MICHIGAN — The prima facie case of a common-law marriage would, not, be defeatca by inconclusive and mixed evidence concerning legal capacity since the party attaching., the validity of the marriage would bear the burden to show that the marriage "is invalid.

OD 0140 — MI

In your memorandum to us dated February 21, 1980, you sought clarification of a previous memorandum from the Office of General Counsel concerning Michigan law on the presumption of validity of a common-law second marriage. The previous memorandum (RA V (Crawley) to GLPSC, dated May 24, 1977) cited the decision of the Michigan Court of Appeals in the case In Re Estate of Leonard, 45 Mich. App. 679, 207 N.W. 2d 166 (1973) for the proposition that there is a presumption of validity for a common-law second marriage, provided that "both parties must have the legal capacity to enter into their common-law marriage." In particular, you are now inquiring whether "legal capacity" in this context means that it must be shown that any previous marriages have been terminal. You suggest that if this is the interpretation, then there is no need for a presumption, since the validity of the second, common-law marriage would be "unequivocally valid."

For the reasons which we will discuss in Part I of this memorandum, we have concluded in clarification of the May 24, 1977 memorandum as follows:

1. 1. 

   It does not appear necessary under Michigan law to demonstrate affirmatively that a prior marriage has been terminated in order to raise a presumption of validity of a subsequent, common-law marriage. However, such a presumption can be rebutted and defeated by evidence showing that a prior marriage has not been terminated and, therefore, the individual involved did not have the legal capacity to enter into the subsequent, common-law marriage.

2. 2. 

   To the extent that the Leonard decision reaches a different conclusion which would require such an affirmative demonstration to even raise the presumption, that decision appears to be a shifting of ground in applying the principles approved. by the Michigan Supreme Court.

3. 3. 

   The May 24, 1977 memorandum accurately summarized the Michigan decisions and correctly responded to your inquiry at that time whether the presumption applied to common-law as we11 as ceremonial marriages.

As to the first and second points, discussion among attorneys in our office indicates that these matters are open to different interpretations. The next decision of the Michigan Supreme Court dealing with the presumption will, we hope, resolve these matters. Since it is our responsibility to assist you in applying Michigan law as we believe the courts of Michigan would do, we have concluded that the interpretations offered in points one and two are those which the Michigan Supreme Court would most likely adopt today if the issues were fully presented to it.

In order that we may keep you currently informed on the state of the law on this issue in Michigan, we suggest that you refer to us all Michigan cases involving evidence of a prior marriage and a subsequent, common-law marriage and the question of legal capacity to enter into the latter.

In Part II of this memorandum, we have evaluated the subsequent, common-law marriage of James and Agnes D~ in light of our legal conclusions from Part I.

Part I: The Legal Framework

A. The Law of the Presumptions Prior to Leonard

First, we want to make clear our understanding of Michigan law prior to the Leonard decision. The Michigan Supreme Court in Doertch v. Folwe11 Engineering Co. et al., 252 Mich. 76, 233 N.W. 211 (1930) summarized we11 the underlying principles:

The law presumes the validity of a ceremonial marriage. It is said this presumption is one of the strongest known to the law. It is founded, not only on a presumption of innocence of the crime of bigamy on the part of the contracting parties and on the regularity of the acts of licensing and officiating officers, but has a basis in the public policy to foster respectability and to protect offspring from the taint of illegitimacy. In civil actions, the law also presumes that a valid marriage, once shown to exist, continues in force both as to life of the parties, within the statutory seven-year period, and the want of their divorce ....

These presumptions, like most others, are not conclusive. They may be rebutted by a showing of facts or circumstances which either may establish the validity or invalidity of the marriage conclusively or raise an issue to be determined upon preponderance of the evidence. Where, however, the validity of a subsequent as against a former marriage rests wholly on presumptions of law, the presumption favoring legality of the later marriage, if it were ceremonial, will prevail over the one which favors a continuance in force of the prior marriage. 233 N.W. at 212.

See also Weinert v. Tallman, 346 Mich. 388, 78 N.W. 2d 141, 143 (1956), confirming the principle that the unrebutted presumption of validity of a subsequent marriage will prevail over the presumption of continuance of a prior marriage.

Although the Doertch court speaks of the presumption of validity for the second marriage prevailing over the presumption of continuation of a prior marriage "if (the later marriage) were ceremonial," Michigan has in fact treated a common-law second marriage with much the same deference as a ceremonial second marriage. In May v. Meade, 236 Mich. 109, 210 N.W. 305, 307 (1926), the Supreme Court had cited with approval a Mississippi decision indulging the same presumption of validity for the second marriage in the case of a common-law relationship as the law indulges in favor of a ceremonial second marriage. This position was relied upon subsequently in Watts v. General Motors Corporation, 308 Mich. 499, 14 N.W. 2d 68, 69 (1944). In Watts Women had successively entered into apparent common-law marriages with one man who died in 1942: Mabel R. in 1917 and Winifred in 1933. Winifred asserted the presumption of validity of the subsequent, common-law marriage and its dominance over a presumption of the continuation of any prior marriage. The Watts court on these facts recognized that the presumption was raised, but held that the presumption was rebutted by adequate evidence that the prior wife continued to live and was still legally married to the decedent in 1942. 14 N.W. 2d at 68-70.

With regard to rebuttal of the presumption in favor of second marriage, the courts in May and Watts both quoted with approval the following language from the syllabus summary the decision in Killackey v. Killackey, 156 Mich. 127, 120 N.W. 680 (1909):

In the absence of any evidence as to the date of prior marriage, or as to relation of the parties since such marriage, or as to the continuance or termination of such relations, the presumption of legality which attaches to a second marriage is held, not to have been impeached. 120 N.W. at 680 (emphasis added).

