Gavin Howe
Common-law marriage has existed for centuries in South Carolina, but as of July 24, 2019, the state no longer recognizes new common-law marriages. This means that couples who entered into a common-law marriage before this date may still have to prove their marriage for various legal purposes, such as divorce, inheritance, or death benefits. To prove a common-law marriage in South Carolina, couples must provide clear and convincing evidence of their intention to be married, such as testimonies from friends and family, jointly owned bank accounts or properties, or a notarized statement affirming their agreement to be considered a common-law marriage. While the specific requirements vary by state, it is important to note that meeting the criteria for a common-law marriage does not automatically grant that status; it is ultimately a recognition by the state.
| Characteristics | Values |
|---|---|
| Recognition by the state | South Carolina no longer recognizes common-law marriages as of July 24, 2019. |
| Age of partners | Both partners must be at least 16 years old. |
| Marital status | Neither partner should be currently married to anyone else. |
| Relationship | The couple should not be closely related by blood. |
| Cohabitation | The couple must live together but there is no minimum period for this. |
| Intention to be married | Both parties must intend to be married to each other and recognize that their partner intends to be married to them. |
| Holding out as married | The couple must present themselves as married to family, friends, and the community. |
| Evidence | Evidence may include jointly owned bank accounts, properties, leases, or affidavits. |
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What You'll Learn
Common-law marriage requirements in South Carolina
South Carolina no longer recognizes new common-law marriages as of July 24, 2019, following a ruling by the South Carolina Supreme Court. This ruling, issued in the case of Stone v. Thompson, stated that no new common-law marriages could be formed after this date. However, this change does not affect common-law marriages that were entered into prior to July 24, 2019, and these older relationships may still be recognized if certain criteria are met.
To prove a common-law marriage in South Carolina, the couple must provide "'clear and convincing evidence' that they intended to be married and recognized each other as spouses. This evidence can include jointly owned bank accounts, properties, or leases, as well as testimonies from friends and family stating that the couple presented themselves as married. Simply living together, having a sexual relationship, or referring to each other as "husband" or "wife" does not necessarily establish a common-law marriage.
In addition to the requirement of intent, there are also a few other criteria that must be met for a common-law marriage to be recognized in South Carolina. Both partners must be at least 16 years old, not currently married to anyone else, and not closely related by blood. Additionally, the couple must live together, although there is no minimum period of time required for this.
If you are unsure about whether you are in a valid common-law marriage or have concerns about your rights in a relationship, it is advisable to seek legal guidance from a family lawyer or an estate planning lawyer. They can help you understand your specific situation and guide you through any legal questions or processes that may arise.
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Proving intent to be married
As of July 25, 2019, couples can no longer enter into a valid common-law marriage in South Carolina. However, couples attempting to establish a common-law marriage prior to this date must provide "clear and convincing evidence" of their intent to be married.
To prove intent to be married, couples must demonstrate that both parties intended to be married to each other and recognised their partner's intention to be married to them. This can be done through a notarised statement, such as an affidavit of common-law marriage, where they affirm their agreement to be considered a common-law marriage. This statement can include copies of documents such as joint bank accounts, leases, or deeds to jointly owned properties.
Other ways to prove intent to be married include:
- Filing joint tax returns as a married couple
- Using the same surnames
- Listing each other as spouses on employment documents
- Buying property together
- Naming each other as beneficiaries on life insurance documents
- Including each other on health insurance documents as spouses
It is important to note that simply living together does not constitute a common-law marriage, and there is no minimum period of cohabitation required. The key element is the mutual intent to be married.
If one spouse dies without a will, the surviving spouse will have to prove the existence of a common-law marriage for inheritance purposes and potential survivor benefits. This process can be challenging, lengthy, and costly, so it is advisable to seek legal assistance as soon as possible.
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Evidence for common-law marriage
As of July 24, 2019, South Carolina no longer recognizes new common-law marriages. However, common-law marriages established before this date still hold the same legal validity and rights as ceremonial marriages licensed by the state.
If you need to prove a common-law marriage, you must provide "'clear and convincing evidence' to the court that both parties intended to be married and recognized their partner's intention to be married. Testimonies from friends or family stating that the couple presented themselves as married may be part of this evidence.
Other examples of evidence for a common-law marriage include:
- Jointly owned bank accounts, properties, or leases
- Copies of documents that back up the claim, such as a lease in both names or a deed to jointly owned property
- An affidavit of common-law marriage, which is a notarized statement affirming the couple's agreement to have their relationship considered a common-law marriage, along with facts and copies of documents to prove the marriage's existence
It's important to note that simply living together, having a sexual relationship, or referring to each other as "husband" or "wife" does not necessarily establish a common-law marriage. The court seeks evidence of a couple's intention to create a real marital union, rather than simply cohabitating.
