Cameron Miranda
How to Apply for Common Law Marriage in South Carolina
Common-law marriage, which is a state-recognized marriage without a legal license or ceremony, is no longer recognized in South Carolina as of July 24, 2019. Before this date, couples in the state could enter into a legally binding marriage simply by living together and agreeing to consider themselves spouses. However, this is no longer possible due to a ruling by the South Carolina Supreme Court, which cited the potential for confusion and the increasing trend of non-marital cohabitation as reasons for its decision. Couples who entered into a common-law marriage before the cutoff date are still recognized as married and retain the same legal rights as couples with a ceremonial marriage. If you were in a common-law marriage before July 24, 2019, and want to understand your rights, it is recommended that you consult a family lawyer.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriages | Common-law marriages are no longer recognized in South Carolina as of July 24, 2019. |
| Requirements for common-law marriage | Before July 24, 2019, couples were required to live together, agree to be considered spouses, and meet certain criteria (both partners must be at least 16 years old, not currently married, and not closely related by blood). |
| Proof of common-law marriage | "Clear and convincing evidence" is needed to prove the existence of a common-law marriage. This includes evidence of mutual intent to be married, beyond just cohabitation. |
| Rights of common-law spouses | Common-law spouses have similar rights to ceremonially married couples, including spousal benefits, the ability to file joint tax returns, inheritance rights, and entitlement to spousal support upon divorce. |
| Establishing a common-law marriage | Couples cannot establish a common-law marriage in South Carolina as of July 24, 2019. They must obtain a marriage license and participate in a ceremony conducted by a notary public or religious leader. |
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What You'll Learn
Criteria for common-law marriage recognition
On July 24, 2019, the Supreme Court of South Carolina ruled against common-law marriage in the case of Stone v. Thompson, officially ending the recognition of common-law marriage in the state. This ruling clarified that no one in South Carolina could enter into a valid marriage without a license.
Prior to this change, common-law marriage allowed couples who lived together and met certain criteria to be considered legally married without formalizing their relationship through a wedding ceremony or marriage license.
- Both partners must be at least 16 years old.
- Neither partner is currently married to anyone else.
- The couple is not closely related by blood.
- The couple must live together.
- Both partners must agree to consider themselves as spouses. This includes openly and consistently presenting themselves as married in public, such as referring to each other as spouses and showing commitment to one another.
- There must be a mutual understanding or intention of entering into marriage. If one partner opposes the idea of marriage or their public conduct does not reflect a marital relationship, a common-law marriage is unlikely to be established.
It is important to note that simply living together or having a child together does not create a common-law marriage. Additionally, the length of the relationship, such as living together for seven years, does not automatically grant common-law marriage status.
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How to prove a common-law marriage
Common-law marriage in South Carolina has been abolished as of July 24, 2019. This means that any couple who did not enter into a common-law marriage before this date can no longer establish a valid common-law marriage in the state. However, marriages that were entered into before this date are still considered valid.
If you were in a common-law marriage before July 24, 2019, it is important to understand your rights and how the recent change will affect issues arising from the marriage, such as alimony and child custody. To prove a common-law marriage in South Carolina, the following criteria must be met:
- 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.
- The couple must 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 a recognition by the state. The burden of proof falls on the party claiming the existence of a common-law marriage, and the standard of proof is "clear and convincing evidence," which is higher than "beyond a reasonable doubt." 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 cohabitation.
If you are unsure whether your common-law marriage is valid or have questions about your rights, it is recommended to consult with a family lawyer or an experienced estate planning attorney in South Carolina.
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Rights of spouses in a common-law marriage
Common-law marriages in South Carolina are valid if they were established before 24 July 2019. After this date, couples in South Carolina cannot enter into a common-law marriage and must obtain a marriage license and participate in a ceremony to be considered married.
Common-law marriages in South Carolina are marriages without a license or ceremony, where spouses choose to function as partners. This type of marriage has existed for centuries in South Carolina, arising when transportation to the courthouse to obtain a marriage license was difficult and the cost of a marriage license could be burdensome.