More recently, in In Re Estate of Adams, 362 Mich. 624, 107 N.W. 2d 764 (1961), the Michigan Supreme court reaffirmed the principles stated in Doertuh:

As in the Doertch case, James ~ whereabouts were wholly unaccounted for between the time of his departure from . .. (his prior wife) in 1927 and his marriage to Corinne ~ in 1935 ... In the absence of any clear and positive evidence establishing his marital status at the time of his marriage to Corinne ~ in 1935, this case likewise rested upon the balancing of the presumptions of law referred to in the Doertch case, and we must, therefore, hold that the presumption in favor of the validity of the second ceremonial marriage was dominant. 107 N.W. 2d at 767 (emphasis added).

The Adams court was asked to consider the decisions in Watts and in Braymer v. Overton Machine Co., 324 Mich. 648, 37 N.W. 2d 659 (1949), as well, both of which had involved subsequent Common-law, not ceremonial, marriages. Having reviewed these decisions the court asserted:

In the latter two cases, ... while recognizing the efficacy of the presumption here involved the Court fours] evidence sufficient to impugn the validity of the second marriage. In each case the result reached by the Court may properly be questioned but the important point here is that the Court in those cases did recognize the principle of law we here apply. 107 N.W. 2d at 767 (emphasis added).

Explicitly, the Adams court confirmed the use of the presumption in favor of validity of the subsequent marriage in the Watts and Braymer circumstances involving a common-law second marriage.

In Beaudin v. Suarez, 365 Mich. 534, 113 N.W. 2d 818, 819 (1962), the Michigan Supreme court held that a subsequent, ceremonial marriage was invalid where there was "a clear showing" that an earlier, common-law marriage had not been dissolved. The court's language does not illuminate the issue we are concerned with, however: "The presumption of validity of a second, ceremonial marriage (citing Adams) does not apply where, as here, there is a clear showing that the earlier marriage has not been dissolved." 113 N.W. 2d at 819. This could mean either that the presumption is rebutted and does not hold, or in the alternative that it was never raised. Significantly, however, the underlying authority is Adams.

In Moots v. Secretary, United States Department of Health, Education and Welfare, 349 F. 2d 518 (4th Cir. 1965), social security benefits were at issue in federal court. The case involved a prior, ceremonial marriage and a subsequent, common-law marriage. The Moots court noted that the proponent of the later common-law marriage asserted "the rule recognized by the Michigan courts that the presumption favoring the validity of a subsequent marriage overrides the presumption favoring the continuance of a prior marriage (citing Adams and Doertch)," 349 F. 2d at 520. The Moots court distinguished the result reached

First, the second marriage in Adams was a ceremonial marriage rather than the common-law marriage we have in this case, and ... the ;uterus opinion itself seems to suggest that the presumption of the validity of a second ceremonial marriage is entitled to greater weight than when the later marriage is a common-law one. Secondly, the evidence in this case that the (prior) marriage . .. was never dissolved by divorce is considerably more extensive than the evidence in the Adams opinion pertaining to the termination of the first marriage. Thirdly, the evidence in this case indicates that (there was significant knowledge of the whereabouts and activities of the absent spouse indicating continued contact between the parties to the prior marriage). 349 F. 2d at 520-521.

Significantly, the Moots court accepted the concept that the presumption could arise in favor of a subsequent, common-law marriage in a case such as the one before it, although characterizing such a presumption as being of less weight than one involving a subsequent, ceremonial marriage. Moots does not specifically state, however, whether the presumption was raised, but rebutted, or whether it was never raised in that case. The court merely affirmed the legal result reached by the social security hearing examiner that "the (prior) ceremonial marriage ... had never been terminated ... (and) was a legal impediment which prevented the existence of a valid (subsequent) marriage — ..." 349 F. 2d at 520.

Finally, in John Hancock Mutual Life Insurance Company v. Willis, 438 F. 2d 1207 (6th Cir. 1971), the federal court relied upon Adams as authority for its statement of the Michigan law:

The general rule is that any ceremonial marriage is presumed valid, but that its validity may be rebutted by evidence indicating that it was not lawfully entered into: thus the most recent ceremonial marriage is presumed to be valid over any preexisting marriage. 438 F. 2d at 1208.

The court concluded that evidence she a genuine issue of fact as to whether the prior marriage had ended, including an affidavit of the prior spouse denying knowledge of divorce or other termination of her marriage and an affidavit indicating that the errant spouse admitted three years after his subsequent marriage that he had never been divorced from his prior spouse.

From all of the foregoing cases we may summarize several well-established principles in the Michigan law relating to these presumptions:

1. 1. 

   The law presumes the validity or legality of a marriage and this is one of the strongest presumptions in the law.

2. 2. 

   The law also presumes that a valid or legal marriage continues in force while the two parties to it live and have not been formally divorced.

3. 3. 

   Both of these presumptions may be rebutted by adequate evidence to persuade the tribunal that they are without foundation in fact.

4. 4. 

   Both of these presumptions. apply to a common-law marriage as well as to a ceremonial marriage, l/although they may have greater weight if they concern a ceremonial marriage.

5. 5. 

   Where the validity of the subsequent marriage as against the prior marriage must be decided based only on the two presumptions and in the absence of adequate evidence to rebut either presumption, the presumption of legality of the subsequent marriage will prevail over the presumption of continuation of the prior marriage.

