Date: August 28, 2025

1. 1. 

   Syllabus

   The claimant filed an application for spouse’s insurance benefits on the record of the NH, who is entitled to retirement insurance benefits. The NH and the claimant are domiciled in New South Wales, Australia. The claimant alleges she is the NH’s spouse based on a “common-law marriage” with the NH beginning in 1991 in Australia. The claimant provided the agency’s preferred evidence for a common-law marriage claim (Forms SSA-754 and SSA-753). Although Australia does not authorize “common-law marriage” as a legal marriage, there is legal support for the agency to find that the claimant is the NH’s “spouse” for Title II benefit purposes based on a “de facto relationship” under the law of New South Wales, Australia, which conveys the right to inherit a spouse’s share under New South Wales, Australia’s intestate succession law.

2. 2. 

   Opinion

   QUESTION PRESENTED

   J~ (Claimant) filed an application for spouse’s insurance benefits under Title II of the Social Security Act (Act) on the record of the number holder (NH) S~, who is entitled to retirement insurance benefits. It is our understanding that the NH and the Claimant are domiciled in New South Wales, Australia. The Claimant alleges a “common-law marriage” with the NH beginning in January 1991 in Australia. You asked whether the Claimant is the NH’s “spouse” under the Act for purposes of her application for spouse’s insurance benefits on the NH’s record.

   ANSWER

   We believe there is legal support for the agency to find that the Claimant is the NH’s “spouse” for purposes of her application for Title II spouse’s insurance benefits on the NH’s record. Because the NH was domiciled in New South Wales, Australia and outside of the United States at the time the Claimant filed her application for benefits in March 2024, the agency applies the law of the District of Columbia to determine marital status between the Claimant and the NH. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. Under general conflict of law rules and the doctrine of comity, District of Columbia courts would generally look to Australia’s laws to determine the validity of any marriage and intestate inheritance rights. Although the Claimant alleges a “common-law marriage” to describe their relationship, the Claimant and the NH are not married under Australia law; instead, we believe District of Columbia courts would find that the Claimant has proven that she and the NH have a marriage-like relationship called a “de facto relationship” under Australia law that began in January 1991. A de facto relationship conveys the right to inherit a spouse’s share under New South Wales, Australia’s intestate succession law. Accordingly, based on their de facto relationship, we believe there is legal support for the agency to find that the Claimant is the NH’s “spouse” for purposes of determining the Claimant’s entitlement to Title II spouse’s benefits on the NH’s record. See 42 U.S.C. §§ 402(b), (c), 416(a)(1), (b), (f), (h)(1)(A)(ii); 20 C.F.R. § 404.330(a); POMS GN 00305.005A.

   BACKGROUND

   The NH was awarded retirement insurance benefits on June XX, 2023. On March XX, 2024, the Claimant filed an application for spouse’s insurance benefits on the NH’s record. The Claimant alleges that she and the NH began living as a married couple on January XX, 1991, in Australia. She provided statements to support her relationship with the NH and reported that she could also provide corroborating documents if requested.

   The Claimant completed the Form SSA-754 Statement of Marital Relationship. She reported that she and the NH began living together as spouses in January 1991 in New South Wales, Australia and that they have lived together continuously since then. She reported that they lived together as spouses in New South Wales, Australia from 1991 to 1992; in Queensland, Australia from 1992 to 1996; and in New South Wales from 1996 to the present. When they began living together, they intended to live together permanently. She wrote: “We were and are recognized as spouses by Australian law with the same rights and duties as a couple who had a formal marriage certificate.” They did not have any children. They did not change their last names. She reported that they filed annual tax returns in Australia as a married couple from 1992 through 2024. She reported that they are shown as spouses on housing and banking documents. She stated that they have a joint bank account, which they opened in 1996. They introduce one another as partner, spouse, or husband/wife. She provided the names of numerous individuals who knew of their relationship. She stated that she submitted numerous documents to a U.S. embassy including tax returns identifying her as the NH’s spouse, titles to their homes showing that she and the NH jointly owned the homes, and other documents naming them both. She stated that she could provide the documents again if needed. We were not provided with the documentary evidence she may have provided to the agency with her current application.

