Cecily Zamora
In South Carolina, common-law marriage is a state-recognized marriage where couples choose not to purchase a marriage license or have a ceremony performed by a legally recognized officiant. While common-law marriages were recognized in South Carolina before July 24, 2019, the state has since abolished all new common-law marriages. This means that couples who did not enter into a common-law marriage before this date can no longer establish a valid common-law marriage in South Carolina. For those in a common-law marriage before this date, their union holds the same legal validity and rights as ceremonial marriages, including the requirement to divorce before marrying someone else. However, the existence of a common-law marriage can be challenging to prove, and each state has different requirements for what constitutes a common-law marriage. In South Carolina, certain criteria must be met, including both partners being at least 16 years old, not currently married, and cohabitating.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage in South Carolina | Recognized before 24 July 2019; abolished after this date by the South Carolina Supreme Court |
| Requirements for common-law marriage | Both parties must be at least 16 years old, not currently married to anyone else, not closely related by blood, live together, and agree to consider themselves as spouses |
| Benefits of common-law marriage | Spousal benefits, ability to file joint tax returns, inheritance rights, custody and child support arrangements, spousal support obligations |
| Challenges of common-law marriage | Legal issues, lack of clear rules, difficulty in proving the marriage, no concept of common-law divorce |
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What You'll Learn
Common-law marriage requirements in South Carolina
Common-law marriage in South Carolina is a state-recognized marriage agreement where spouses choose not to purchase a marriage license or have a ceremony performed by a legally recognized officiant. For many years, couples who did not want to get a marriage license or didn't have the means to obtain one had the option of entering into a common-law marriage.
Requirements for common-law marriage in South Carolina
- Both partners must be at least 16 years old.
- Both partners must not be currently married to anyone else.
- The couple must not be closely related by blood.
- The couple must live together.
- Both partners must agree to consider themselves as spouses.
- The couple must have the legal capacity to get married – they must be unmarried, unrelated adults of sound mind, and old enough to legally marry (16 years old with parental consent).
- The couple must have a present intent to marry – meaning they agreed to enter a marital relationship permanently.
Changes to common-law marriage in South Carolina
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. However, common-law marriages established before this date still hold the same legal validity and rights as ceremonial marriages licensed by the state.
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Rights of common-law couples in South Carolina
South Carolina abolished common-law marriages in the state in 2019, under the ruling of the South Carolina Supreme Court in the case of Stone v. Thompson. However, couples who entered into a common-law marriage before July 24, 2019, are still considered married and enjoy the same rights and responsibilities as couples married ceremonially.
Rights of common-law couples married before July 24, 2019
- Common-law couples are required to obtain a divorce or separate before marrying someone else.
- They are entitled to spousal benefits, such as Social Security and pensions based on their spouse's work history.
- They can file joint state/federal tax returns.
- They have coverage under their spouse's workplace health insurance policy.
- They have inheritance rights, including inheriting their spouse's estate without a will and transferring property tax-free.
- They have the right to seek spousal support, alimony, and the equitable division of marital property.
- Children born of the marriage are legally presumed to be children of the husband, who has full custody rights until the family court orders otherwise.
Establishing a common-law marriage
For couples who believe they are in a common-law marriage, it is important to note that simply living together, having a sexual relationship, or referring to each other as "husband" or "wife" does not establish a common-law marriage. To prove a common-law marriage, the couple must demonstrate their intent to be married and hold themselves out as married to the community. This can include purchasing a home as joint tenants with rights of survivorship, having joint bank accounts, and calling each other husband and wife.
If you have concerns about your rights in a common-law marriage or are seeking to establish a common-law marriage, it is recommended to consult with a family law attorney in South Carolina.
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Common-law marriage and inheritance rights
In South Carolina, common-law marriages were recognised as valid before 24 July 2019, as long as certain requirements were met. However, after this date, the South Carolina Supreme Court abolished all new common-law marriages in the case of Stone v. Thompson. This means that couples who did not enter into a common-law marriage before this date cannot establish a valid common-law marriage in South Carolina.
Common-law marriages in South Carolina provided couples with the same legal rights and responsibilities as a traditionally licensed marriage, including inheritance rights. If one spouse in a common-law marriage passed away without a will, the surviving spouse could inherit their estate. This could result in significant changes to inheritance rights, as seen in several cases where the determination of a common-law marriage at the time of death was litigated.