B. The Leonard Decision and Elements Necessary to Establish Common-Law Marriage

In 1973 the Court of Appeals in Leonard summarized in similar fashion and approved at least the first four of the foregoing five principles. However, the Leonard court refused to permit the presumption of validity of the subsequent, common-law marriage. The court decided that the party seeking its benefit had not even succeeded in raising the presumption, because he had not affirmatively demonstrated that the undisputed prior marriages of both spouses had been terminated. The Leonard decision recreates such an affirmative demonstration both as a matter of establishing a prima facie case for the very existence of a common-law marriage and as a matter of raising the presumption of its validity as against any prior marriage. The first matter involves application of the Michigan law on common-law marriage. The second involves application of the Michigan law on presumption of validity of a subsequent marriage. In our judgment, the Leonard court has shifted ground in applying both of these aspects of Michigan law. 2/

We have collected the following statements from other court decisions summarizing the elements necessary to be shown by a party who would establish his common-law marriage before a Michigan court.

This court has not deviated from the implications of Hutchins v. Kimme11, 31 Mich. 126, 18 Am. Rep. 164, where Mr. J ~ said: "Whatever the form of ceremony, or even if all ceremony was dispersed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties ..." Westfall v. J. P. Burroughs & Son, 280 Mich. 638, 274 N.W. 358, 359 (1937) (emphasis added).

(Citing approvingly Proctor v. Bigelow, 38 Mich. 282, 283:) "The marriage was proved by her son's testimony, showing that she and his father lived together and brought up a large family, treated each other on all occasions as husband and wife, were so reputed in the family and by others, addressed each other as such, and jointly signed papers in that relation."

In (Michigan) a marriage is not proven by evidence only that the parties, inter $e, agreed to take each other for husband and wife. To establish a nonceremonial marriage, there must be proof, not only of the agreement, but of the setting up of the relation of husband and wife by cohabitation. The parties must act in conformity with such an agreement and live together and cohabit as husband and wife — live" together in that relation. (citing Hutchins) People v. Spencer, 199 Mich. 395, 165 N.W. 921, 923 (1917) (emphasis added).

As has been said in numerous decisions of this court, the test of a common-law marriage is: Did they presently agree to take each other for husband and wife, and thereafter live together in that relation? Griffin v. Griffin, 225 Mich. 253, 196 N.W. 384, 385 (1923) (emphasis added); see also, Hannigan v. Hannigan, 43 N.W. 2d 895, 896 (Mich. 1950); In Re Wall's Estate, 99 N.W. 2d 599, 600 (Mich. 1959).

... (T)o establish a common-law marriage, it is not alone sufficient that the parties cohabited and were known as husband and wife, but it is essential that it also be shown that there wins a present agreement between the parties to take each other as husband and wife. (citing Hutchins, Spencer and Griffin) In Re Meredith's Estate, 279 Mich. 298, 272 N.W. 683, 685 (1937) (emphasis added).

We have consistently held that where parties who were competent to enter into the marriage contract presently agreed to take each other as husband and wife, and subsequently cohabited as such, the marriage was valid. Westfall, supra, 274 N.W. at 359 (emphasis added).

In (Michigan a common-law) marriage is recognized if it is shown that there was a present agreement between the parties to take each other as husband and wife, followed by cohabitation. (citing Meredith's Estate) Gratings v. Kettle, 306 Mich. 308, 10 N.W. 2d 895, 896 (1943) (emphasis added).

A valid common-law marriage recreates the present agreement to live together as husband and wife made by persons who are free to marry, and their subsequent open cohabitation together as husband and wife. (citing Spencer), In Re Estate of Leonard, supra, 207 N.W. 2d at 168.

In Cox v. Weinber9er, 404 F. Supp. 1384 (E.D. Mich. 1975), a case involving social security benefits, the federal court was called upon to apply Michigan law to determine whether a common-law marriage existed between the claimant, Eva, and James ~. Constituting the evidence tending "to establish a common-law marriage," 404 F. Supp. at 1386, the following matters were enumerated by the court: a signed statement by James that he had a common-law marriage with Eva; a deed conveying property from James to Eva, "his wife;" a bank account held in the name of James E. ~ or Eva ~; an insurance certificate listing as beneficiary "Eva ~ —Wife;" a signed stature by James that he believed he was legally married to Eva and that he "felt just as married as with my previous wives" and that his previous marriages were ceremonial; a signed statement by Eva that she considered their common-law marriage binding; and James' complaint for divorce alleging that he and Eva had entered into a common-law marriage.

The Cox court concluded:

Under the Stafford for common-law marriage set forth in Meredith, these documents and representations by James and Eva ~ are clearly sufficient to establish an agreement to take each other .as husband and wife. Were this court to apply the Michigan law to these facts as an original totter, it would be compelled to find that James and Eva had a common-law marriage. 404 F. Supp. at 1387.

The federal court reached this conclusion even though the evidence of James which was considered included specific references to his previous ceremonial marriages without any affirmative showing that these had been discontinued and he had the legal capacity to marry Eva.

Reviewing these cases together, we find that only the Leonard decision unequivocally requires that, in order to establish a common-law marriage as an initial burden of proof, the proponent must show that both parties were free to marry, as well as their present agreement to live together as husband and wife and their subsequent open cohabitation as husband and wife. The authority which Leonard cites for this proposition is Spencer, supra. But Spencer does not include the element of being free to marry in its statement of the Michigan law: this third element is found only in the quotation of the entire findings of fact entered by a lower tribunal. See, 165 N.W. at 922.

The second most prominent source of authority for the Leonard proposition might be Westfall, supra, which states that Michigan courts have consistently held a common-law marriage to be valid where the three elements are found (the parties presently agreed to take each other as husband and wife; subsequently they cohabited as such; and they had been competent to enter into the marriage). Yet this statement of principle is found immediately following the quotation from Hutchins, supra, which the Westfall court states that Michigan has never deviated from: that quotation does not include the element of being free to marry as required in order to be "sufficient to constitute proof of a marriage binding upon the parties." We believe that these two apparently inconsistent statements Westfall of what is necessary for the common-law marriage can be reconciled by understanding the difference between establishing a marriage as an initial burden of proof and impeaching the validity of such a marriage as a matter of rebuttal. Competency to enter into the marriage can defeat the validity of the marriage, but is not necessary to establish the existence of a marriage as an initial matter.

