Keith Mack
Common-law marriage, which allows couples to be considered married without a marriage license or ceremony, has existed for centuries in South Carolina. However, as of July 24, 2019, South Carolina no longer recognizes new common-law marriages. This means that couples in the state who want to be legally married must obtain a marriage license and participate in a ceremony. For couples who entered into a common-law marriage before July 24, 2019, their union is still valid and recognized by the state, but they may need to provide clear and convincing evidence of their marriage in certain situations, such as divorce or inheritance disputes. To prove a common-law marriage in South Carolina, factors such as mutual intent, holding themselves out as married to the public, and meeting certain legal standards (e.g., age, mental competence, and not being currently married to someone else) are considered.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Recognized before 24 July 2019 |
| Abolished after 24 July 2019 | |
| Requirements for common-law marriage | Both partners must be at least 16 years old |
| Partners must not be married to anyone else | |
| Partners must not be closely related by blood | |
| Partners must live together | |
| Partners must agree to consider themselves as spouses | |
| Partners must hold themselves out as married to the community | |
| Mutual intent to be married |
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What You'll Learn
Common-law marriage abolished in South Carolina after July 24, 2019
Common-law marriage, which has existed for centuries in South Carolina, was abolished in the state after July 24, 2019. This decision was made by the South Carolina Supreme Court in the case of Stone v. Thompson.
Prior to this ruling, South Carolina was one of only a few states that allowed common-law marriage. Common-law marriage was a state-recognized marriage where couples chose not to purchase a marriage license or have a ceremony performed by a legally recognized officiant. To qualify as a common-law marriage in South Carolina, certain criteria had to be met. Both partners had 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.
The Supreme Court's decision to abolish common-law marriage is prospective and not retroactive. This means that any couple who entered into a common-law marriage before July 24, 2019, is still considered married under South Carolina law. However, the Court did announce new evidentiary rules for common-law marriages, making it more difficult to prove the existence of a common-law marriage. Couples must now prove marriage by "clear and convincing evidence," which is an intermediate standard of proof.
The abolition of common-law marriage in South Carolina is a significant change, and it is important for couples who may have been relying on this form of marriage to understand the new requirements for marriage in the state. Couples who wish to be considered married in South Carolina after July 24, 2019, must obtain a marriage license and participate in a marriage ceremony.
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Criteria for common-law marriage in South Carolina
South Carolina no longer recognizes new common-law marriages as of July 24, 2019. However, couples who entered into a common-law marriage before this date will still be considered legally married.
Intent to be married
Both partners must intend to be married and understand each other's intent. This is the key element, as established in the Stone case.
Holding out as married
The couple must act as if they are married in the eyes of the community. This could include purchasing a home as joint tenants, having joint bank accounts, referring to each other as husband and wife, and so on.
Other requirements
There are also other requirements that must be met for a common-law marriage to be recognized:
- Both partners must be at least 16 years old.
- The couple must not be closely related by blood (i.e., the marriage must not constitute incest).
- Neither partner must be currently married to anyone else (i.e., no bigamy).
- Both partners must be mentally competent, meaning not suffering from mental illness or under the influence of drugs or alcohol to the extent that it would impair their ability to understand what they are doing.
It is important to note that simply living together does not constitute a common-law marriage. The above criteria must be met, and the couple must be able to provide "clear and convincing evidence" of their mutual intent to be married.
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Common-law marriage vs. traditional marriage
Common-law marriage and traditional marriage are two different types of marriages with distinct legal implications. Common-law marriage, also known as a common-law partnership, is a legally recognized marriage without a marriage license or a formal ceremony. It is permitted in a few states in the US and the District of Columbia, with each jurisdiction having its own unique requirements for establishing such a marriage. For instance, in South Carolina, certain criteria must be met for a common-law marriage to be recognized. These include both partners being at least 16 years old, not currently married to other people, not being closely related by blood, living together, and agreeing to consider themselves as spouses.
On the other hand, traditional marriage, also referred to as ceremonial marriage, is the primary means of getting married in most states, including Texas. This type of marriage is linked to wedding ceremonies and requires a marriage license, which must be obtained before the ceremony and executed by the county clerk. While a ceremony is not mandatory in Texas, an authorized person under state law, such as a licensed minister or a judge, must conduct it.
The critical difference between common-law marriage and traditional marriage lies in their formalization processes. Common-law marriage is often characterized by partners living together in a marriage-like relationship without a formal ceremony, while traditional marriage involves a more formalized process, including legal documentation.
