If you're involved in a committed, serious relationship, you might have wondered whether you can form a common law marriage instead of going through the expense and planning required for an elaborate wedding ceremony?
Common law marriage is a special kind of legal marriage that two partners can form without a solemnization (meaning, a wedding ceremony) and without obtaining a marriage license. Montana is among the minority of states that allow common law marriage.
You have to satisfy the following legal requirements before you're deemed to have a common law marriage in Montana.
Both spouses were competent to marry. This means that both people were old enough to marry, that neither is already married, that they aren't closely related to each other, and that neither of them was suffering from a serious mental illness or under the influence of an intoxicating substance (drugs or alcohol) that impaired their ability to enter into a contract.
Both spouses must agree that they're married. This means that each person affirmatively consents to take the other person as a spouse, despite the fact that there wasn't a wedding ceremony or marriage license. Each spouse has to express or vocalize an intent to be married to the other.
Both spouses must confirm that they're married by "cohabitation and public repute." "Cohabitation" means that the spouses have to live together, although it doesn't necessarily matter how long. "Public repute" means that the spouses have make it clear to the rest of the world that they're married to each other. For this element to be met, other people must look at the relationship and conclude that the couple is married.
Each of these three elements requires an affirmative action. It's not possible to "accidentally" become a common law spouse just because you've been in a relationship for a long time.
You might think you're already in a common law marriage if you and your partner live together, have a child together, or both. However, just because you live together or have kids together doesn't mean you have a common law marriage. To have a true common law marriage in Montana, you still have to prove all of the three elements described above.
Relationships that are kept secret from the community aren't common law marriage. To have a common law marriage, you have to communicate it to other people, who in turn recognize you and your partner as spouses. If you and your partner merely aspire to marriage (for example, saying, "I hope we get married someday") or if only one of you believes that you're married, then you do not have a common law marriage. You both have to agree that you're married.
Another important impediment to marriage is a previously existing marriage. You might form a relationship with someone who's married and separated. But you can only form a common law marriage with someone who's single, meaning that neither you nor your partner can still be legally married to someone else.
Finally, common law marriage is reserved for couples in serious, romantic relationships—friends or companions that live together will not be considered common law spouses.
Every case is different and depends on unique facts and circumstances, but if a judge has to decide whether you're in a valid common law marriage, there's some behavior you can point to that will help prove you're married, including:
A common law marriage is a real marriage. If you're in a common law marriage and you want to end it, you will have to go through a regular, formal divorce, where you'll divide your assets and debts and determine if one spouse is entitled to alimony.
Any children born to you and your spouse while you're in a common law marriage are considered to be children of the marriage. If you have a valid common law marriage, you shouldn't have to go to court to ask a judge to determine paternity (the identity of the father), because you're already married. But if you're just in a serious relationship, and not a common law marriage, you'll have to ask a court to determine paternity in order to issue orders regarding custody and child support.
One way to make your common law marriage "official" is by completing an Affidavit of Common Law Marriage.
Some states do not recognize common law marriage, so if you're planning to move away from Montana, or if you have any other questions about your situation, please contact an experienced family law attorney for advice.