Common law marriage in South Carolina was a state-recognized marriage agreement where spouses choose not to purchase a marriage license or have a ceremony performed by a legally recognized officiant before 2019.
After 2019, Common Law Marriage in South Carolina isn’t regarded as a Valid Form of Marriage after the landmark ruling of South Carolina Supreme Court in Stone Vs. Thompson.
Many couples who act as spouses elect to have a common-law marriage because of the convenience it offers while allowing the couple to still function as partners.
Common-law marriages date from a time when transportation was more of a challenge and couples might not have been able to travel to the courthouse to apply for a marriage license.
When people married under common law, they stated an intention for the state to recognize them legally as spouses. Both parties needed to agree that they are spouses to qualify as a common-law marriage.
Requirements for a Common-Law Marriage
Each state has its own unique requirements for establishing a common-law marriage. In South Carolina, certain criteria had to be met for a common-law marriage to be recognized.
Additionally, the couple must live together and agree to consider themselves as spouses. It is important to note that meeting these requirements does not automatically grant common-law marriage status; it is recognition by the state.
States that Allow Common Law Marriage
Many states allow current common-law marriages or recognize those from before state legislature stated otherwise. States that allow common-law marriages as legal marriages include:
- Iowa
- Kansas
- Montana
- New Hampshire
- Texas
- Utah
When considering classifying your relationship as a common-law marriage in these states, you should still check state requirements to ensure your relationship fits their qualifications.
States that don’t Allow Common Law Marriages
However, many states have changed their original stances on common-law marriages, though they still support the validity of common-law marriages that existed before state legislation changed. In these states, couples who were in common-law marriages before the law changed can continue their relationship as legal spouses, but the state will not recognize any new common-law marriages. These states include:
- Alabama
- Colorado
- Florida
- Georgia
- Indiana
- Ohio
- Pennsylvania
- South Carolina
Although many couples in a common-law marriage were in agreement about their marital status, there have been instances when one partner claimed the couple were married and the other partner disagreed. In those cases, the court needed to intervene and determine whether or not a couple was truly married.
Since there is a potential for confusion or disagreement, South Carolina’s Supreme Court ruled in 2019 that common-law marriage would no longer be possible.
Legality of Common Law Marriage in South Carolina Before 2019
Prior to 2019, South Carolina was one of only eight states that allowed common-law marriage. In states such as Colorado, Kansas and New Hampshire, state statutes and family law rules make express conditions under which common-law marriages occur.
In South Carolina, it is more a case of what the law did not require for a couple to consider themselves married in the eyes of the state.
While Section 20, Chapter 1 of the South Carolina State Statutes lays out the terms under which a legally binding marriage is entered into, Section 20-1-360 expressly stated that nothing in the chapter precludes a legal marriage on the basis that a couple has not obtained a marriage license.
Because many couples entered into a common-law marriage in South Carolina before July 24, 2019, the state still views them as married, so they can continue to file their state and federal tax returns under the status of “Married, Filing Jointly” or “Married, Filing Separately.”
Legality of Common Law Marriage After 2019
The Supreme Court of South Carolina ruled against common-law marriage in the case Stone v. Thompson. In the ruling, the Court noted that remaining unmarried was increasingly common and that people had as much right to remain unmarried as to get married.
It also noted that most people did not understand the existing common-law marriage requirements, meaning that many people were unaware of what qualified a couple for a common-law marriage. In recognition of shifting cultural and societal norms and an attempt to simplify the legal process, the Court ruled that after July 24, 2019, no one in South Carolina could enter into a valid marriage without a license.
The Court’s ruling also made the process of proving a common-law marriage established prior to July 2019 clearer. South Carolina also has varying Laws related to Weed with Stringent Legislation and Court Restrictions.
How to Prove a Common Law Marriage Exists
Stone v. Thompson details the key element that is necessary to prove that a common-law marriage established prior to 2019 exists — both parties need to intend to be married to each other and need to recognize that their partner intends to be married to them. One spouse can’t say they are married, while the other spouse says they are simply cohabitating.
How Do I Prove one in a Common Law Marriage in South Carolina?
First, one have to show that you’re both legally free to marry as mentioned above. Second, you must show that you and your partner lived together for some period of time. The third and fourth items, intent to be married and a reputation as a married couple can be challenging to prove:
Intent to be Married – Intent to be married can either be formal (such as a written agreement signed by both parties stating they’re married) or informal (such as calling each other husband and wife). Whether the intent is formal or informal, you must also show that you and your partner both held yourselves out to the public as being husband and wife.
