My aunt and her husband lived together in a state not named Montana for over 40 years, having never traditionally tied the knot. They both loved each other very much, and my aunt still loves my uncle even though he passed away earlier this year. They weren't able to receive each others' state benefits, or jointly file taxes, nor was my aunt able to legally care for him when he got sick since their union was never recognized by the state.

Luckily for Montanans who want one, the state does recognize common law unions. MCA 40-1-403 defines the state's official position:

Common-law marriages are not invalidated by this chapter. Declarations of marriage pursuant to 40-1-311 through 40-1-31340-1-323, and 40-1-324 are not invalidated by this chapter.

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In short, to officially get married in Montana, 40-1-301 states that you have to "solemnize" your wedding. This is done by having it attested to as legal by a judge, notary public, or even by the mayor. This is the route traditional marriages take, and if two people want to have a common-law marriage it isn't invalidated because they don't want to go through the bother of an official marriage license.

Why Bother With A Common Law Marriage? "Full Faith & Credit"

It's been around in the United States for longer than legal marriages have. The practice was brought over from England and was mostly used by settlers who didn't have access to a priest or a judge in the early years of states and counties. It's actually one of the few parts of European culture we liked enough to keep.

Credit: Canva
Credit: Canva

Article 4, Section 1 of the U.S. Constitution, more commonly known as the "Full Faith and Credit Clause" says that every state has to legally recognize the acts of every other state. Thanks to Article 4, if you get married in Montana your marriage MUST BE recognized by every other state whether it's common law or not. So if a common law couple decides to move to another state that doesn't recognize common law marriages (like Idaho) they won't be "unmarried."

How Do I Do It?

In order for your partnership to be recognized by the state of Montana as a common law marriage, both parties have to submit THIS AFFADAVIT to your county clerk's office. In a nutshell, it tells the state that:

  • You are both claiming to be husband and wife and live together.
  • You are both consenting adults (or if under 16, have your parents/guardians consent.)
  • You are not married to anyone else.

No matter your reason(s) to want a common law marriage, it will be recognized by the State of Montana and hence by every other state should you decide to move. Hey, why would you want to leave Montana?

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