In terms of inheritance rights for common-law spouses in Scotland, there is no recognition of common-law marriage. However, unmarried cohabitants, often referred to as "common-law spouses" or "common-law partners," have certain rights upon the death of their partner. If the cohabitant was living with the deceased person in Scotland immediately before their death and there was no valid will, they may have a claim against their estate. To make a claim, the cohabitant must take action within six months of their partner's death.
It is important to note that inheritance laws and the recognition of common-law marriages can vary across different jurisdictions. While common-law marriages were previously recognised in South Carolina, they are not recognised in Scotland, and the specific rights and requirements may differ. Seeking legal advice from a professional familiar with the laws in the relevant jurisdiction is always recommended to understand one's rights and options.
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Common-law marriage and child custody
Common-law marriage in South Carolina allowed couples to be legally married without a formal ceremony or marriage license. To be recognized as married, the couple needed to present themselves as a married couple, intend to be married, and cohabit for an unspecified period. In 2019, South Carolina abolished common-law marriage, but couples who entered such arrangements before this date are still considered married and subject to the same rules and obligations as traditionally married couples during divorce.
When it comes to child custody in South Carolina, the family court determines what is in the "best interests of the child." While there is no rule mandating custody be awarded to the primary caretaker, it is often assumed that the mother, as the primary caretaker, will gain custody. However, fathers can establish paternity and seek custody or visitation rights.
In custody matters, both parents have equal rights to custody of their children, and the court must consider all relevant factors, including the "psychological, physical, environmental, spiritual, educational, medical, family, emotional, and recreational aspects" of the child's life. The court must also give weight to evidence of domestic violence and may impose restraints on parents, such as prohibiting exposure of the child to overnight guests or substance abuse.
In cases of sole custody, the custodial parent should facilitate opportunities for reasonable communication between the child and the noncustodial parent, and both parents have equal access to educational and medical records. Visitation schedules are typically set by the court, with the noncustodial parent usually granted custody every other weekend, one evening per week, and split time during holidays and vacations. Child support payments may also be required from the noncustodial parent to maintain the child's standard of living.
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Common-law marriage and taxes
In South Carolina, common-law marriages were recognised as valid before 24 July 2019, after which the state abolished all new common-law marriages. Couples in a common-law marriage before this date are still subject to the same legal validity and rights as ceremonial marriages, including the ability to file joint state/federal tax returns.
For federal tax purposes, a taxpayer's rights and interests in property are determined under the laws of their state of domicile. In community property states, community property laws apply to spouses who are living apart or filing for divorce, until a final decree of divorce or legal separation is entered. A final decree cannot be made retroactive to a prior completed tax year for federal income tax purposes.
In some states, property acquired during marriage but before spouses were subject to a community property regime may be treated as community property for purposes of probate or dissolution of marriage. This gives the surviving spouse rights against the property that they would not otherwise have. However, this characterisation of property has little or no impact on basic principles of income taxation of community property or collection, as quasi-community property is not taxed as community property.
In Texas, a valid common-law marriage is not presumed under law, and the burden of proof falls on the party asserting its existence. The elements of a common-law marriage in Texas are: 1) an agreement to be married, 2) living together as a married couple, and 3) representing to others that they are married. The elements of common-law marriage in other states vary. Registered domestic partners are not considered married for federal tax purposes and may not file "married filing jointly" or "married filing separately" federal income tax returns. However, under the laws of California, Nevada, and Washington, registered domestic partners are subject to state community property laws in the same manner as married couples.
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Frequently asked questions
A common-law marriage is a state-recognized marriage where both parties choose not to purchase a marriage license or have a ceremony performed by a legally recognized officiant.
The requirements for a common-law marriage in South Carolina include:
- Both partners must be at least 16 years old, not currently married to anyone else, and not closely related by blood.
- Both parties must live together.
- Both parties must agree that they are spouses.
- Both parties must hold themselves out to the public as married.
As of July 24, 2019, South Carolina no longer recognizes new common-law marriages. Any common-law marriage established before this date still holds the same legal validity and rights as ceremonial marriages.
The benefits of a common-law marriage in South Carolina include:
- Spousal benefits like Social Security and pensions.
- Joint state/federal tax returns.
- Coverage under the spouse's workplace health insurance policy.
- Inheritance rights.
- Custody, visitation, and child support arrangements for children born during the marriage.
To prove a common-law marriage in South Carolina, you must show that both parties are legally free to marry and that you lived together. Additionally, you must demonstrate intent to be married and establish a reputation as a married couple by acting in ways that are accepted by the public as a married couple.
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