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.
BACKGROUND
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.
DISCUSSION
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.
CONCLUSION
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.
Sincerely,
Eric P. K~
Regional Chief Counsel, Region III
By:______________________
Jordana C~
Assistant Regional Counsel