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Common-law marriage disputes
Proving Common-Law Marriage
The South Carolina Supreme Court's ruling in Stone v. Thompson established that for common-law marriages established prior to July 24, 2019, both parties must intend to be married to each other and recognize their partner's intention to be married. "Clear and convincing evidence" of this mutual intent is required, which can include jointly owned bank accounts, properties, or an affidavit of common-law marriage.
Dissolution of Common-Law Marriage
In the event of a separation, common-law marriages in South Carolina cannot be dissolved through a "common-law divorce." Instead, the court must decide whether the parties were legally married, and a formal divorce process is required. This includes dividing marital property, determining alimony, and establishing child support and custody arrangements.
Death of a Common-Law Spouse
Upon the death of one spouse in a common-law marriage, the surviving spouse may need to prove the existence of the marriage to claim survivor benefits, Social Security benefits, and access to the deceased's retirement accounts and estate. Seeking legal assistance promptly is crucial to ensure that spousal rights are protected.
Property Ownership Disputes
Common-law marriages can face challenges regarding property ownership, especially if the couple did not proactively document how they intend to handle these situations. Consulting an estate planning lawyer can help establish the nature of the relationship and outline the rights and privileges each party is entitled to.
Interstate Recognition
When moving to another state that does not recognize common-law marriage, providing evidence of the relationship may still be necessary. Each state has its own requirements for recognizing common-law marriages, so it is essential to be aware of these differences and seek legal guidance if needed.
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Legal advice for common-law marriage
Common-law marriage, a long-standing tradition in South Carolina, was abolished in the state in 2019. The South Carolina Supreme Court ruled in Stone v. Thompson that no new common-law marriages could be formed after July 24, 2019. This ruling brought an end to a practice that had allowed couples to be considered married without a traditional ceremony or official license. While this change brought relief to some, it also caused confusion for many couples, especially those who had entered into common-law marriages before the cutoff date.
If you believe you formed a common-law marriage before July 24, 2019, it is important to understand your rights and how to prove your marital status. Here are some key considerations and steps to take:
- Understand the criteria for common-law marriage: Before the 2019 ruling, common-law marriage in South Carolina required both partners to be at least 16 years old, not currently married to anyone else, and not closely related by blood. Additionally, the couple had to live together and agree to consider themselves as spouses. Simply living together or referring to each other as "husband" or "wife" was not enough—there must have been a clear intention to be married.
- Gather evidence: If you need to prove your common-law marriage, you must provide clear and convincing evidence to the court. This can include testimonies from friends or family stating that you presented yourselves as married, jointly owned bank accounts or properties, a lease in both names, or a deed to jointly owned property.
- Seek legal assistance: Given the complexity of this issue, it is highly advisable to consult with an experienced family law or estate planning attorney. They can guide you through the legal questions and processes involved in establishing a common-law marriage and help protect your rights.
- Consider proactive documentation: To prevent potential property ownership disputes and other concerns, consider executing a health care power of attorney or a financial power of attorney to allow your partner to make decisions on your behalf if needed. An estate planning lawyer can assist in this process and help establish the nature of your relationship.
- Understand the ongoing validity of pre-2019 common-law marriages: While South Carolina no longer recognizes new common-law marriages, those formed before July 24, 2019, still hold the same legal validity and rights as ceremonial marriages. This includes the requirement to obtain a divorce before marrying someone else, entitlement to spousal benefits, the ability to file joint tax returns, inheritance rights, and more.
In summary, while common-law marriage is no longer an option for couples in South Carolina, those who entered into such marriages before the 2019 cutoff date retain their marital status and associated rights. If you fall into this category, it is essential to consult with a legal professional to understand your specific situation and ensure your rights are protected.
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Frequently asked questions
A common-law marriage is a legal concept that applies to couples who are in a relationship that has the appearance of a marriage but hasn't been formally sanctioned by the state.
No, South Carolina no longer recognizes new common-law marriages as of July 24, 2019, following a ruling by the South Carolina Supreme Court. However, common-law marriages established before this date are still valid.
Both partners must be at least 16 years old, not currently married to anyone else, and not closely related by blood. Additionally, the couple must live together, agree to consider themselves as spouses, and present themselves as married to family and friends.
You must provide clear and convincing evidence to the court that both parties intended to be married and recognized their partner's intention to be married. This can include testimonies from friends and family, jointly owned bank accounts or properties, a lease in both names, or a notarized statement affirming the relationship as a common-law marriage.
A common-law marriage in South Carolina confers the same benefits and obligations as a formal marriage, including spousal benefits, the ability to file joint tax returns, inheritance rights, and the requirement for divorce or separation before remarrying.
