Kara Sears
Common-law marriage in Montana is recognised under MCA § 40-1-403 as a marriage formed without a license. To be considered valid, the party seeking to establish a common-law marriage must prove four conditions: the parties were competent to enter into a marriage; there was an assumption of a marital relationship by mutual consent and agreement; they confirmed their marriage by cohabitation and public repute; and they acquired the reputation, character, and status of marriage in public. If two individuals in a common-law marriage wish to end their relationship, they are treated the same as a legally married couple and must go through a legal dissolution of marriage.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Yes, Montana is one of nine states that allow common-law marriages |
| Definition of common-law marriage | A marriage formed without a license and solemnization by a minister, priest, judge, or public official |
| Requirements for common-law marriage | Parties must be competent to enter a marriage, assume a marital relationship by mutual consent and agreement, and confirm their marriage by cohabitation and public repute |
| Proof of common-law marriage | May include testimony from individuals in the community who knew the couple |
| Dissolution of common-law marriage | Treated the same as a legally married couple; requires a legal dissolution of marriage |
| Children in common-law marriage | Considered legitimate children of the marriage with the same rights upon separation or dissolution |
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What You'll Learn
Common law marriage and estate planning
The State of Montana recognizes both formal marriages that comply with marriage statutes and common-law marriages. Common-law marriages are formed without a license or solemnization by an official. Common-law marriages are not the norm and are often misunderstood, which can lead to confusion about the couple's marital status. This confusion can have serious consequences in a health crisis or after a death, as a common-law spouse may not be able to make critical healthcare or financial decisions for their partner and may have to fight to receive their partner's property.
To prevent this confusion and difficulty, couples in a common-law marriage can lay out their wishes in an estate plan. This plan can clarify their healthcare wishes, who should make decisions on their behalf, and what should happen to their property. This ensures that the person making important decisions about them is the one they trust the most.
In Montana, two people cannot create an unintended common-law marriage. The three elements required to prove a common-law marriage in Montana are:
- The parties were competent to enter into a marriage
- There was mutual consent to the marriage
- The parties confirmed their marriage by cohabitation and public repute
Even with these requirements, there may be confrontations between the "surviving spouse" of a perceived common-law marriage and the deceased person's other heirs. An estate plan can help prevent these conflicts and the court costs and attorney fees associated with a court case to determine the existence of a common-law marriage.
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Proving a common-law marriage
The state of Montana recognizes both formal marriages that comply with marriage statutes and common-law marriages that do not. To prove a common-law marriage, the party asserting its existence must prove the following three elements to the district court:
Competency
The competency requirements for a common-law marriage are the same as those in a traditional marriage. The parties must be competent to enter into a marriage, which means they cannot be related, already married to someone else, or lack the mental capacity to enter into a marital relationship.
Mutual Consent and Agreement
Mutual consent and agreement mean that the two people form the present intent to be married and express it to one another. The agreement may occur privately without anyone else present or it could be witnessed by many. The mutual consent of the parties does not need to be expressed in any particular form and can be implied from their conduct.
Cohabitation and Public Repute
The parties must confirm their marriage by cohabitation and public repute. This means that they must present themselves as husband and wife openly, acting as a "married couple" and expressing their marital status to the community at large. The court will consider a number of actions to determine whether a couple has held themselves out as married, including exchanging rings, taking the partner's last name, and filing joint tax returns. It is important to note that simply living together is not sufficient proof of a common-law marriage, and there is no specific length of time that creates such a marriage in Montana.
In summary, proving a common-law marriage in Montana requires demonstrating competency to marry, mutual consent and agreement between the parties, and confirmation of the marriage through cohabitation and public repute. The court will consider all the facts presented and the various competing public policies of the state when making its determination.
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Common-law marriage and divorce
Montana is one of nine states that recognize common-law marriages. A common-law marriage is formed without a license or solemnization by an official. The Montana Supreme Court has established three elements for creating a common-law marriage:
- The parties were competent to enter into a marriage.
- The parties assumed a marital relationship by mutual consent and agreement.
- The parties confirmed their marriage by cohabitation and public repute.
The first element requires that the parties meet the same competency requirements as a traditional marriage. They must be at least 18 years old, not related, and have the mental capacity to enter a marital relationship.
The second element, mutual consent and agreement, means that the two people form the present intent to be married and express it to one another. This can be done privately or publicly, and the agreement can be implied from the conduct of the parties.
The third element, cohabitation and public repute, is typically the main focus of common-law marriage cases in Montana. The court will consider cohabitation, but it is not the determining factor. The couple must present themselves as husband and wife openly and act as a "married couple" rather than a pair.
If a common-law marriage ends, the law treats the couple the same as a legally married couple seeking a divorce. A legal Dissolution of Marriage is required to terminate the relationship, and the couple's rights and duties regarding any children and property must be determined.
It is important to note that proving a common-law marriage can be difficult, especially if one spouse is not available to testify to the existence of the marriage, as may be the case when dealing with inheritance disputes. An estate plan can help prevent conflicts and avoid costly court fees in these situations.
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Common-law marriage and children
In Montana, a common-law marriage is a marriage formed without a license and solemnization by a minister, a priest, a judge of a court, or a public official. The state of Montana recognizes both formal marriages that comply with marriage statutes and common-law marriages that meet the requirements set out in case law.
When it comes to common-law marriage and children, there are a few things to consider. Firstly, in the case of a separation or dissolution of a common-law marriage, the rights and duties of the parents towards their children must be established in a Parenting Plan. This plan outlines decision-making responsibilities and provides for the financial care of the children.
Additionally, in the event of the death of one spouse in a common-law marriage, the surviving spouse has the same rights of inheritance as any other spouse, including inheriting property and assets. However, the amount inherited by the surviving spouse may vary depending on the existence of other heirs, such as children, grandchildren, parents, or siblings.
In the case of John and Mary, an unmarried couple who lived together for 15 years before John's death, Mary filed in district court as a surviving spouse, claiming a common-law marriage. If successful, Mary would inherit a significant portion of John's estate, while John's children from a previous marriage would also receive a share.
To avoid confrontations between the surviving spouse of a perceived common-law marriage and the deceased's other heirs, it is advisable to have an estate plan in place. This can help prevent conflicts and reduce court costs and attorney fees associated with determining the existence of a common-law marriage.
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Common-law marriage and inheritance
In Montana, common-law marriages are recognised as legally valid. This means that, in the event of a spouse's death, the surviving spouse of a common-law marriage has the same rights of inheritance as any other surviving beneficiary.
However, the amount inherited by the surviving spouse depends on whether the deceased has surviving parents or lineal descendants (children, grandchildren, or great-grandchildren). For example, in the case of John and Mary, an unmarried couple who lived together for 15 years before John's death, Mary filed in district court as a surviving spouse because she believed she and John had a common-law marriage. If Mary "won", she would have inherited $1,075,000, while John's children from his previous marriage would have inherited $925,000.
To establish a common-law marriage in Montana, the following requirements must be met:
- The parties must be competent to enter into a marriage.
- The parties must enter into the marital arrangement by mutual consent and agreement, which can occur privately or be witnessed.
- The parties must confirm their marriage by cohabitation and public repute.
It is important to note that simply living together does not establish a common-law marriage, and keeping different last names or separate finances does not disprove a common-law marriage. Additionally, a common-law marriage cannot be kept secret from the community.
Dissolving a common-law marriage in Montana follows the same process as a licensed marriage. A person can ask the court to end their marriage simply because they no longer want to be married, without needing a specific reason. This is known as a no-fault dissolution. Alternatively, a party may request a legal separation instead of a dissolution of the marriage.
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