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July 22, 1988

JULIA C. JACKSON, Plaintiff,
OTIS R. BOWEN, Secretary of Health and Human Services, Defendant

The opinion of the court was delivered by: PENN


 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to appeal the decision of an Administrative Law Judge (ALJ) of the Social Security Administration which denied her application for widow's insurance benefits. She had applied for the benefits under 42 U.S.C. § 402(e) as the common-law wife of Ernest B. Jackson. *fn1" The case is now before the Court on plaintiff's motion for summary judgment, and on defendant's motion for summary affirmance. After carefully considering the motions, the opposition to them, and the administrative record, *fn2" the Court concludes that plaintiff's motion should be granted, and that the ALJ's decision should be reversed.


 In determining whether a common-law marriage existed, an ALJ is to apply the laws of the state where the insured had a permanent home when he or she died. 20 C.F.R. § 404.345 (1987). There is no question here that District of Columbia law applies, or that the District of Columbia recognizes common-law marriages. To establish a common-law marriage in the District of Columbia there must be an express mutual present intent to be husband and wife, followed by good faith cohabitation. Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977). The party seeking to establish such a relationship must do so by clear and convincing evidence. Id.

 A common-law marriage requires more than mere cohabitation and adoption of the "husband's" surname. McCoy v. District of Columbia, 256 A.2d 908, 910 (D.C. 1969). Mutual consent to be married is essential, and a couple's expressions to each other that they are husband and wife can constitute such an agreement. See National Union Fire Insurance Co. v. Britton, 187 F. Supp. 359, 363-4 (D.D.C. 1960). Evidence of a couple's general reputation in the community as being married or unmarried is also important. See Troshinsky v. Rosin, 428 A.2d 847, 849 (D.C. 1981). The existence of an agreement to be married may be inferred from the character and duration of cohabitation, or from other circumstantial evidence such as testimony by relatives and acquaintances as to the general reputation regarding the parties' relationship. Marcus v. Director, Office of Workers' Compensation Programs, 179 U.S. App. D.C. 89, 548 F.2d 1044, 1048 n.9 (1976). An inference of common-law marriage may be rebutted by direct evidence that there was no present agreement. Id. If at least one of the parties to the alleged marriage is available as a witness, cohabitation and reputation are insufficient to create an inference of common-law marriage in the absence of the party's assertion of consent or agreement. United States Fidelity & Guaranty Co. v. Britton, 106 U.S. App. D.C. 58, 269 F.2d 249, 252 (1959).

 Under the regulations of the Department of Health and Human Services, preferred evidence of common-law marriage includes the signed statements of a surviving "spouse" and those of two blood relatives of the deceased "spouse". 20 C.F.R. § 404.726(b)(2) (1987).

 In this case, after hearing plaintiff's testimony and reviewing other evidence, the ALJ concluded that "despite their prolonged cohabitation, the wage earner and claimant never entered into a present mutual agreement to become husband and wife, and without such agreement their cohabitation cannot rise to the status of a common-law marriage under the laws of the District of Columbia." (R. 10).


 Plaintiff also submitted the sworn affidavits of Mr. Jackson's relatives. Elizabeth Brantley, his aunt, Virginia Craig, his sister, and Parniece Jackson-Knox, his daughter, all stated that plaintiff and Mr. Jackson considered and referred to each other as husband and wife, and that they were held out and known as such to their families, friends, and neighbors. *fn3" (R. 91, 93, 95.) The record also reflects that Ollie Hicks, Mr. Jackson's sister-in-law, sent a card to plaintiff addressed to "Mrs. Julia Jackson". (R. 27, 28, 90.)

 Additionally, plaintiff submitted copies of tax returns which indicate that the couple filed at least two returns under the status of "married filing joint return" (1977 federal and 1977 District of Columbia), and that plaintiff filed at least one return under the status of "married filing separate return" (1978 federal). (R. 74, 76, 78.) Plaintiff was also issued a social security card in the name of "Julia H. Jackson". (R. 80.)


 In concluding that the plaintiff's and Mr. Jackson's eleven year relationship was merely "meretricious" cohabitation, the ALJ found several items of evidence to be persuasive.

 First, the ALJ pointed to plaintiff's responses to questions 6A and 6B on the "Statement of Marital Relationship" filed by plaintiff on March 31, 1986 in support of her application for benefits. (R. 9, 10, 52.) In response to the question, "DID YOU HAVE AN UNDERSTANDING AS TO YOUR RELATIONSHIP WHEN YOU BEGAN LIVING TOGETHER?" plaintiff checked the box marked "YES". (R. 52.) In response to the follow-up question, "what did you say to each other about living together?" plaintiff stated that "we had planned to get married, however I was not ready at the time. I wasn't ...

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