It is important to note that the recognition of common-law marriage has changed over time. In South Carolina, for example, a 2019 ruling by the state's Supreme Court prevented new common-law marriages from being established after July 24, 2019. Similarly, Texas, which recognizes common-law marriages, requires a Declaration of Informal Marriage to prove the existence of such a union.
In terms of rights and responsibilities, common-law marriages generally afford couples similar privileges to those in traditional marriages. For instance, in Texas, common-law spouses enjoy the same rights and responsibilities as those in traditional marriages, including the requirement to undergo the same divorce procedures. However, in the absence of a will, common-law partners may not automatically be granted the same rights as married couples regarding property division, spousal support, inheritance, and survivor benefits.
Overall, while common-law marriage and traditional marriage offer similar legal recognition and benefits, the specific requirements and implications can vary depending on the state and individual circumstances.
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How to prove a common-law marriage
As of July 24, 2019, South Carolina no longer recognizes new common-law marriages. However, couples who entered into a common-law marriage before this date will still be considered married in the state.
To prove a common-law marriage in South Carolina, the following criteria must be met:
- Both partners must be at least 16 years old, not currently married to anyone else, and not closely related by blood.
- Both partners must live together and agree to consider themselves as spouses.
- The couple must hold themselves out to the community as being married. This means behaving in a way that causes family, friends, and the community to conclude that you are married to one another. For example, when purchasing a home, did you do so as joint tenants with rights of survivorship, or as two individuals? Do you tell people you are married? Do you have joint bank accounts? Do you call each other husband and wife?
- The couple must mutually intend to be married. This means that each partner must intend to be married to the other and understand the other's intent.
It's important to note that simply living together does not constitute a common-law marriage, and the length of the relationship does not determine whether a common-law marriage exists. Additionally, marking "married" on a birth certificate when the couple resides in a state that does not recognize common-law marriage is not wrong, but it is also not sufficient evidence of a common-law marriage.
If you need to prove a common-law marriage in South Carolina, you may need to provide clear and convincing evidence, such as joint bank accounts, a lease in both names, or a deed to property you jointly own.
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Rights and issues arising from common-law marriage
Common-law marriage has been abolished in South Carolina. The state's Supreme Court ruled in July 2019 that common-law marriages entered into after July 24, 2019, would not be recognized. However, this ruling does not apply to marriages that were entered into before this date.
Property ownership
If a couple is not considered married, property and debt follow title ownership. For example, if one person owns the house, they get to keep it. However, property acquired during a common-law marriage is considered marital property and is subject to equitable distribution in the event of a divorce.
Child custody
In the event of the death of a parent, the surviving parent becomes the sole custodial parent. Being married strengthens this presumption. If the parents are unmarried, the father must take certain legal steps to have parental rights.
Alimony
Alimony is typically not available to non-married couples who separate. However, it may be required for a common-law married couple who gets a divorce.
Inheritance
Common-law marriages grant inheritance rights, including inheriting a spouse's estate without a will and transferring property tax-free between spouses.
Taxes
Common-law married couples can file joint state/federal tax returns.
Benefits
Common-law marriages grant entitlement to spousal benefits, such as Social Security and pensions based on the other spouse's work history. They also allow for coverage under the spouse's workplace health insurance policy.
Divorce
Common-law marriages require a legal divorce to dissolve them. Divorce cases must first show that the parties were married, which can be more complicated without a marriage license.
Proving common-law marriage
Proving a common-law marriage requires "clear and convincing evidence", which is a higher standard than "beyond a reasonable doubt". Evidence may include demonstrating that both partners intended and agreed to be married, and that they held themselves out as married to the outside world (e.g. by purchasing a home as joint tenants, having joint bank accounts, referring to each other as husband and wife, etc.).
It is important to note that the specific rights and issues arising from common-law marriage may vary depending on the state and the individual circumstances of each case.
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Frequently asked questions
No, as of July 24, 2019, South Carolina no longer recognizes new common-law marriages.
Common-law marriages entered into before this date are still recognized by the state. However, you may need to provide "clear and convincing evidence" of your marriage in the event of divorce or inheritance disputes.
A common-law marriage is a state-recognized marriage without a marriage license or ceremony. In South Carolina, both partners must be at least 16 years old, not currently married, and not closely related by blood. They must live together, agree to consider themselves spouses, and present themselves as married to the community.
Common-law marriages were ended due to the challenges of proving such relationships, especially in divorce and death situations. The cultural shift towards cohabitation and non-marital child-rearing was also a key factor in the Supreme Court's decision.
