Common Law Marriages

[free_spirit_etc]

I know someone brought up the topic once in regard to common law marriages --- and if they would be considered if the state they lived in didn't acknowledge common law.

I am posting this because I will probably NEVER find it again.... But it says that the VA CAN regognize common law marriages -- even if the state the person lived in didn't IF the person was NOT aware that the state did not recognize common law marriages. Interesting...

M21-1, Part IV July 1, 2004

Change 201

CHAPTER 12. MARITAL AND CHILD RELATIONSHIPS

CONTENTS

(2) Surviving spouse claimants

(a) In VAOPGCPREC 58-91 the General Counsel held that lack of residence in a jurisdiction recognizing common law marriages is not a bar to establishment of a common law marriage for a surviving spouse claimant. The rationale is that the common law marriage could be "deemed valid" under 38 CFR 3.52 on the theory that the surviving spouse could have entered into the purported common law marriage without knowledge of the fact that there was an impediment to the marriage. The impediment, of course, would be the jurisdiction's nonrecognition of common law marriages.

( If a surviving spouse claimant alleges a common law marriage in a jurisdiction that does not recognize common law marriages, proceed with normal common law marriage development (part III, paragraph 6.08c) and, in addition, secure the surviving spouse's statement as to whether he or she was aware that common law marriages were not recognized in the jurisdiction and the reasons for this understanding.

© Based on the statement submitted by the claimant and any other evidence of record, the Veterans Service Representative (VSR) must determine, as a question of fact, whether the claimant was without knowledge of the impediment to the marriage. VAOPGCPREC 58-91 and Court of Appeals for Veterans Claims (CAVC) decisions such as Colon v. Brown, No. 94-71, do not limit VA's ability to conduct the full inquiry required by 38 U.S.C. 103(a) nor does it invalidate the Department's responsibility to weigh the evidence submitted both as to its probative value and credibility. If it is determined that the claimant was without knowledge of the impediment to the marriage, the other requirements of a deemed valid marriage are satisfied (paragraph 12.10), and all the elements of a common law marriage are present (subparagraph b above), a common law marriage can be established. Decisions which are adverse to the claimant must clearly articulate the evidence considered, the comparative weight assigned to each, and an evaluation of the credibility of the evidence and the reason we assigned that evaluation. Avoid unsubstantiated speculative statements such as "the claimant must have known."