Common Law Marriage in South Carolina: Requirements and Legal Implications

Common law marriage is a hot topic in South Carolina. With the state’s recent abolition of common law marriages entered into after July 24, 2019, there is much confusion around what constitutes a valid common law marriage in South Carolina and whether common law marriages entered into prior to the new law are still recognized.

Experienced divorce lawyer, Greg Steele, provides a comprehensive overview of common law marriage in South Carolina – from what it is and its history in the state to how to establish a common law marriage and the implications for those who are common law married. Read on to learn everything you need about this unique form of marriage in SC!

What is Common Law Marriage?

A common law marriage is between two people who live together and hold themselves out as husband and wife but have yet to obtain a marriage license or have a wedding ceremony. Before July 24, 2019, South Carolina recognized common law marriages as valid as certain requirements were met. However, as of July 24, 2019, South Carolina abolished all new common law marriages in the state under the ruling of the South Carolina Supreme Court in the case of Stone v. Thompson.

This means that any couple who did not enter into a common law marriage before July 24, 2019, can no longer establish a valid common law marriage in South Carolina. The new law does not affect South Carolina’s recognition of common law marriages established before the cutoff date. Those marriages are still considered valid.

The History of Common Law Marriage in South Carolina

South Carolina had recognized common law marriages since 1911, when the state Supreme Court first acknowledged their validity in the case of Johnson v. Johnson. South Carolina allowed couples to enter legally valid marital unions for over a hundred years without obtaining a marriage license or having a ceremony.

Prior to the July 2019 ruling, South Carolina was one of only eight states that still permitted new common law marriages to be established within its borders. However, the practice has become far less common in recent decades. With the removal of new common-law marriages, South Carolina joined the majority of states in requiring couples to obtain marriage licenses and have ceremonies to enter into legal unions.

Additional Requirements for a Valid Common Law Marriage in South Carolina

If the relationship did happen prior to July 24, 2019, there are still more requirements that would have to be met:

• The parties must have had a present intent to marry – meaning they agreed to enter a marital relationship permanently.
• The parties must have had the legal capacity to get married – they must have been unmarried, unrelated adults of sound mind, and old enough to legally marry (16 years old with parental consent).
• The parties must have lived together and held themselves out to the public as married – by telling others they were married, using the same last name, and filing joint tax returns.
• The parties must have intended and agreed to be married indefinitely – the relationship must have been more than temporary or “just living together.”
• The marriage must be proved by “clear and convincing evidence” to the court.

Simply living together, having a sexual relationship, or referring to each other as “husband” or “wife” does not necessarily establish a common-law marriage. Courts seek evidence that the couple intended to create a real marital union, not just cohabitating.

Implications of Common Law Marriage in South Carolina

Common law marriages established before July 24, 2019, still hold the same legal validity and rights as ceremonial marriages licensed by the state. This includes:

• The requirement to divorce/separation before marrying someone else – no legal bigamy/polygamy.
• Entitlement to spousal benefits like Social Security and pensions based on the other spouse’s work history.
• The ability to file joint state/federal tax returns.
• Coverage under the spouse’s workplace health insurance policy.
• Inheritance rights – inheriting a spouse’s estate without a will, transferring property tax-free between spouses.
• Custody, visitation, and child support arrangements for children born during the marriage.
• Spousal support obligations/eligibility for alimony payments if the couple separates.

Common law marriages give couples all the legal rights and responsibilities of a traditionally licensed marriage without ever stepping foot in a courthouse. However, the lack of a marriage license can make some spousal benefits harder to obtain. Extra proof may be required.

Common Misconceptions About Common Law Marriage

Some common misconceptions about common law marriage include:

• It’s automatically legal after living together for a certain period of time (7 years is a common myth). This is not true – there are specific legal requirements that vary by state for a common law marriage to be valid. Simply cohabitating doesn’t create a legal marriage.
• It’s recognized in every state. This is not true – only a handful of states still recognize common law marriage. Many have abolished it over the years.
• There doesn’t need to be an agreement to be married. Most states require evidence that both partners intended and agreed to be married, even without a formal ceremony.
• You get all the same rights as a ceremonial marriage. While common law marriages grant many legal rights, there can be differences in areas like estate claims, benefits, and taxes compared to a licensed ceremonial marriage.
• It’s easy to end. Like a formal marriage, common law marriage still requires a legal divorce to dissolve it. It’s more complex than just splitting up.
• All assets are automatically joint/shared. Assets earned or acquired during a common law marriage may be considered joint, but there are still procedures for the legal separation of assets.
• It’s a way to get benefits/citizenship by fraud. Some think it’s easy to fake a common law marriage for things like insurance benefits or citizenship. But legal requirements make this difficult, and these types of fraud are punishable.

Many misunderstandings persist about the standards, rights, and temporary nature of common law unions. But in reality, they were meant to constitute valid, formal marriages in every way except the license.

What if one party claims they were not aware they were in a common law marriage?

If one party denies the existence of a common-law marriage, the burden of proof falls on the other party to demonstrate that the requirements for a common-law marriage were met. The burden of proof is typically “clear and convincing evidence,” which is a higher standard than “beyond a reasonable doubt.”

You May Need A Divorce Lawyer For Your Common Law Marriage…

South Carolina has specific rules about common law marriage. If you were in a common law marriage before July 24, 2019, you should know your rights. If you’re confused or have questions, it’s smart to talk to a family lawyer. Serving clients in Anderson and Greenville, SC, Steele Family Law can help. Call today for a consultation.

Author Bio

Greg Steele is CEO and Managing Partner of Steele Family Law, a South Carolina estate planning and family law firm. With years of experience in practicing law, he has zealously represented clients in a wide range of legal matters, including divorce, child custody and support, estate planning, probate, and other legal cases.

Greg received his Juris Doctor from the University of Georgia and is a member of the South Carolina Bar Association. He has received numerous accolades for his work, including being named among Anderson’s Top 20 Under 40 in 2022.