The Leonard decision itself states:

Evidence offered to prove a common-law marriage must be clear and convincing. The party who asserts the marriage bears this burden .... Once the proponent of such marriage makes out his prima facie case, the burden is upon the party attacking its validity to show that the marriage is invalid. 207 N.W. 2d at 168.

Read together with the weight of Michigan Supreme Court authority recited above concerning the common-law marriage, we conclude that the proponent need not affirmatively prove legal capacity to enter into such a marriage in order to establish the existence of the marriage as an initial burden of proof. However, if evidence is then introduced which demonstrates in fact the lack of legal capacity (e.g., continuing prior marriage, or a state statute prohibiting common-law marriage), then such marriage is invalid and

C. The Leonard Decision and the Presumption

We believe that the Leonard decision has also shifted ground in applying Michigan law concerning the presumption of validity of a subsequent marriage, which is held to take precedence over the presumption of the continuation of a prior marriage.

This shift results in the anomalous position which you questioned in your memorandum to us: if, in order to raise the presumption, one must establish that any prior marriage is terminated, then, at least as regards the relation between the subsequent and prior marriages inmost cases, it is no longer a presumption, but "unequivocal" proof.

In our view the Leonard court bas ignored the Killackey language quoted above at page 3, which is a1so underlined as part of the principle number five above at page 6. The principle states that where there is no adequate evidence to indicate that the prior marriage either continues or was not terminated until after the subsequent marriage it is presumed that it was terminated before the subsequent marriage and the latter is valid. Adams specifically confirms this principle, both as to ceremonial and common-law subsequent marriages. Leonard, in contrast, states that where there is no such adequate evidence, the court may not presume a legal basis for the subsequent marriage.

This is a shift of ground on the part of the Leonard court which we believe is not justified by the case law it relied upon. In addition to the decisions in Spencer, Westfall, Watts, Doertch, May, Killackey and Weinert already referred to in this memorandum, the Leonard court relied upon the result in three additional cases: In Re Estate of Osborn, 273 Mich. 589, 263 N.W. 880 (1935); Crockett v. Consolidated Paper CO., 281 Mich. 571, 275 N.W. 253 (1937); and Braymer v. Overton Machine CO., supra, page 4.

In each of these three cases, the Michigan Supreme Court held that a subsequent common-law marriage was invalid. However, in each of the three cases there was actual evidence that the prior marria9e continued, either because both spouses remained alive, 263 N.W. at 881, 275 N.W. at 253, or because "testimony show(ed) that this (prior) marriage had not been terminated." 37 N.W. 2d at 661. By contrast, there was no evidence in Leonard that the prior marriages of the spouses continued, just as there was no "competent" evidence to show that either of the prior marriages was terminated.

We think that the three cases of Osborn, Crockett and Brayrmer support the proposition that the presumption of validity of a subsequent, common-law marriage can be rebutted by evidence showing that the prior marriage continued. They do not clearly stand for the different proposition asserted by the Leonard court that this presumption cannot even be raised unless there is evidence that the prior marriage was in fact terminated. 3_/

In Leonard the court either ignored or was never given the benefit of the Adams decision, which has become one of the most frequently cited Supreme Court opinions concerning operation of the presumption of validity. While it is true that the presumption was applied in Adams to a subsequent, ceremonial marriage, it is also indubitably true that Adams confirmed the principle of the application of the same presumption in Watts and Braymer, which involved subsequent, common-law marriage. Adams differed from Watts and Braymar, where the presumption was held to have been rebutted, in that there was in Adams an "absence of any clear and positive evidence" establishing whether the prior marriage continued. In this respect Leonard is basically the same factual situation as Adams. On such facts, Adams, Watts, Braymer, Doertch, and Killackey all point to the conclusion that the presumption of validity of the subsequent marriage (even a common-law marriage) would be raised and upheld as unrebutted.

Our discussion of the more recent cases of Beaudin, Moots and Willis, above at pages 4-6, suggests that these may we11 be read to support this rationale that the presumption can be raised, but then rebutted by clear evidence that a prior marriage was never terminated. It is much more difficult to read all of these cases which refer approvingly to the presumption rationale as being consistent with Leonard.

It may be that the Court of Appeals in Leonard did not more carefully consider how its refusal to raise the presumption of validity of the subsequent, common-law marriage would fit with Watts and Adams because there was a more substantial reason for refusing to recognize the presumption in the first place. In Leonard the parties who were alleged to have established a subsequent common-law marriage were inconsistent in that they held out to a wide variety of persons and agencies in the community that they were not in fact married. 207 N.W. 2d at 170.

D. CONCLUSION

For the foregoing reasons, we conclude that the Michigan Supreme Court would apply Michigan law concerning the relationships of the presumptions involving prior and subsequent marriages differently than did the Court of Appeals in Leonard. The Supreme Court would more likely adhere to the interpretation which it articulated in Adams and Watts, above at pages 3 and 4. We believe the five numbered principles at page 6 above accurately summarize these two Supreme Court decisions and the case law on which they are based. To the extent that the Leonard decision may be interpreted to conflict with these principles we believe that it should not be relied upon at this time.