   The NH also completed the Form SSA-754. His responses to the questions on this form are basically the same as the Claimant’s responses. He reported that they began living together as spouses in New South Wales, Australia in January 1991 and have lived together continuously in Australia since that time. They intended to live together for life and introduced one another as husband/wife and partner. He reported that they had documents showing their status as spouses and reported numerous individuals who knew of their relationship.

   S~, the NH’s niece (blood relative), completed the Form SSA-753 Statement Regarding Marriage. She reported knowing the NH for her entire life and the Claimant for over 30 years. She stated that the Claimant is her uncle’s partner and that she would see them at all family gatherings and special occasions over the years, such as college graduations and weddings. To her knowledge, the NH and the Claimant were generally known as a married couple and she considered them married. She wrote: “[The Claimant and the NH] have effectively been a married couple at least since they bought their house in Koolewong together over 25 years ago, and they were partners for years before that as well. It has been clear for many years that theirs is a lifelong partnership fully equivalent to marriage, and in Australia their partnership is legally recognized as a common law marriage. [The Claimant] is a part of our family and I know that [the NH] is part of hers.” She heard the NH and the Claimant refer to one another as spouse and partner and that the terms meant the same for legal and practical purposes. She believed that the NH and the Claimant maintained a home and lived together continuously as a married couple in New South Wales from 1997 to the present.

   T~, the Claimant’s brother, also completed the Form SSA-753. He reported meeting the NH in 1991. He stated that he would see the NH and the Claimant regularly at family events such as holidays, weddings, and funerals. To his knowledge, the NH and the Claimant were generally known as a married couple and he considered them married. He reported: “They have lived together since around 1991 in a loving relationship. They have owned three houses: in Brisbane (Yeronga), Sydney (Koolewong) and at Wallaga Lake (5 hours south of Sydney). [The NH] is an important and active member of our family. [The NH and the Claimant] are recognized as husband and wife by the Australian Government with the legal rights and duties that come with being married. For example, they are defined as spouses by the Australian Taxation Office and this is taken into account in the filing of their returns.” He heard them refer to one another as spouses in introductions. He believed that they maintained a home and lived together continuously as a married couple in Australia from 1993 to the present.

   ANALYSIS

 

A. Federal Law: Status as a Spouse for Entitlement to Spouse’s Insurance Benefits

 

Under Title II of the Act, a claimant may be entitled to spouse’s insurance benefits on the record of an individual entitled to old-age or disability insurance benefits if, among other things, the claimant is the “spouse” of the individual and their marital relationship has lasted at least one year before the date the claimant filed the application for benefits. See 42 U.S.C. §§ 402(b), (c), 416(a)(1), (b), (f); 20 C.F.R. § 404.330(a); see also POMS RS 00202.001B (the claimant meets the one year marriage duration requirement if he or she has been married to the insured individual for at least one continuous year immediately before the day the claimant files the application; this duration requirement “may be met on the basis of an application actually filed before the first anniversary of the marriage as long as the one-year anniversary occurs prior to adjudication” of the claim).

 

As pertinent here given that the NH was domiciled in Australia when the Claimant applied for benefits, section 216(h)(1)(A) of the Act provides two methods for a claimant to show status as a “spouse” of an individual who is domiciled outside the United States for purposes of Title II benefits. See 42 U.S.C. § 416(h)(1)(A). First, a claimant is the spouse of the individual if the courts of the District of Columbia would find that the claimant was validly married to the individual at the time the claimant filed the application. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, if the claimant was not validly married to individual, the claimant will be deemed to be the individual’s spouse if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a spouse of the individual with respect to the taking of such property. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. Therefore, the Claimant’s status as the NH’s “spouse” will be evaluated under the laws of the District of Columbia. See also POMS GN 00305.001A.2.b, GN 00307.257 (sensitive), RS 00202.001A.

 

B. District of Columbia Law: Valid Marriage or Inheritance of a Spouse’s Share under Intestate Succession Law

 

1. 1. 

   Valid Marriage: There is no evidence of a valid marriage in Australia.

