There is a lot of misconception regarding common law marriage. Many believe that if a couple lives together for a certain period of time they will simply “wake up common law married one day.” Luckily for thousands of couples sharing a residence, it takes more than a few months under the same roof to create a common law marriage in Montana.
Under Montana law, it is presumed that a man and woman deporting themselves as husband and wife have entered into a “lawful contract of marriage.” This means that if you hold yourself out as being married, the law presumes that you are, in fact, married.
In order to show you and your partner “held yourselves out as married,” you must prove the following:
(1) You and your partner were competent to enter into the marriage;
(2) There was an assumption of a marital relationship by mutual consent and agreement;
(3) Cohabitation occurred; and
(4) You and your partner acquired the reputation, character and status of marriage in public (i.e. others think you are married).
Some common facts seen in common law marriage cases are things like filing taxes as a married couple; exchanging rings; calling each other “husband” and “wife;” introducing one another as a spouse; checking the married box on forms for insurance, etc.; and, for a woman, going by the man’s last name.
I am often asked why someone would deny they were common law married or why someone would claim they were common law married even if they were not.
Generally, you see disputes about the validity of common law marriage in two kinds of cases. First, common law marriage is often disputed in divorce cases. Because there is no such thing as common law divorce, if a couple is common law married, they must go through the official dissolution process to have their marriage dissolved. Sometimes a party to a disputed common law marriage would be entitled to a significant amount of assets if they were common law married. Or a person may deny a common law marriage in an attempt to protect their finances.
Another common area of law where common law marriage is seen is probate/estate cases. If a couple is common law married and a spouse dies, the remaining spouse may be entitled to a more significant portion of the estate if the couple was married versus if they were simply in a cohabitating/dating relationship.
If you believe you may be common law married and you and your spouse are separating. It is important that you see an attorney to assist you in protecting your rights during a divorce proceeding.