The May 24, 1977 memorandum from our office was concerned with your inquiry whether the presumption of validity of the subsequent marriage also applied to common-law marriage. The memorandum is correct in responding that the presumption does so apply and in summarizing the holdings of the Michigan decisions, including the Leonard case. As noted at note 2, page 3 of the May 24 memorandum and as we have discussed more fully here in response to your inquiry, the Watts and Leonard courts reached their results with each using a different rationale.

We must emphasize, however, that the Social Security Administration plays a different role than does a Michigan court. The Administration is called upon to investigate, as much as is necessary and feasible, the actual facts surrounding family relationships. A court may enter judgment based only on the facts which are brought before it by the parties involved in a suit. Therefore, it is to be expected that the Administration would not use the presumption of validity of a subsequent, common-law marriage until after a reasonable investigative effort had been made to determine the facts without benefit of presumption.

As suggested above at page 2, we ask that you refer cases of the type there described to us for an opinion so that we may keep you abreast of Michigan legal developments affecting these cases.

Part II: Application of the Law to the Dolsen Case

The elements required to establish a common-law marriage in Michigan, it will be recalled, are: a) the agreement at the time of "marriage" to take each other as husband and wife; b) the subsequent living together professedly in the relation of husband and wife. As an initial burden of proof, the D~ 's have established both of these elements from their statements made to the Social Security Administration (SSA); the statements of two persons having knowledge of the relationship to the Veterans' Administration; a 1955 land contract and checking account instrument showing "Agnes C. D~, his wife" and "James or Agnes C. D~" respectively; and a 1956 tax payment showing "Mr and Mrs. D~." SSA apparently has no serious question about these elements of the common-law marriage.

Agnes D~ was married to Lorenzo S~ in 1934 (See Form SSA-2 F6 dated 5/15/79) and apparently separate from him in about 1936 or 1937 in Lansing, Michigan. She has produced no definitive evidence that this prior marriage was ever terminated and, therefore, it raises the question whether she had the legal capacity to marry James D~ in 1947. Since the question of legal capacity involves a prior marriage, it may be addressed either from the perspective of the law involving presumption of validity of a subsequent marriage or from that of the law involving validity of a common-law marriage itself (See, our introductory discussion of the Leonard decision at the top of page 7 above). In order to answer the question, we must determine whether the evidence concerning the continuation of the prior marriage is sufficient to rebut either the presumption or the prima facie case establishing this common-law marriage (See, quotation from Leonard at the bottom of page 10 above). Concerning rebuttal of the presumption, the Doertch court stated that:

(These presumptions) may be rebutted by a showing of facts or circumstances which either may establish the validity or invalidity of the marriage conclusively or raise an issue to be determined upon preponderance of the evidence. 233 N.W. at 212.

What is the evidence in the D~ case concerning continuation of the prior marriage? Agnes D~ stated that she was informed her prior spouse Lorenzo did not die until 1958, but there is no confirmation of his date of death. It appears that there was no contact between her and Lorenzo and that nothing whatever was known of his whereabouts after they separated. The three items of evidence concerning whether there was a divorce are not conclusive. First, SSA actually checked the records of the state and of Ingham County (Lansing) and found that there was no record of a divorce between Lorenzo and Agnes C. S~. Second, Agnes replied on Form SSA-2 F6 dated 5/15/79, Application for Wife's Benefits, to the questions "How marriage ended" and "When" with the responses "his death" and "1958," although it is possible that she did not realize the significance of completing the blanks in this fashion, given her other evidence. Third, Agnes stated that a person now deceased had informed her before her marriage to Dolsen that her prior marriage to S~ had been terminated by divorce, but that she did not know where or when the divorce took place.

The interim period between her separation from S~ and her marriage to D~ was about ten years and her subsequent marriage has continued for about thirty-two years. Three children have been born of the D~ marriage.

How does this evidence fit into the law of the presumption of validity of the subsequent marriage? We believe the most significant features of the evidence are the absence of positive evidence concerning the whereabouts and activity of Lorenzo, the prior spouse, and the absence of positive evidence concerning whether the prior marriage was terminated. By comparison, in Adams there was also a lack of knowledge concerning the whereabouts and activity of the prior spouse James, who was also unavailable to the court, and the presumption in favor of the subsequent, ceremonial marriage there was upheld. In Moots and Beaudin, however, there was considerable knowledge of the whereabouts and activities of the former spouses, Mary and Clarence and Mr. and Mrs. B~ respectively. In both cases the presumption in favor of the subsequent marriage was rebutted (a common-law marriage in Moots and a ceremonial marriage in Beaudin).

Similarly, there was no evidence concerning whether the prior spouses had been divorced in Adams, while in Beaudin they lived together right up to the subsequent marriage and in Moots there was evidence that the errant prior spouse had made conflicting statements about whether his prior marriage ever terminated. In the D~ matter, there is the statement by Agnes that a third party had told her the prior marriage was terminated. On the other hand, there is evidence that no divorce was recorded in Michigan or Ingham County and that on one form Agnes indicated the prior marriage ended only with Lorenzo's death in 1958. This is a mixed bag and none of it is very positive concerning whether there was or was not a divorce (except that there was no divorce in Michigan).4/ Agnes' response on the form may be somewhat similar to the conflicting statements in Moots but, as noted above at page 15, it may not be certain what Agnes intended to say when only completing a blank on a form in one or two words. We believe that this collection of evidence concerning termination of the prior marriage must be characterized as an absence of positive information, as in Adams.

