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What counts as a common law marriage?

Not all marriages must involve a ceremony or even a marriage license. If two individuals meet a small number of requirements, they may marry each in common law marriage. Not all states recognize common law marriage, but Montana is one of the few that does, allowing those who reside here to enter into common law marriage with relative ease.

It is important to understand that a properly executed common law marriage may prove as legally binding as a traditional-style marriage involving proper documentation through the state. Common law marriage is absolutely something to take seriously, especially if it may complicate ownership of property or custody rights.

Defining common law marriage

A common law marriage is quite simple. It may exist any time that two individuals live together who both possess the ability to marry. Should they choose to marry each other and present themselves to their community as married, then they are legally married in the state of Montana.

Legal marrying capacity

In order for a person to marry someone, he or she must legally retain the right to do so. This requires that a person is

  • At least 18 years old
  • Not married to another person already
  • Legally of sound mind

While age and single status are fairly straightforward, determining legal soundness of mind is not always as simple. For instance, an elderly widow may suddenly inform her family that she has now married a young man who came by to mow her grass. While all of the other requirements are clearly met, the family may have concerns about the woman's soundness of mind.

Any person who meets these three standards may freely choose to marry another consenting person in common law marriage.

Establishing the marriage

Two individuals who live together and do choose to marry must still establish the marriage to other people in their community, such as their family and friends. This may include

  • Verbally confirming to others that they are married
  • Using the terms "wife" and "husband" when speaking about each other
  • Taking the same last name
  • Wearing wedding rings
  • Joint financial accounts

It is also necessary to live together for some length of time, but with all other requirements satisfied, even living together for a single day may suffice.

If you have any legal concerns that involve common law marriage, professional legal guidance can help you understand your rights and devise a personal strategy to protect your priorities

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