Spouses in a common-law marriage in South Carolina have the same legal rights and responsibilities as those in a traditionally licensed marriage. These rights include:
- Entitlement to spousal benefits, such as 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, including inheriting a spouse's estate without a will and transferring property tax-free.
- Custody, visitation, and child support arrangements for children born during the marriage.
- Spousal support obligations/eligibility for alimony payments if the couple separates.
However, it is important to note that without a marriage certificate, partners may find they have fewer rights than they thought, and extra proof may be required to obtain certain spousal benefits. For example, in the case of a divorce, alimony is typically not available to non-married couples who separate, but it may be required for a common-law married couple. Additionally, a home acquired before the marriage is not considered marital property, whereas a home acquired during the marriage is subject to equitable distribution on divorce.
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Child custody in common-law marriages
In South Carolina, common-law marriages are no longer possible as of July 24, 2019. The state's Supreme Court abolished this type of marriage, ruling that couples must obtain a marriage license and undergo a ceremony to be considered married. However, this ruling does not affect couples who were in a common-law marriage before this date.
Now, turning to child custody in the context of common-law marriages in South Carolina, it's important to note that the existence of a common-law marriage is just one factor among many in determining child custody. The best interests of the child are always the primary consideration.
In South Carolina, the two main types of child custody are joint custody and sole custody. In joint custody arrangements, both parents typically have decision-making power over major parental decisions. However, one parent, often referred to as the "primary" parent, is designated as the ultimate decision-maker if the parents disagree. In joint custody situations, one parent may be required to pay child support, typically the non-custodial parent or the parent with the lower salary.
When it comes to sole custody in South Carolina, the parent with custody has both physical and legal custody of the child. The other parent often receives visitation rights. By default, when a child is born to unmarried parents, the mother is automatically granted sole custody. However, the father can petition the court for custody once paternity is legally established.
In the context of common-law marriages, the existence of such a marriage could impact child custody determinations. For example, if one spouse in a common-law marriage passes away, the surviving spouse may be presumed to have custody of their child. However, another party could still go to family court and claim that the surviving spouse is unfit to care for the child, potentially altering the custody arrangement.
Additionally, in the event of a divorce between common-law spouses, alimony may be required, which is a form of spousal maintenance where one spouse provides financial support to the other. This could indirectly impact child custody arrangements by affecting the financial resources available to each spouse and, by extension, their ability to provide for the child's needs.
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Alternatives to common-law marriage
As of July 24, 2019, common-law marriages are no longer recognized in South Carolina for couples who entered into a relationship after this date. The South Carolina Supreme Court abolished the institution of common-law marriage, resulting in a regime where individuals must obtain a marriage license and participate in a ceremony to be considered married.
- Obtain a Marriage License and Have a Ceremony: Couples who want to be considered legally married in South Carolina after July 24, 2019, can obtain a marriage license and participate in a simple ceremony performed by a notary public or an ordained religious leader. This option provides couples with various rights and protections, including tax benefits, inheritance and property rights, spousal privileges, hospital visitation rights, and health insurance coverage.
- Domestic Partnerships: While domestic partnerships do not grant all the rights and protections of marriage, they can provide some legal recognition and benefits to cohabiting couples. This option ensures that individuals in a caretaking role within the relationship have property protection. However, the specific benefits and protections offered can vary by jurisdiction.
- Marvin Agreements: Marvin agreements, named after the case Marvin v. Marvin in California, can offer an alternative to marriage. These agreements provide some protections and adjustments to property rights between parties who treat each other as spouses without being legally married. While they do not grant all the rights of marriage, they can ensure that the caretaker or stay-at-home partner in the relationship has some form of property protection if the relationship ends.
- Formal Agreements: Couples who want to maintain an unmarried status can draft formal agreements to define their living arrangements and proactively address potential disputes. This includes executing powers of attorney for healthcare and financial decisions, which can allow partners to make important choices on behalf of each other in the event of incapacitation. These agreements help to protect the interests of both parties in the absence of the legal protections granted to married couples.
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Frequently asked questions
No, as of July 24, 2019, South Carolina abolished all new common-law marriages in the state.
Common-law marriages established before July 24, 2019, are still considered valid and hold the same legal validity and rights as ceremonial marriages licensed by the state.
Both partners 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.
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.