The second most significant feature of the evidence is that the subsequent marriage in the Dolsen matter is common-law and both Adams and Moots suggest that this weakens the strength of any presumption of validity raised on its behalf in comparison with a presumption of validity of a subsequent ceremonial marriage. However, both Adams and Moots accept that the presumption can be raised for the common-law marriage.'—

Finally, we believe that Michigan courts have referred to facts concerning the length of the subsequent marriage and of the interim period between prior and subsequent marriages, as well as to the birth of children, in order to have a better sense of whether public policy should sustain the subsequent marriage based on a presumption. In Beaudin, for example, the court noted that there was virtually no interim between the prior marriage relation and the subsequent one and that the latter lasted intermittently for about three months. The Beaudin court was quick to assert that no presumption of validity of such a subsequent marriage (even through ceremonial) could be sustained. In Moots there were several intermediate common-law marriages after the prior marriage and before the subsequent marriage which were involved in that case. Each followed immediately upon the other and the final, subsequent marriage lasted just three years. By contrast, in Adams the interim period between marriages lasted eight years and the subsequent marriage twenty-one years. In the D~ matter, the interim was ten years and the subsequent marriage thirty-two years.

We have not discussed the factual basis of the Watts decision because the Adams court criticized the result reached in that case. Watts appears to us to be similar to the D~ matter in most respects and to Adams in everything except that the latter case involved a subsequent ceremonial marriage. In Watts, unlike Adams, the result was that the presumption of validity of the subsequent, common-law marriage was rebutted rather than sustained.

Based on all of the foregoing comparisons, we conclude that, under the authority of the Adams decision, the Michigan Supreme Court would hold that the presumption of validity of the subsequent, common-law Dolsen marriage was raised and was not rebutted by the evidence shown. This result would be attributable primarily to the absence of significant and positive evidence concerning the whereabouts of Lorenzo, his date of death, and termination of the prior marriage in other places than Michigan and to the extensive time lapsing between the prior and subsequent marriages and the extensive time during which the latter endured and three children were born.

In the hope that it might assist you to picture our comparative evaluations of critical features of the cases, we have appended a table of comparison.

We also conclude that the prima facie case of common-law marriage would not be defeated by the inconclusive and mixed evidence concerning legal capacity, since the party attacking validity of the marriage would bear the burden "to show that the marriage is invalid." Leonard, 207 N.W. 2d at 168.

1_/ We would emphasize that these principles, to the extent they affect common-law marriages, are applicable only to common-law marriages entered into prior to January 1, 1957, as is true in the case of James D~ here. By statute, Michigan bars contracting common-law marriages after that date. Mich. Star. Ann., §25.2.

2_/ Note, however, our comment, above at page 2, that these issues are subject to other interpretation.

3_/ The distinction between these two positions is we11 illustrated in the immediate juxtaposition of the rationale quoted from Braymer with that reached by the court in Leonard, though the Leonard court was apparently unaware of its shift in ground:

The (Braymer) Court ... stated:

"... Assuming . .. that plaintiff made a prima facie case of the existence of the common-law marriage, ... a presumption of its validity was established, and ... the burden then shifted to defendants to prove ... that she had previously been married and that that marriage had not been dissolved ... In the light of this record it is unnecessary for us to determine the exact extent of defendants' burden, because plaintiff's previous marriage was undisputed, and the testimony shows that this marriage had not been terminated."

Here (in Leonard) too ... (b)oth of the prior marriages ... are undisputed and no competent evidence was ever offered to show either was terminated. 207 N.W. 2d at 170. (emphasis added).

Braymer turned on the fact that some evidence showed that the prior marriage was not terminated; Leonard turned on the different ground that no evidence was adduced to show the prior marriages were terminated.

4_/ In Moots there was knowledge of the errant spouse's whereabouts and therefore divorce records were able to be checked "in all the places where either Clarence or Mary had ever lived." 349 F. 2d at 520.

MICHIGAN—- The presumption of validity of a subsequent, common- law marriage will attach unless evidence shows the prior marriage was not terminated.

In response to your Memorandum dated April 13, 1989 in the above-captioned matter, we would advise you that, under Michigan law, a presumption of validity of the subsequent, common-law marriage between Ora and Loretta S~ beginning in 1936 has been raised and has not been rebutted by the evidence in the claims folder.

The relevant facts may be summarized as follows. Loretta L. S~ filed a claim for widow's benefits on Ora S~ 's account shortly after he died in January 1981. She stated that he and she were married in Detroit, Michigan on August 8, 1936. Loretta acknowledged that Ora had been previously married but stated that she knew very little about his prior spouse.

Loretta later informed the district office that she and Ora had not been ceremonially married as she had first reported. Instead, she stated that the two had lived together and held each other out as husband and wife since 1936. One daughter was born to them in 1937. Loretta asked SSA not to question her daughter or other relatives about her relationship to Ora because she did not want them to know that she and Ora had not been ceremonially married. Confirming Loretta's statement that she and Ora held themselves out as husband and wife are warranty deeds executed in 1953 and 1965 referring to them as such, as well as Ora's ]966 application for retirement benefits on which he stated that Loretta had been his wife since August 8, 1936.

Loretta subsequently identified Dora S~ as Ora's first wife. She claimed that Dora and Ora were divorced in 1932 in Fort Wayne, Indiana. A search of the Fort Wayne, Indiana court records revealed that Dora filed for divorce from Ora in 1932 but that the case was dismissed in 1934 after Dora failed to pursue the matter. According to Loretta, Dora's whereabouts after 1932 are unknown. She thought Dora may have traveled with a circus. 1_/ It appears that Loretta thought that Ora and Dora were divorced when she began living with him in 1936.

As more fully explained in our May 28, 1980 memorandum in D~ (RA V (Goeser) to ARC, Programs) 2_/ the requirements of a common-law marriage in Michigan are first, an agreement by the parties at the time of the "marriage" to take each other as husband and wife and second, their subsequent living together and professing themselves to be husband and wife. We believe that Loretta has met her initial burden of proving these elements of a common-law marriage through the statements she made to SSA concerning her relationship to Ora, the warranty deeds showing them to be husband and wife, and Ora's application for retirement benefits naming Loretta as his wife.

