                  the Anderson County, South Carolina Probate Court finding Claimant was NH's common-law
                  wife. Under Social Security Ruling (SSR) 83-37c, the Agency is not bound by a State
                  trial court's determination to which it was not a party. However, the Agency cannot
                  ignore the decision if all four of the following prerequisites are met:
               
               (1) an issue in a claim for Social Security benefits previously has been determined
                  by a State court of competent jurisdiction; (2) this issue was genuinely contested
                  before the State court by parties with opposing interests; (3) the issue falls within
                  the general category of domestic relations law; and (4) the resolution by the State
                  trial court is consistent with the law enunciated by the highest court in the State.
               
               SSR 83-37c; see Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). We cannot conclude from the court order or the guardian
                  ad litem's report that the issue of Claimant's status as NH's common-law wife was
                  genuinely contested by parties with opposing interests. Rather, the guardian ad litem
                  acted more as a fact-finder for the court than an advocate for the child. Thus, we
                  do not believe the order of the probate court is convincing evidence of Claimant's
                  common-law marriage to NH.
               
               As evidenced by the probate court order, South Carolina recognizes common-law marriage.
                  See Barker v. Baker, 499 S.E.2d 503 (S.C. 1998); Kirby v. Kirby, 241 S.E.2d 415 (S.C. 1978). A common-law marriage is formed when two parties contract
                  to be married.  Callen v. Callen, 620 S.E.2d 59, 62 (S.C. 2005). No express contract is necessary; the agreement may
                  be inferred from the circumstances. Id. The fact finder is to look for mutual assent: the intent of each party to be married
                  to the other and a mutual understanding of each party's intent.  Id.  If these factual elements are present, the court should find as a matter of law that
                  a common-law marriage exists. Id.  A party need not know every nuance of marriage law, but must at least know his actions
                  will render him married as that word is commonly understood. Callen, 620 S.E.2d at 63. If he does not comprehend that his actions will result in a legally
                  binding marital relationship, he lacks intent to be married. Id.  The marriage must be proved by a preponderance of the evidence. Barker, 499 S.E.2d at 507. However, if a party claiming common-law marriage proves the parties
                  participated in apparently matrimonial cohabitation during which they had a reputation
                  in the community as being married, a rebuttable presumption arises that a common-law
                  marriage was created. Callen, 620 S.E.2d at 62. This presumption can be overcome by strong and cogent evidence
                  that the parties never in fact agreed to marry. Id.
               The August 20, 2004, signed statements by NH and Claimant that they were in a marital
                  relationship even though they never had an actual marriage ceremony provides strong
                  support for finding mutual assent. The statements were identical, were signed on the
                  same day, and included an acknowledgement that the statements were for the use of
                  the Social Security Administration; these facts indicate not only the intent of each
                  to be married to the other, but the mutual understanding of each other's intent and
                  the possible legal consequences. Under the Callen holding, a finding of this mutual assent requires a finding that a common-law marriage
                  exists.
               
               Moreover, these statements are consistent with other evidence, including NH's affirmative
                  statements in August 2004 that he and Claimant considered themselves to be in a marital
                  relationship, Claimant's descriptions of their relationship, and her father's statement
                  that NH and Claimant were generally known as husband and wife and he considered them
                  husband and wife. Numerous documents, including benefits applications, Claimant's
                  driver's license and motor vehicle tax assessments, and the Medicaid approval letter,
                  confirm that NH and Claimant were using the same address for several years. We further
                  note the guardian ad litem's report in the probate court action. She stated she had
                  talked with seven witnesses besides Claimant, including NH's family members, Claimant's
                  family members, and mutual friends of NH and Claimant. NH's aunt told the guardian
                  ad litem NH and Claimant referred to each other as husband and wife. Claimant's parents
                  stated NH and Claimant held themselves out to the public as husband and wife. A mutual
                  friend stated NH and Claimant regularly referred to each other as husband and wife.
                  Claimant also had a Sam's Club membership card issued in 2002, which states on the
                  face of the card "Complimentary Spouse." The guardian ad litem reported that the member
                  must be present when a complimentary spouse card is issued and therefore NH and Claimant
                  must have held themselves out as husband and wife when obtaining the card.
               
               We also note that the assertions of a marital relationship are not strongly rebutted.
                  When NH filed an application for title II benefits in May 2003, he stated he had never
                  been married. However, this statement was more than a year before his affirmative
                  statements to the contrary in August 2004. Thus, even if he did not consider himself
                  married in May 2003, his intent may well have changed, especially considering the
                  birth of his son in June 2003. While NH's father stated he did not know if NH and
                  Claimant considered themselves husband and wife, he did not deny or refute the possibility.
                  He lived in another state and was not clear on how often he saw NH. He conceded he
                  sometimes saw Claimant when he visited his son.
               
               We also believe South Carolina courts would not find significant Claimant's own statement
                  in November 2005 that she and NH never married, or NH's father's and stepmother's
                  statements to the guardian ad litem that NH and Claimant were not married, but they
                  did not know if they married by common-law. The South Carolina Supreme Court in Campbell v. Christian, 110 S.E.2d 1, 4 (S.C. 1959), found a woman's testimony that she did not consider
                  herself married did not defeat her claim to be a widow by common-law marriage. The
                  Court found that the woman's testimony related to the performance of a marriage ceremony,
                  rather than the existence of a marriage by common-law.  Id. at 3, 4; see
                     also In Re Greenfield's Estate, 141 S.E.2d 916, 919 (1965) (conflicting opinions of the couple's marital status
                  was properly reconciled by the trial court's view that some witnesses mistakenly believed
                  that only ceremonial marriages are valid). The statements by NH and Claimant, as well
                  as the statements by NH's father and stepmother, support this view. NH's father and
                  stepmother acknowledged a difference between being "married" and being "married by
                  common-law." While stating they were "engaged" in August 2004, NH and Claimant both
                  asserted twice in the same statement that they "consider ourselves in a marital relationship
                  even though we have not gone through an actual marital ceremony at this time." When
                  Claimant filed her application for mother's benefits, she stated she previously had
                  misunderstood the question about marriage and had thought she and NH had to have a
                  marriage license from a court or public official. On another form completed with this
                  application, she stated she and NH had intended to have a ceremony, but every time
                  they made plans, someone died or got sick. We do not believe the desire or plan to
                  have a marriage ceremony provides strong evidence that NH and Claimant did not have
                  mutual assent to be married in the absence of a ceremony.
               
               CONCLUSION
               For the foregoing reasons, we believe the evidence presented is sufficient to establish
                  that Claimant was the common-law wife of NH under South Carolina law.
               
               Sincerely
Mary A.~ S~
Regional Chief Counsel
By: ____________
 Nancy R~
 Assistant Regional Counsel