Keith Mack
How to File for Common Law Marriage in South Carolina
Common-law marriage has existed in South Carolina since 1911, but the state Supreme Court ruled in 2019 that no new common-law marriages could be formed after July 24, 2019. This ruling was made in the case of Stone v. Thompson, which noted that remaining unmarried was becoming increasingly common and that people had the right to remain unmarried. For couples who entered into a common-law marriage before this date, their marriage is still valid and they have the same legal rights and obligations as any married couple. This includes the requirement to divorce/separate before marrying someone else, entitlement to spousal benefits, the ability to file joint tax returns, and inheritance rights. If you are in a common-law marriage and need help understanding your rights, it is recommended that you contact a family lawyer for assistance.
| Characteristics | Values |
|---|---|
| Common-law marriage recognition | Recognised before 24 July 2019 |
| Common-law marriage formation | No longer allowed after 24 July 2019 |
| Recognition of common-law marriages formed before 24 July 2019 | Yes, if certain criteria are met |
| Criteria examples | Lived together and referred to each other as husband and wife |
| Evidence of common-law marriage | Testimonies from friends and family, jointly owned bank accounts, life insurance policies, birth certificates, tax statements |
| Legal issues | Establishing and holding the relationship as a common-law marriage |
| Legal advice | Consult a family lawyer |
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What You'll Learn
Common-law marriages in SC no longer recognised
Common-Law Marriages in South Carolina No Longer Recognised
As of July 24, 2019, common-law marriages in South Carolina are no longer recognised by the state. The South Carolina Supreme Court abolished this type of marriage in the case of Stone v. Thompson, ruling that "parties may no longer enter into a valid marriage in South Carolina without a license". This decision was made to simplify the legal process and in recognition of shifting cultural norms, as remaining unmarried has become increasingly common.
Prior to this ruling, South Carolina was one of only eight states that allowed common-law marriages. Common-law marriages date back to a time when transportation was a challenge, and the cost of a marriage license could be burdensome. These marriages were often chosen by couples who wanted to be recognised as married without the formality of a license or ceremony. However, proving these marriages caused problems for the courts and the couples involved, especially in divorce and death situations.
Now, couples in South Carolina must obtain a marriage license to be considered legally married. This license comes with an additional $20 fee, which is remitted to the State Treasurer and credited to the Domestic Violence Fund. While new common-law marriages are no longer possible, the Supreme Court's decision does not affect marriages that were entered into before the cutoff date of July 24, 2019. These marriages are still considered valid, and couples can continue to file their tax returns as "Married, Filing Jointly" or "Married, Filing Separately".
For couples who wish to retain the privileges granted to married couples without obtaining a marriage license, there are other options to consider. Executing a health care power of attorney or a financial power of attorney can allow partners to make decisions on each other's behalf if one becomes incapacitated. Additionally, an estate planning lawyer can help draft documents to establish the nature of the relationship and outline the rights each partner would like the other to have.
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What constitutes a common-law marriage
Common-law marriage in South Carolina is a thing of the past. As of July 24, 2019, the state's Supreme Court ruled that no new common-law marriages could be formed. This ruling came in the case of Stone v. Thompson, where the Court noted that remaining unmarried was becoming more common and that people had the right to remain unmarried if they so chose.
So, what constituted a common-law marriage in South Carolina before this ruling? Essentially, it was a legal status that allowed couples to be considered married without a traditional ceremony or official license. Common-law marriages were recognised by the state as early as 1911, when the state Supreme Court first acknowledged their validity in Johnson v. Johnson.
For a common-law marriage to be valid, both parties needed to intend to be married and recognise that their partner intended the same. In other words, one spouse couldn't claim they were married while the other said they were just cohabitating. There needed to be "clear and convincing evidence" of the couple's intention to act as spouses. This could include jointly owned bank accounts, life insurance policies with the partner as beneficiary, birth certificates listing both partners as parents, and tax statements filed as married.
