You asked whether SSA would recognize a “Gypsy marriage” performed in Hawaii. For
the reasons listed below, we believe the “Gypsy marriage” performed in Hawaii was
not a valid marriage. Even if it was possibly valid, the presumption of validity
of a later marriage supports a finding that SSA could recognize the Number Holder’s
(NH’s) later common-law marriage.
On April 18, 2013, you contacted the Office of the General Counsel (OGC) for advice
about the validity of a “Gypsy marriage.” We requested additional information, which
you sent to us on May 22, 2013. According to the information you provided, on March
9, 1995, Christina , the NH, reportedly married Thomas in a Gypsy ceremony conducted
in Honolulu, Hawaii. The NH’s application for disability indicated that this marriage
ended in divorce on January 1, 2006. However, the agency did not receive any proof
of marriage or divorce. The agency was also unable to contact the alleged spouse from
this marriage, or any of the NH’s other relatives.
In 2004, the NH began living with John, her putative second husband. From July 2004
through April 2009, they cohabitated in Texas. The material you provided included
a statement from one of the NH’s former neighbors in Texas. The neighbor indicated
that the NH and John presented themselves as a married couple. John also indicated
that he and the NH agreed to be married while living in Texas and held themselves
out to the public as common-law spouses. In May 2009, the couple moved to Missouri. On
January 24, 2011, the couple had a ceremonial wedding. The NH passed away shortly
thereafter on February 16, 2011, while still domiciled in Missouri. John filed an
application for widower’s benefits on April 4, 2011. He told the agency that he did
not believe that the “Gypsy marriage” was legal, and that his wife did not have any
legal records for either the “Gypsy marriage” or subsequent divorce.
Under section 216(h)(1) of the Social Security Act, the existence of a marriage is
determined primarily by reference to State law. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345 (2012). Specifically, an “applicant
is the . . . husband . . . [or] widower of a fully or currently insured individual
for purposes of this title if the courts of the State in which . . . [s]he was domiciled
at the time of death . . . would find that such applicant and such insured individual
were validly married at the time such applicant files such application or, if such
insured individual is dead, at the time [s]he died.” Social Security Act § 216(h)(1)(A)(i).
As your request for opinion acknowledges, Texas recognizes common-law marriage or
“informal marriage.” Tex. Fam. Code Ann. § 2.401(a)(2) (West 2005). However, in order
to have a common-law marriage in Texas, the NH could not have a valid marriage already
in effect. See Id. at § 2.401(d) (“A person may not be a party to an informal marriage or execute a
declaration of an informal marriage if the person is presently married to a person
who is not the other party to the informal marriage or declaration of an informal
marriage, as applicable.”). Thus, the issue is whether the “Gypsy marriage A search
of all publicly available state and federal cases on Westlaw did not reveal any precedent
concerning the validity of a “Gypsy” or “Roma” marriage ceremony. For purposes of
this opinion, the term “Gypsy marriage” is equivalent to any other type of marriage
ceremony. ” performed in Hawaii was a valid marriage.
Under Hawaii state law, there are seven requirements for a valid marriage contract:
1) The parties may not be related as ancestor and descendant of any degree, siblings,
half siblings, uncle and niece, or aunt and nephew;
2) The parties must be at least 16 years of age;
3) The parties may not already have a lawful marriage or civil union with a third
4) The consent of the parties may not be obtained by force, duress, or fraud;
5) Neither of the parties may be afflicted with any “loathsome disease” concealed
from, and unknown, to the other party;
6) The man and woman to be married shall have obtained a marriage license; and
7) The marriage must be performed in the State by a person or society with a valid
license to solemnize marriages and the man and woman to be married and the person
performing the marriage ceremony must be all physically present at the same place
and time for the marriage ceremony.
Haw. Rev. Stat. § 572-1 (2012).
Based on the information provided with the request for advice, it does not appear
that the “Gypsy marriage” met at least the sixth requirement of Hawaii state law. John
told the agency that he did not believe that the “Gypsy marriage” was a legal marriage. According
to the information you provided, it does not appear that there was any legal record
of the NH’s Hawaii marriage. Hawaiian case law is clear that the state does not recognize
common-law marriage, i.e., a marriage where the parties have not obtained a marriage license. See Kiesel v. Peter Kiewit & Sons' Co., 638 F.Supp. 1251, 1252 (D. Haw. July 16, 1986). If there was no marriage license
issued, then under Hawaii state law, the “Gypsy marriage” was not valid.
Unfortunately, because the NH is deceased and the prior alleged husband is unavailable,
we cannot know for certain whether a marriage license was issued or whether the marriage
was performed by a person with a valid license to solemnize marriages. The absence
of either would preclude a valid marriage under Hawaii statue. In the absence of clear
evidence that the “Gypsy marriage” did or did not satisfy the requirements of Hawaii
law, most states have created certain legal presumptions to aid in resolving the validity
of subsequent marriages.
As you recognize in your request, if the previous “Gypsy marriage” was never valid,
there is no question that the NH and her putative husband had an “informal marriage”
as recognized by the state of Texas. In situations where there is a question about
the validity of a prior marriage, Texas law presumes that a subsequent marriage is
valid. See Tex. Fam. Code Ann. § 1.102. The relevant statute provides “[w]hen two or more marriages
of a person to different spouses are alleged, the most recent marriage is presumed
to be valid as against each marriage that precedes the most recent marriage until
one who asserts the validity of a prior marriage proves the validity of the prior
marriage.” Thus, under Texas law, the presumption is that the NH’s “informal marriage”
to John is valid.
That presumption did not change when the NH and her second spouse moved to Missouri. While
Missouri law does not provide for common law marriage, it does recognize common-law
marriages formed in other states. See Whitley v. Whitley, 778 S.W.2d 233, 238 (Mo. App. 1989)(citing Doyle v. Doyle, 497 S.W.2d 846, 847 (Mo. App. 1973)). Missouri also follows the presumption in favor
of the validity of the last of two or more conflicting marriages. See In re Estate of L~, 909 S.W.2d 365, 369 (Mo. App. 1995)(citing Carr v. Carr, 232 S.W.2d 488, 489 (Mo. App. 1950). See also Program Operations Manual System PR § 05105.028. Thus, The NH’s informal marriage
in Texas is presumed valid under Missouri law, where she was domiciled at the time
of her death.
Based upon our research, it does not appear that the NH’s “Gypsy marriage” in Hawaii
was valid. We have no evidence that the NH and her first putative husband satisfied
all the requirements for a valid marriage under Hawaii state law. Even if it was
possible that they had a valid marriage, under the presumption of validity for a later
marriage in effect in both Texas and Missouri, her later common-law marriage to John
is presumed valid.
Kristi A. Schmidt
Chief Counsel, Region VII
Sean N. Stewart
Assistant Regional Counsel