The question then becomes whether the presumption of validity which, under Michigan law, attaches to Loretta's subsequent common-law marriage to Ora has been rebutted by evidence showing that his prior marriage to Dora was not terminated. We think that the presumption favoring the subsequent marriage has not been rebutted. Here, as in D~ , there is no evidence concerning the whereabouts and activity of, or contacts with, the prior spouse over a period of many years. Significantly, Dora's whereabouts and activity after she filed for divorce in 1932 are unknown. The fact that Dora abandoned her divorce action is not conclusive evidence that no divorce was ever granted, particularly since Dora apparently traveled with a circus. During the four years between 1932 and 1936, when Ora and Loretta began their common-law relationship, it is quite possible that Dora either obtained a divorce elsewhere or died. Also highly significant is the fact that Ora and Loretta lived together continuously as husband and wife for 45 years until his death in 1981. Finally, one child was born to them during their marriage.

For these reasons, we conclude that under Michigan law the presumption of validity of the subsequent, common-law marriage between Ora and Loretta beginning in 1936 was raised and was not rebutted. Loretta is therefore the legal widow of Ora J. S~ for the purpose of entitling her to Social Security benefits.

1_/ It appears that all reasonable efforts to trace Dora have been made. A search of SSA's records revealed no information on Dora S~ . In our view it is extremely doubtful that either Loretta's daughter or Ora's older sister (who would now be in her 90's), would have information about Dora. Loretta herself has no other living relatives. '

2_/ A copy of the D~ memorandum is in the claims folder, and we have attached another copy of D~ to this memorandum for your convenience.

The presumption of the continuation of a prior marriage will prevail when there is adequate evidence to rebut the presumption of validity of subsequent marriages. (W~, Orville J. ~— ~ — RAV [Weinstein] to ARC, Progs. 11/09/88)

You have asked for our opinion as to whether under the laws of Michigan that Marguerite W~ U~ (Marguerite) is the legal spouse of Orville J. W~ (Orville). Assuming that Orville lived in Michigan, Philadelphia, or Schuylkill County, Pennsylvania from 1944 to 1947, we conclude that the presumption of the validity of his second ceremonial marriage to Agnes B~ S~ (Agnes) and the presumption of the validity of his third common-law marriage to Shirley C. W~ (Shirley) have both rebutted and that Marguerite is the legal widow of Orville, a/k/a John O. W~ (John).

The claims folder does not appear to contain information concerning Oliver's whereabouts from 1944, when he and Marguerite separated, until November 1947, when he married Agnes in Elkton, Maryland. We recommend that before making a final determination you attempt to learn where Orville lived during those years. If his whereabouts were unknown, the presumption in favor of the continuation of his marriage to Marguerite would be weakened considerably, for in that case Orville may well have divorced her in some jurisdiction other than Philadelphia, Schuylkill County, Pennsylvania, or the State of Michigan. Moreover, if it were affirmatively shown that Orville lived in another State (Maryland for instance) during the years in question, the divorce records of that State should be checked. Perhaps Agnes and Marguerite can shed some light on Orville's whereabouts from 1944 to 1947. If that fails, perhaps SSA could determine for whom Orville worked in 1944 and 1945, during which years earnings were posted to his account. l/ Knowing the identity of these employers would help to identify where Orville was living during the years in question.

The relevant facts are as follows. Orville entered into a ceremonial marriage with Marguerite on July 31, 1936 in Schuylkill County, Pennsylvania. They lived together until 1944, when Marguerite says she left him. It is Robert U~ and remained with him until his death in 1967. She and Robert were never married. Marguerite last saw Orville in 1953 under unknown circumstances. She has consistently maintained that she and Orville were never divorced. No record of any divorce between them was found in Philadelphia for the years 1936 through 1953. Similarly, it appears from the claims folder that no record of divorce was found in Schuylkill County, Pennsylvania for the years 1937 to 1958. Nor was a record of a Michigan divorce found for all years subsequent to 1936.

On November 10, 1947, Orville entered into a ceremonial marriage with Agnes in Elkton, Maryland. They apparently lived together until 1950 or 1953. It is unclear whether any children were born to Agnes and Orville; at one point she claimed that her request for child support was denied because during proceedings in family court it was held that Orville was still married to Marguerite, while on another occasion she indicated that it was Marguerite who had taken Orville to family court to obtain child support for their children. Agnes began living with Walter S~ in 1967. She and Walter never married. When she filed for SSI benefits in August 1984, Agnes stated that. she believed Orville was not divorced when she married him. In July 1986 she filed for wife's benefits on Walter's account, alleging that she thought Orville was divorced until the family court proceedings during which it was revealed he remained legally married to Marguerite. Her claim on Walter's account was denied, and a month or so later Agnes filed for benefits on Orville's account, alleging this time that Marguerite and Orville had been divorced. SSA denied her claim on Orville's account, and her appeal of that denial is apparently pending.

Sometime prior to 1953 Orville moved to Michigan and assumed the name John O. W~ . He apparently met Shirley in Michigan and the two began living together as man and wife in 1953. 2/ Three children were born to them from 1954 to 1957. Shirley believed that John was divorced when she met him, but she has no proof of this. Shirley and John lived together until his death on March 3, 1986. SSA awarded widow's benefits to Shirley based on her common-law marriage to John.