   The District of Columbia follows the general rule that the validity of the marriage is determined by the law of the jurisdiction where the marriage occurred. See Gill v. Nostrand, 206 A.3d 869, 875 n. 4 (D.C. 2019) (recognizing a “ceremonial marriage in Brazil as a matter of comity”); Cerovic v. Stojkov, 134 A.3d 766, 778 (D.C. 2016) (in a divorce action, applying Serbian law to determine marital status for purposes of equitable distribution of marital property under D.C. law); Bansda v. Wheeler, 995 A.2d 189, 198 (D.C. 2010) (in a divorce action, applying Dutch law to determine marital status for purposes of equitable distribution of marital property under D.C. law); see also McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951) (in an annulment action for a marriage contracted in Virginia, applying Virginia law); Hitchens v. Hitchens, 47 F. Supp. 73 (D.D.C. 1942) (in an annulment action for a marriage contracted in Maryland, applying Maryland law). Here, the Claimant alleges that she and the NH began living as a married couple in Australia in 1991 and that they have lived in New South Wales, Australia from 1996 to the present as a married couple. Thus, District of Columbia courts would look to Australia’s laws. Australia law does not authorize “common-law marriage” as a legal marriage but does recognize a “de facto relationship” as a marriage-like relationship that carries many of the same rights and benefits provided to a married couple under the law. In the absence of a legal marriage under Australia’s laws, we believe that District of Columbia courts would find that the Claimant and the NH are not validly married. Thus, there is legal support for the agency to find that the Claimant is not the NH’s “spouse” based on a valid marriage. See 42 U.S.C § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. We next consider whether the Claimant could inherit a spouse’s share from the NH under District of Columbia intestate succession law. See 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

2. 2. 

   Inheritance of a Spouse’s Share under Intestate Succession Law: There is evidence of a de facto relationship, which conveys the right to inherit a spouse’s share under intestate succession law of New South Wales, Australia.

   The District of Columbia follows the general conflict of law rule that the law of the decedent’s domicile determines intestate inheritance rights. See Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.C. Cir. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124, 126 (D.D.C. 1958) (in deciding whether Maryland law, where the adoption occurred, or District of Columbia law, where the decedent was domiciled when she died, applied for purposes of determining the right of an adopted child to inherit, the court noted that the general rule is that “the law of the domicile of decedent governs distribution of personal property and the law of the situs of real estate governs its descent”)); Restatement (Second) of Conflict of Laws § 260 Intestate Succession to Movables (March 2023 Update). As stated, the NH and the Claimant have lived in New South Wales, Australia from 1996 to the present. As the NH is domiciled in Australia, District of Columbia courts would consider whether the Claimant has established a relationship with the NH under Australia’s laws that would afford the Claimant the right to inherit a spouse’s share under intestate succession law.

   As noted, although Australia does not authorize common-law marriage as a legal marriage, Australia does recognize a “de facto relationship” as a marriage-like relationship that carries many of the same rights and benefits provided to a married couple under the law. De facto relationships were first legally recognized in New South Wales law in particular in 1984.

   In evaluating the Claimant’s status as the NH’s “spouse” for Title II benefits, the determinative issue we are considering is whether partners in a de facto relationship inherit a spouse’s share under intestate succession law. Inheritance law in New South Wales, Australia is governed by the Succession Act 2006 (NSW). Under this Act, if an intestate leaves a spouse but no issue, the spouse is entitled to inherit the whole of the intestate estate. Under this Act, for purposes of the rules of intestate succession, “spouse” is defined as a person who was either married to or in a “domestic partnership” with the intestate immediately before his or her death. And a “domestic partnership” is defined as (1) a registered relationship within the meaning of the Relationships Register Act 2010 (NSW), or (2) a de facto relationship that (a) has been in existence for a continuous period of two years or (b) has resulted in the birth of a child. Thus, a partner in a de facto relationship has the right to inherit a spouse’s share under intestate succession law of New South Wales, Australia.

   In New South Wales, it is possible to register a de facto relationship under the Relationships Register Act 2010 (NSW). In some legal contexts, including the Succession Act 2006 (NSW), as outlined above, registration alone can prove the existence of the de facto relationship; however, it is not a requirement for legal recognition of the de facto relationship. We do not have information indicating that the Claimant and the NH registered their relationship under the Relationships Register Act 2010. The Claimant and the NH have not had any children. Thus, to inherit as the NH’s spouse under the Succession Act 2006 (NSW), the Claimant must prove a de facto relationship with the NH that lasted at least two years.