Couples in a common-law marriage enjoyed the same legal rights and obligations as couples in a traditionally licensed marriage. This included the requirement to divorce/separate before marrying someone else, entitlement to spousal benefits, the ability to file joint tax returns, coverage under the spouse's health insurance, inheritance rights, and spousal support obligations/eligibility for alimony if the couple separated.
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Rights of those in a common-law marriage
In 2019, the South Carolina Supreme Court abolished the practice of forming new common-law marriages in the state. However, couples who entered into a common-law marriage before July 24, 2019, are still considered married and enjoy the same legal rights and responsibilities as couples in a traditionally licensed marriage.
- The requirement to divorce/separate before marrying someone else.
- 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, 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.
It is important to note that each state has different requirements for proving a common-law marriage. If you have questions about your rights in a common-law marriage or are unsure whether your relationship qualifies, it is recommended to consult a family lawyer or an estate planning attorney.
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How to prove a common-law marriage
In 2019, the South Carolina Supreme Court ended the practice of forming new common-law marriages. However, common-law marriages established before July 24, 2019, or July 25, 2019, according to some sources, are still valid.
To prove a common-law marriage in South Carolina, there must be "clear and convincing evidence" of the couple's intent to be married. This intent can be demonstrated through various means, including:
- Jointly owned bank accounts or properties
- Life insurance policies where your partner is the named beneficiary
- Filing joint tax returns as a married couple
- Using the same surnames
- Listing the other on employment documents as one's spouse
- Naming the other as a spouse on health insurance documents
- Having and raising children together
The reputation aspect of proving a common-law marriage can also be accomplished through witnesses who know the couple and understand how they described their relationship.
If you have concerns about your rights in a relationship or need guidance on establishing a common-law marriage, it is recommended to consult a family law attorney or an estate planning lawyer.
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Seeking legal advice for a common-law marriage
In 2019, the South Carolina Supreme Court ruled that no new common-law marriages could be formed in the state after July 24, 2019. This ruling came about in the case of Stone v. Thompson, where the Court noted that remaining unmarried was becoming increasingly common, and that there was a right to remain unmarried. This shift has caused confusion for many couples, especially those who believe they had a common-law marriage before this cutoff date.
If you think you had a common-law marriage before July 24, 2019, it is important to understand your rights and the implications of this recent change. Common-law marriages that existed before this date still hold the same legal validity and rights as ceremonial marriages licensed by the state. This includes the requirement to divorce/separate before marrying someone else, entitlement to spousal benefits, the ability to file joint tax returns, inheritance rights, and spousal support obligations/eligibility for alimony payments if the couple separates.
To prove the existence of a common-law marriage, "clear and convincing evidence" must be provided. This could include testimonies from friends or family stating that the couple presented themselves as married, jointly owned bank accounts or properties, life insurance policies with the partner as the beneficiary, birth certificates listing both partners as parents, and tax statements where the couple filed as married.
If you are unsure about your marital status or have a dispute involving property or spousal rights, it is recommended to seek legal advice from a family lawyer or a specialist in estate planning and probate. These legal professionals can guide you through the complex legal questions and processes surrounding common-law marriages and help you understand your rights and move forward effectively.
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Frequently asked questions
No, common-law marriages were abolished in South Carolina after July 24, 2019.
Your marriage is still considered valid and holds the same legal rights as a traditional marriage. However, it's a good idea to consult a lawyer to understand your rights.
The couple's intent is crucial. Each partner must intend to be married to one another and understand the other's intent. Other factors include how the couple views the relationship and how they act on that perception.
Common-law marriages are considered just as valid as traditional marriages. They grant the same legal rights, including spousal benefits, the ability to file joint tax returns, health insurance coverage, inheritance rights, and spousal support obligations in the event of a divorce.
You don't need to file for a common-law marriage. Instead, this type of marriage is established based on how the couple views and presents their relationship. Proof can come from how they introduce themselves, file their taxes, and interact with each other.