Orville filed for RSI benefits in 1979 on his account number, claiming he was divorced from Marguerite in 1950. He did not fill in the space on on the claim form reserved for the identity of the place where this marriage ended in divorce. He stated on the form that Marguerite had remarried years he was divorced from Marguerite in 1950. He did not fill in the space on on the claim form reserved for the identity of the place where this marriage ended in divorce. He stated on the form that Marguerite had remarried years ago. He did not mention Agnes. In 1980, John filed for RSI benefits on his account number. 3/ He identified Shirley as his wife and stated that he had never been married before. 4/

Michigan law governing presumptions attaching to the validity of ceremonial and common-law marriages was extensively analyzed in a Memorandum from our office concerning wage-earner James O. D~, dated May 28, 1980 (RA V (Goeser) to Ass't. Regional Comm. - Programs)'(copy attached). We have reviewed this memorandum, as well as the cases discussed therein. Based on our review and updated research, we conclude that these cases remain good law and that the prior memorandum's summary of principles in the Michigan law relating to the presumptions attaching to ceremonial and common-law marriages remains accurate. These principles are as follows:

1. The law presumes the validity or legality of a marriage and this is one of the strongest presumptions in the law.

2. The law also presumes that a valid or legal marriage continues in force while the two parties to it live and have not been formally divorced.

3. Both of these presumptions may be rebutted by adequate evidence to persuade the tribunal that they are without foundation in fact.

4. Both of these presumptions apply to a common-law marriage (entered into prior to January, 1957), as well as to a ceremonial marriage, although they may have greater weight if. they concern a ceremonial marriage.

5. Where the validity of the subsequent marriage as against the prior marriage must be decided based only on the two presumptions and in the absence of adequate evidence to rebut either presumption, the presumption of legality of the subsequent marriage will prevail over the presumption of continuation of the prior marriage.

On the facts as they are now presented to us in the claims folder, there is adequate evidence to rebut the validity of Agnes' subsequent ceremonial marriage to Orville as against his prior ceremonial marriage to Marguerite. If, as we assume, Orville resided in Michigan, Philadelphia or Schuylkill County, Pennsylvania from 1936 until he married Agnes in November 1947, a search of the divorce records for those jurisdictions has yielded no evidence of a divorce between Orville and Marguerite. Further, Marguerite has continually maintained that she and Orville were never divorced. Agnes herself twice told SSA in applying for benefits that after she married Orville in 1947, she learned that he was not divorced as she had once believed; it was only later, when she filed for benefits on Orville's account that she claimed he was divorced from Marguerite. Moreover, neither Orville nor John ever told SSA he was married to Agnes. Finally, while Orville told SSA he had been divorced from Marguerite in 1950, he did not identify where the divorce was granted. We conclude on these facts that the presumption of validity of Orville's second ceremonial marriage to Agnes has been rebutted, and that Marguerite's 1936 ceremonial marriage to Orville prevails as valid over Agnes' 1947 ceremonial marriage to him. 5/

We also conclude on the facts available to us that there is adequate evidence to rebut the validity of Shirley's subsequent common-law marriage to "John" as against his prior ceremonial marriage to Marguerite. As stated above, we find the evidence supporting continuation of Marguerite's and Orville's ceremonial marriage very convincing. While Shirley has consistently maintained that she believed John was divorced, she has no proof of where or when any such divorce was granted. Further, the strength of the presumption, in the case of Shirley is weakened by the fact that her marriage is common-law, while Marguerite's was ceremonial. See, In Re Estate of Adams, 362 Mich. 624, 107 N.W.2d 764, 766 (Mich. 1961) and Moots v. Secretary of U.S. Dept. of Health, Education and Welfare, 347 F.2d '518, 520 (6th Cir. 1965).

We are nevertheless troubled by one aspect of Shirley and John's relationship. The two lived together for 33 years and had three children. This case is thus very similar to D~ (the attached decision), in which the subsequent common-law marriage lasted 32 years and produced three children. In D~ we concluded that the presumption of validity of the second marriage should be sustained, in part based on the notion that public policy favors sustaining long marriages from which children are born. See, footnote 5, supra. While we do not wish to imply that those public policy concerns are unimportant here, we nonetheless believe that this case presents other compelling evidence not present in D~ that directs a different result. Note that Mrs. D~ did not know the first husband had divorced her before she married Mr. D~ could not be discounted. Here, on the other hand, both Marguerite's and Orville's whereabouts from 1944 to 1953 are known (as stated above, we presume Orville lived in Pennsylvania during those years), and no record of divorce could be found in either Pennsylvania or Michigan, where Orville undertook a new identity. Further, both Marguerite and Agnes have repeatedly stated that Marguerite and Orville were never divorced. For these reasons, we believe that a Michigan court would not sustain the presumption favoring the validity of Orville's subsequent common-law marriage to Shirley.

l/ After 1945, no earnings are posted for Orville until 1951.

2/ Shirley claims that they were ceremonially married in Indiana on January 17, 1953. No marriage certificate could be found, however, and SSA determined that the secondary proof (a statement from Shirley's sister who witnessed this alleged ceremony) was insufficient to establish that a ceremonial marriage took place, particularly in view of John's own statement to SSA a few years earlier that he and Shirley had a common-law relationship. Accordingly, SSA determined that Shirley and John had a common-law marriage beginning in 1953. We assume that the determination regarding Shirley and John is correct, but we disagree with SSA's concurrent decision that the evidence establishes that Marguerite and Orville were divorced.

3/ SSA determined that Orville and John were one and the same and accordingly combined the earnings on both account numbers.

4/ Note that John stated his marriage to Shirley was common-law, not ceremonial as she has alleged. See, note 2, supra.

5/ If further development reveals that Marguerite and Orville had children as a result of their marriage, the presumption of the validity of their marriage would be strengthened. As discussed in the attached memorandum at 2, the judicially created presumption favoring the ceremonial marriage rests in part on "the public policy to protect offspring from the taint of illegitimacy."