   Under Australia law, a person is in a de facto relationship with another person if: the persons are not legally married to each other; the persons are not related by family; and considering all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. The circumstances of the relationship include any or all of the following: duration of the relationship; nature and extent of their common residence; whether a sexual relationship exists; the degree of financial dependence, interdependence, and support; ownership, use, and acquisition of property; mutual commitment to a shared life; whether the relationship is or was registered under law; the care and support of children; and the reputation and public aspects of their relationship. No particular finding as to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. A de facto relationship can exist between two persons of different sexes and between two persons of the same sex. In determining whether a de facto relationship exists, a court is entitled to attach such weight to any matter as may seem appropriate to the court in the circumstances of the case.

   Here, the Claimant has provided signed statements from the Claimant, the NH, the Claimant’s brother, and the NH’s niece to support her claim of a marital relationship with the NH. We consider the circumstances of their relationship to determine if they have a relationship as a couple living together on a genuine domestic basis in light of the evidence as presented in these statements:

   • •

     Duration of the relationship: The NH and the Claimant contend that they have been in their relationship since January 1991. Thus, their relationship has lasted over 34 years.

   • •

     Nature and extent of their common residence: The NH and the Claimant state that they began living together in Australia as spouses in a “common-law marriage” or a marriage-like relationship in 1991 and they have lived together continuously since that time as a married couple in homes that they bought together. The NH’s niece and the Claimant’s brother corroborate their 34-year relationship living as a married couple in the same homes in Australia.

   • •

     The degree of financial dependence, interdependence, and support: The NH stated that when they began living together as a married couple in 1991, they told one another that their “life together will be socially and financially connected permanently.” They report co-owning several homes over the years and state that they are named as co-owners of their home on the title documents. They report having a joint bank account that they opened in 1996. They report filing annual tax returns with the Australian Taxation Office and identifying themselves as spouses in the returns.

   • •

     Ownership, use, and acquisition of property: They report co-owning several homes and state that they are named as co-owners of their home on the title documents. They report having a joint bank account that they opened in 1996. They report filing annual tax returns identifying themselves as spouses.

   • •

     Mutual commitment to a shared life: When they began living together, they told one another that they wanted to be partners for life. The Claimant wrote: “We were and are recognized as spouses by Australian law with the same rights and duties as a couple who had a formal marriage certificate.” The NH wrote that when they began living together, he understood that “[o]ur life together will be socially and financially connected permanently.” Their mutual commitment to a shared life is evidenced by their 34 years together.

   • •

     Whether the relationship is or was registered under law: There is no information indicating that they registered their relationship.

   • •

     The reputation and public aspects of their relationship: The NH’s niece and the Claimant’s brother corroborate their 34-year relationship living as a married couple in the same homes in Australia. The Claimant’s brother wrote: “They have lived together since around 1991 in a loving relationship. They have owned three homes.” The NH’s niece wrote: “[The Claimant and the NH] have effectively been a married couple at least since they bought their house in Koolewong together over 25 years ago, and they were partners for years before that as well. It has been clear for many years that theirs is a lifelong partnership fully equivalent to marriage, and in Australia their partnership is legally recognized as a common law marriage. [The Claimant] is a part of our family and I know that [the NH] is part of hers.” They both reported that the NH and the Claimant were generally known as a married couple, that they considered them to be a married couple, and that they heard them refer to one another as spouse, partner, and husband/wife.

 

As set forth above, under Australia law, a person is in a de facto relationship with another person if: the persons are not legally married to each other; the persons are not related by family; and considering all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. The Claimant and the NH are not legally married to each other nor are they related. Based on the statements provided and the circumstances outlined above, we believe District of Columbia courts, applying the Australia’s laws, would find sufficient evidence of a de facto relationship between the NH and the Claimant that began in January 1991 such that the Claimant could inherit from the NH as his spouse under the intestate succession law of New South Wales, Australia.

 

CONCLUSION

 

Based on their de facto relationship under Australia’s laws, we believe there is legal support for the agency to find that the Claimant is the NH’s “spouse” for purposes of determining the Claimant’s entitlement to Title II spouse’s insurance benefits on the NH’s record.