Common Law Marriage is recognized in the State of Montana
Common Law Marriage is recognized in the State of Montana. MCA 40-1-403. It is a marriage formed without a license and solemnization. The Montana Supreme Court has set out the elements for creating a valid common law marriage. First, the parties must be competent to enter into a marriage. Second, the parties entered into the marital arrangement by mutual consent and agreement. And finally third, the parties confirmed their marriage by cohabitation and public repute. In the Matter of the Estate of Ober. 62 P2d 1114, 314 Mont. 20, 2003 MT 7 (2003).
Competency is the same for a common law marriage as with any other form of marriage in the state - Of age, MCA 40-1-202, not already married, not between person related to a certain degree, not between persons of the same sex, MCA 40-1-401. Both parties had the mental capacity and neither was under the influence of an incapacitating substance, MCA 40-1-402. Mutual arrangement and agreement means that the two people form the present intent to be married and express it to one another. How it is expressed will vary from marriage to marriage. The agreement may occur privately without anyone else present or it may be witnessed by many. However, two people cannot just slide into an unintended common law marriage.
The cases in Montana have mainly been concerned with the final part of the test, cohabitation and public repute. There is no bright line in these cases. Cohabitation, living together, is one issue that the Court will look at, but it alone is not the determinative factor. There is no specific length of time. Keeping different last names is not proof positive one way or the other. Maintaining separate financial accounts or having joint accounts may not matter. A common law marriage will not be found where it was kept secret from the community. The parties must present themselves as husband and wife openly. The court looks at all the facts which are presented and at the various competing public policies of the State of Montana.
Two competent individuals could live together their whole adult lives and never form a common law marriage - if they never said to the community at large that they were husband and wife, never acted as if they were a “married couple” rather than a pair, and never said to each other “we are married”. A Common Law Marriage is a real marriage and requires a legal Dissolution of Marriage to terminate the relationship. Children of a common law marriage are legitimate children of the marriage, MCA 40-6-201. Upon a separation or dissolution, rights and duties of the parents of the children would have to be set out in a Parenting Plan. Upon death of one, the surviving common law spouse has the same rights of inheritance as any other spouse.
Only a fraction of the states in the county presently recognize common law marriages. A common law marriage entered into legally in the State of Montana will be recognized by any other state in the nation. http://www.ncsl.org/programs/cyf/commonlaw.htm . A common law marriage may cause difficulties when dealing with bureaucratic institutions such as Social Security and banks. The State of Montana has created another form of marriage which can be used to document a common law marriage. A couple who have joined in a common law marriage may subsequently make a Declaration of Marriage without Solemnization, MCA 40-1-311, which can then be filed with the Clerk of the District Court and would “serve as an official record of the marriage of the parties.” MCA 40-1-402. Such a Declaration does not make the parties’ prior common law marriage less valid; it just is proof positive which may make some transactions of adult life easier.