Winifred E. Barron v. Kenneth S. Apfel, Commissioner of Social Security

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4058
Winifred E. Barron,
Plaintiff-Appellant,
v.
Kenneth S. Apfel, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-4179--James L. Foreman, Judge.
Submitted March 22, 2000--Decided April 17, 2000
Before Posner, Chief Judge, and Diane P. Wood and
Evans, Circuit Judges.
Posner, Chief Judge. Winifred Barron applied for
disabled widow’s benefits as the widow of Paul
Raymond. 42 U.S.C. sec. 402(e). She was turned
down on the ground that she had not been
Raymond’s common law wife, and appeals to us from
the district court’s refusal to set aside the
denial of her application.
Barron, now age 64, has made a career of
marriage. We count seven, but the validity of
several, including the common law marriage with
Raymond, is critically in issue. She claims that
three days after she divorced her second husband,
she became Raymond’s common law wife under the
law of Michigan. That was at the end of 1956
(when she was only 20!), shortly before Michigan
abolished common law marriage (but it did not
abolish it retroactively). They separated in
1971, but the marriage was never dissolved. The
day before the separation, Barron married her
fourth husband. She divorced number four and
later number five, and was married to six at the
time of Raymond’s death in 1987. She divorced six
and married seven before applying for widow’s
benefits in 1995.
There are a number of reasons to doubt whether
she was ever married to Raymond: they did not
hold themselves out to the world as being

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married; common law marriage requires proof of
cohabitation, and it does not appear that she was
living with Raymond when they "married"; the
judgment of divorce from her second husband
(Raymond’s immediate predecessor) was not entered
until after she married Raymond; the licenses for
her subsequent marriages do not mention a
previous marriage to Raymond, while mentioning
her other previous marriages.
There is more, which is the occasion for our
writing an opinion in what is, after all, a
frivolous appeal. The statute grants widow’s (or
divorced spouse’s) benefits only to an individual
who "is not married," 42 U.S.C. sec.
402(e)(1)(A), with three exceptions: (1) the
individual remarried after reaching the age of
60; (2) she (or he, but we’ll confine our
attention to widows, since that is Barron’s
class) remarried in her fifties but is now at
least 60 and at the time of her remarriage was
entitled to disabled widow’s benefits; or (3) she
remarried in her fifties, is still in her
fifties, and was disabled at the time of her
remarriage. 42 U.S.C. sec. 402(e)(3); 20 C.F.R.
sec. 404.335(e). Although now in her sixties and
applying for disabled widow’s benefits, Barron
fits none of the exceptions. She married her
current husband when she was 52, which rules out
(1); she was not entitled to widow’s disability
benefits at the time of that marriage, which
rules out (2); and she was not disabled at that
time, which rules out (3). It might seem that (3)
would also be ruled out by the fact that she is
over 60, but we think it apparent that the
statute and regulation refer to the applicant’s
age at the time of the application--the applicant
does not forfeit her entitlement by passage of
time during what may be protracted administrative
and judicial proceedings to establish the
entitlement. And Barron applied five years ago.
But was she really "married" when she applied
for the benefits? That is a more complicated
question than might appear and one on which there
is no case law. One might think that since a
common law marriage is contracted without the
usual formalities, it can be dissolved without
the usual formalities. But that is incorrect.
Common law marriage is not a synonym for
cohabitation, "domestic partnership," or
contract. The purpose of common law marriage is
not to create a second-class sort of marriage,
but rather to repair unintended deficiencies in
the ceremony, documentation, or other formalities
of marriage, or in the legal capacity to wed (a
party might erroneously believe that he or she
had been validly divorced from a previous
spouse). See, e.g., 1 Homer H. Clark, Jr., The
Law of Domestic Relations in the United States

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sec. 2.4, p. 111 (2d ed. 1987). That is why it is
important that the parties hold themselves out as
being married--if they don’t think they’re
married, there is no formal defect to repair.
Common law marriage is thus to domestic
relations law what the doctrine of adverse
possession is to property law--a way of curing
formal defects in a legal status. And just as a
person who has acquired title by adverse
possession has as good a title as someone who
acquires it by a formal conveyance, so a common
law spouse has the same rights as any other
spouse. E.g., Adams v. Boan, 559 So. 2d 1084,
1087 (Ala. 1990); Lavery v. Hutchinson, 94 N.E.
6, 8-9 (Ill. 1911); Steves v. Smith, 107 S.W.
141, 143 (Tex. App. 1908). And so if Raymond and
Barron were married, their marriage was not
dissolved by "separation." Barron married three
times between their separation and Raymond’s
death, and if they had a valid common law
marriage, then all three marriages were bigamous
and therefore invalid and she would be his
unmarried widow. But death dissolves marriage,
and Barron’s current marriage was contracted
after Raymond’s death. She was therefore married
when she applied for widow’s benefits and, as we
have seen, she did not fall into any of the
exceptions to the ban on awarding benefits to
remarried claimants. For this reason as well as
because of the invalidity of the alleged common
law marriage, she was properly denied benefits.
Affirmed.

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