TN 3 (01-06)

PR 05605.037 North Dakota

A. PR 05-128 The validity of a common-law marriage in Montana NH-Darold S~, ~ (Your reference number: S2D8B52: DS)

DATE: April 5, 2005


North Dakota will recognize a common law marriage validly entered into in another jurisdiction. Under Montana law the court will look to the parties' intent in satisfying the elements of a common-law marriage. The evidence provided does not demonstrate sufficient cohabitation and repute in Montana to establish a valid common law marriage.



For purposes of determining eligibility for widow's benefits, you have requested an opinion on whether a couple domiciled in the State of North Dakota (which does not permit the establishment of common law marriages) entered into a valid common law marriage in the State of Montana where the number holder (Darold S~) worked at times over a 30-year period, and the claimant (Marlys S~) traveled to visit him. You also requested an opinion as to whether statements provided by Darold's co-workers are sufficient evidence to show that the couple resided in Montana.

Short Answer

North Dakota law does not permit the establishment of common law marriages in that State.

Although North Dakota will recognize a common law marriage validly entered into in another jurisdiction, and Montana recognizes common law marriages, based on the facts before us, we do not believe there was sufficient cohabitation and repute to establish a valid common law marriage in Montana.


In a "Statement of Marital Relationship" completed by Marlys, she indicated that she and Darold began living together as husband and wife in North Dakota in 1968. She indicated in this statement that they lived in different cities in North Dakota from 1968 to the time of Darold's death in 1992. Marlys also indicated in her statement that she and Darold believed the State of North Dakota considered them legally married because they were together for seven years.

Marlys also alleges that she and Darold lived together as husband and wife, for some undisclosed periods of time, while he was working in Sydney, Montana. Evidence from Darold's co-workers and relatives of the couple indicated that Marlys and the couple's children would visit for weekends and longer during the summer when Darold was working in Montana. During these visits, the family would reside in a "5th wheel" camper. While it appears Darold possibly worked on and off in Montana over a 30-year period, according to co-workers, he and Marlys always returned "home" to North Dakota.

Legal Analysis

Under the provisions of the Social Security Act (the Act) and the Commissioner's regulations, a widow is entitled to benefits only if she was married to the number holder for at least nine months immediately before his death. 42 U.S.C. § 416(c), 20 C.F.R. § 404.335 (2004). The Act and the Commissioner's regulations provide that the laws of the State where the number holder was domiciled when he died will determine if there was a qualifying marriage. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345 (2004). ("To decide your relationship as the insured's widow or widower, we look to the laws of the State where the insured had a permanent home when he or she died."); see also POMS RS 00207.001 (the validity of the marriage is determined by the laws of the state of the number holder's domicile at the time of his or her death). In order for a common law marriage to be valid, it must have been contracted in a state where common law marriages are recognized. See POMS GN 00305.075.

Common law marriages cannot be formed in the State of North Dakota. See Cermak v. Cermak, 569 N.W.2d 280, 283 (1997) (citing Schumacher v. Great Northern Ry. Co. et al., 136 N.W. 85, 86 (1912)) (noting the 1890 legislature clearly intended to abrogate nonceremonial marriages); see also N.D. Cent. Code § 14-03-01 (providing North Dakota abrogated common law marriages shortly after statehood; unless the statutory requirements are met, the fact of cohabitation alone is insufficient to create a legally recognized marriage.)

To the extent that Marlys alleges that she and Darold entered into a common-law marriage in the State of Montana during her visits, the law and the facts that you provided to us do not support her allegation. Under Montana law, in order to establish the existence of a common law marriage, the proponent of the marriage must show:

1) the parties were competent to enter into a marriage;

2) assumption of such a relationship by mutual consent and agreement; and

3) Marriage of Geertz, 755 P.2d 34, 37 (1988) (citation omitted)); see also Mont. Code Ann. § 40-1-403. Assuming arguendo that Marlys and Darold satisfied the first two requirements, we do not believe the evidence you provided demonstrates sufficient cohabitation and repute in Montana.

Although there is no time requirement that a couple must have residency in Montana before a common law marriage can be effectuated, the court will look to the parties' intent in satisfying the elements of a common-law marriage.

See In re Estate of Murnion, 686 P.2d 893, 906 (1984) (although [the parties] made their agreement to be man and wife while residing in Washington, they did so with the intent of moving to Montana, and they followed through with that intention by moving to Montana soon thereafter.

All the elements of their common law marriage were fulfilled in Montana by virtue of their continuing agreement, cohabitation, mutual assumption, of the marital relationship, and public repute). The Montana Supreme Court has held, however, that short periods of cohabitation and holding out as husband and wife are insufficient to establish the reputation required by the third element. See Miller v. Sutherland, 309 P.2d 322, 328 (1957) (the Court found that a couple who agreed to be husband and wife, who lived in the same home for more than 10 years, but usually in separate bedrooms, and who held themselves out as husband and wife when registering at hotels or lodges, when giving greeting cards, and in executing mutual wills did not establish the existence of a valid common law marriage).

Here, Marlys only visited Darold while he was working in Montana. Although presumably they resided in the same camper during these visits, they never intended to make Montana their home or to move there. See Murnion, 686 P.2d at 899-900. Moreover, the couple entered into contracts, maintained bank accounts, and filed joint state income taxes all in North Dakota. Thus, we believe the alleged marital relationship was formed, maintained, and ended in North Dakota.

With regard to the statements provided by Darold's co-workers, as well as the couples' relatives, at most, they merely reflect that Marlys and Darold made their permanent home in North Dakota during their entire relationship, that they held themselves out as a married couple in North Dakota, and that Marlys occasionally visited Darold in Montana while he was working. We do not believe statements by relatives and co-workers that they believed Darold and Marlys were married when she visited him at his work sites in Montana are sufficient to constitute the degree of public repute necessary to form a valid common law marriage in the State of Montana.


Accordingly, because the common law marriages cannot be entered into in North Dakota, and alternatively, because the evidence you provided does not support the establishment of a valid common law marriage in Montana, Marlys is not the lawful widow of Darold for purposes of entitlement to benefits under the Act.


Deana R. E~-L~
Regional Chief Counsel,

Region VIII, Denver
By _________________________
Carolyn C~

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PR 05605.037 - North Dakota - 01/11/2006
Batch run: 11/29/2012