SSR 61-9. VALIDITY OF COMMON-LAW MARRIAGE WHERE PARTIES INTEND CEREMONIAL MARRIAGE IN FUTURE

Section 216(h)(1) of the Social Security Act provides that an applicant

is the wife of an insured individual for purposes of such Act if the

courts of the State in which such insured individual is domiciled at the

time the application for wife's insurance benefits is filed would find

that the applicant and such insured individual were validly married.

H and W were domiciled in Colorado when they applied for old-age and

wife's insurance benefits. H and W had been living together for several

years but had never been ceremonially married. W stated that when they

began living together, H had asked her to be his wife and she agreed. H

stated that they made such agreement because they were both alone and

wished to live together as husband and wife and that they intended to go

through a marriage ceremony at some future date but just never got around

to it. Neither H nor W had any legal impediment to contracting marriage

when they began living together, and they both believed that their

relationship could be terminated only by death or divorce. H and W held

themselves out to the community, friends, and relatives as husband and

wife and conducted themselves accordingly.

Colorado follows the majority view that marriage is a civil contract in

that it is a present agreement, per verba de praesenti (by words of

the present), to be husband and wife and to assume all the rights and

duties of the martial relationship, and that it is valid only when entered

into voluntarily by parties who have capacity to contract marriage.

An agreement to cohabit for the present and to marry later, however, is

not a marriage even if there is cohabitation. There can be no contract by

words of the present, where the marital status is to become fixed in the

future. This rule applies where a valid marriage cannot be entered into

until some future time, such as after the death of an existing spouse, 35

Am.Jr., Marriage , Section 41.

reement to cohabit for the present and to marry later, however, is

not a marriage even if there is cohabitation. There can be no contract by

words of the present, where the marital status is to become fixed in the

future. This rule applies where a valid marriage cannot be entered into

until some future time, such as after the death of an existing spouse, 35

Am.Jr., Marriage , Section 41.

H and W's statements as to their intent when they began living together

show that they agreed to be married at the time they began living together

although they contemplated that a marriage ceremony was to be performed

some time in the future. Held , under Colorado law, H and W entered

into a valid common-law marriage at the time they agreed to live together

presently as husband and wife. Therefore, W meets the requirements of

section 216(h)(1) of the Social Security Act for the purpose of

entitlement to wife's benefits.