20 CFR 404.708, 404.1101 and 404.1104

SSR 77-32

The claimant and the deceased wage earner were ceremonially married in 1953 and were divorced in 1958. Both before 1953 and after 1958 they lived together for various periods. During the period between 1965 and 1971, their living together in Ohio was found to constitute a valid common law marriage. From 1971 until his death in 1975, the wage earner did not live with the claimant. Held, a common law marriage continues until terminated by death or divorce, and the claimant is the legal widow of the wage earner.

The issue is whether after their divorce in April, 1958, the claimant and wage earner entered into a common law marriage and whether the claimant qualifies as the widow of the wage earner based upon such common law marriage although they were not living together at the time of the wage earner's death.

The claimant began living with the wage earner in 1939 in Tennessee, and continued living with him there until they moved to Ohio in 1941 where she lived with him until 1958. They were ceremonially married in October 1953 and were divorced in Ohio in April 1958. Claimant resumed living with the wage earner from August 1964 to June 1965 in Illinois, and from June 1965 to May 1971 in Ohio again. From 1965 to 1969 claimant and wage earner executed joint tax returns, charge accounts, and joint loan accounts. After 1971, wage earner did not live with claimant, but apparently resided elsewhere.

The first years of "living together" in Tennessee from July 1939 to January 1941 did not constitute a common law marriage since such status is not recognized in that state (Crawford vs. Crawford, 277 S.W. 2d 389 (Tenn. 1955) Andrew vs. Signal Auto Parts, Inc. 492 SW 2d 222 (Tenn. 1973)). As to their "living together" in Ohio from 1941 to October 16, 1953, the law of that state requires of a common law marriage that there be clear and convincing evidence of an agreement "per verba de praesenti" to be husband and wife, subsequent cohabitation and a holding out to the community of marital status. In re Estate of Hammonds, 315 N.E. 2d 843 (Ohio 1973). The evidence to sustain a common law marriage from 1941 to October 1953 simply does not meet that level and establishes at most a mere living together without a present intent to marry.

In October 1953, however, claimant and the wage earner were married, holding themselves out to all in a public ceremony that they were man and wife. This marriage ended in April 1958, when they were legally divorced. Claimant did not live with the wage earner from the date of divorce until August 1964; in fact, during that period, the wage earner was living with another woman far removed from claimant.

From August 1964 until May 1971 claimant and wage earner resumed living together, residing together in Ohio from June 1965 to May 1971. In that period, they held themselves out as husband and wife, cohabited, and based upon all the evidence during that period they satisfied the requirements of a common law marriage under the law of Ohio. From 1971 until the wage earner's death on March 24, 1975, they were not living together. However, with the finding of a common law marriage between 1965 and 1971 under the law of Ohio, the question arises as to whether such relationship was terminated. Was it terminated by the mere fact of separation, or was either divorce or death required for finality?

Ohio law provides that a common law marriage is not ended by mere separation; such relationship is terminated solely by death or divorce (Brawley vs. Thomas, 81 NE 2d 719 (Ohio, 1947), Dibble vs. Dibble et al,100 NE 2d 451 (Ohio, 1950)).

Therefore, it is held that after claimant's ceremonial marriage with wage earner was terminated by divorce on April 26, 1958, beginning in June 1965, claimant and wage earner lived in common law status in Ohio since they held themselves out as husband and wife, considered themselves as married, and cohabited until May 1971. While no longer living together after May 1971, their common law marital status continued, absent divorce, until the wage earner's death. Accordingly, as the legal widow of the wage earner, she is entitled to widow's insurance benefits.

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