Holding Yourself Out to the Public as Married – This is also called “reputation.” Essentially, you must show evidence that both you and your partner acted in ways so that the public accepted you as a married couple. Examples include:
Both parties in the relationship told others that they were husband and wife – That would not only be proof of an intent to be married but also proof that you held yourself out to the public as a married couple. If one party was making that claim, and the other party didn’t know it, then that wouldn’t be proof of reputation. However, if one party was making that claim in front of the other party, and the other party remained silent and let others think there was a marriage, then that would be proof that you were married under common law.
The couple fills out paperwork using the same last name – Again, this would be proof of intent to be married and proof of reputation. A few examples of this include:
- Joint checking accounts
- Lease agreements
- Hotel or motel registries
- Joint tax returns
- Beneficiaries on life insurance
Why Does It Matter
If a couple breaks up, the rights between them can be drastically different depending on whether they’re considered to be in a common-law marriage. Here are some examples:
Bigamy – If the couple is married under the common law, then they must get a divorce. Otherwise, it’s illegal (bigamy) for either one of them to get remarried.
Alimony – Let’s assume that an unmarried couple lives together, and one of them provides most or all of the financial support by paying the bills. If the couple splits apart, each party is on its own financially. However, if the couple is married under common law, then the breadwinner may have an obligation to pay alimony to the other party.
Assets and Debts – When an unmarried couple lives together, it’s common for both of them to contribute financially to their relationship such as helping to make mortgage payments or buying furniture and appliances together. When the unmarried couple splits, major problems can arise over property and debts if the parties can’t agree on how to divide their assets and debts.
For example, we dealt with a case where an unmarried couple lived in a home that was titled in the boyfriend’s name, but both parties signed the mortgage. When the couple broke up, the boyfriend was legally entitled to keep the property and any equity in the property even though the girlfriend made mortgage payments for several years.
To make matters worse, the boyfriend wasn’t able to make the mortgage payment on his own, and the house went into foreclosure. Because the girlfriend signed the mortgage, her credit was ruined, and the bank tried to collect directly from her. If the couple had been married, then the family court could have ordered that the property be sold and that the woman receive her fair share of the equity in the home. Also, the family court could have ordered that she remain in the home instead of her boyfriend.
Children – If the unmarried couple has a child, then the law states that the mother has full custody of the child. Absent a family court order stating otherwise, the father has no rights other than to support the child. However, if the couple is married under common law, then the father’s rights are equal to the mother’s rights.
Death and Probate – If an unmarried couple lives together, and one partner dies without a will, then the other partner has no right to inherit any money or property from the deceased.
If the couple is married under the common law, then even if the deceased didn’t have a will, the survivor would receive half of the deceased’s estate if they had kids and all of the estate if they didn’t have kids. Also, if the deceased partner had a will but purposely left the other out of the will, the common-law spouse would still be entitled to 1/3rd of the deceased’s estate.
FAQ’s
How long do you have to live together for common law marriage in SC?
This “present intent” to be married is generally proven by evidence proving that the parties were cohabitating, and holding themselves out, publicly and privately, as married. The parties must cohabitate for some period of time; however, there is NO time requirement of 7 years, as often wrongly believed.
What does common law mean in South Carolina?
Whereas, under the common law of the State of South Carolina, marriages have previously been recognized between a consenting man and woman without benefit of license or ceremony, in situations where both parties are legally free to marry, have the intent to be married to each other, consummate the union by cohabitation.
What is the cohabitation law in South Carolina?
Unmarried people living together have no rights to the other person’s property unless they have entered into a cohabitation agreement, which can be either written or implied. The built-in protections that a spouse has as a married person do not exist when two people live together.
How do you prove common law marriage in SC?
The Court ruled that there needs to be “clear and convincing evidence” that both parties in a couple intend to act as spouses. Even if one party wants to claim that they are married, they need to present evidence. Some examples of what couples can provide as proof include: Jointly owned bank accounts or properties.
How many years do you have to be married to get alimony in South Carolina?
The judge will weigh these factors and determine if alimony should be awarded. Often, there is a ten-year benchmark. If a couple has been married ten or more years, then most lawyers understand there will be a conversation about alimony – though this is not a legal standard.