Gavin Howe
Common-law marriage, a legal concept that dates back centuries, has been abolished in South Carolina for marriages formed after July 24, 2019. This change has caused confusion about the status of common-law marriages formed before this date and what constitutes a valid common-law marriage. Before the abolition, South Carolina was one of only eight states that permitted new common-law marriages, recognizing them as valid as long as certain requirements were met. These included both partners being at least 16 years old, not currently married, not closely related by blood, living together, and agreeing to consider themselves spouses. Now, couples in South Carolina must obtain a marriage license and undergo a ceremony to be considered legally married.
| Characteristics | Values |
|---|---|
| Common law marriage recognized? | Yes, but only if entered into before July 24, 2019 |
| Requirements | 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 |
| Proof | Evidence includes witnesses, documents, income tax returns, health care forms, beneficiary designations, cards, and how they checked into hotels and events |
| Misconceptions | It's not legal after living together for a certain period, simply cohabitating doesn't create a legal marriage, it's recognized in every state, and there doesn't need to be an agreement to be married |
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What You'll Learn
Common-law marriage requirements
Common-law marriage in South Carolina has a rich and long history. However, 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 this date can no longer establish a valid common-law marriage in South Carolina.
Prior to this ruling, a common-law marriage in South Carolina was a state-recognized marriage agreement where both parties needed to agree that they were spouses, without purchasing a marriage license or having a ceremony performed by a legally recognized officiant. 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 and agree to consider themselves as spouses.
Proving a common-law marriage could be challenging, and often involved providing evidence of intent to be married, such as joint bank accounts, referring to each other as husband and wife, or purchasing a home together as joint tenants. Documents such as income tax returns, health care forms, and beneficiary designations could also be used as proof.
While South Carolina no longer allows new common-law marriages, couples who believe they formed a common-law marriage before the 2019 cutoff can still try to prove it if a dispute arises. It is important to note that meeting the requirements for common-law marriage does not automatically grant common-law marriage status; it is ultimately a recognition by the state.
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Couples must now obtain a marriage license
Common-law marriage in South Carolina has a rich and long history. It arose when transportation to courthouses was difficult and the cost of a marriage license could be burdensome. However, as of July 24, 2019, South Carolina abolished all new common-law marriages in the state. 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 South Carolina and must obtain a marriage license to be considered legally married.
The ruling, issued in the case of Stone v. Thompson, prevents new common-law marriages from being established. However, this ruling does not affect common-law marriages that were entered into prior to that date. Couples who believe they formed a common-law marriage before the 2019 cutoff can still try to prove it if a dispute arises. For example, if one party denies the existence of a common-law marriage, the burden of proof falls on the other party to demonstrate that the requirements for a common-law marriage were met. This proof typically consists of providing clear and convincing evidence, which may include documents such as income tax returns, health care forms, and beneficiary designations.
It is important to note that simply living together, having a child together, or cohabitating for a certain period of time does not create a common-law marriage. To establish a common-law marriage, there must be an intent by both parties to be married and they must hold themselves out as married to the outside world, such as by purchasing a home together as husband and wife or having joint bank accounts.
Couples who wish to be considered legally married in South Carolina must now obtain a marriage license. This involves meeting certain requirements, such as both partners being at least 16 years old, not currently married to anyone else, and not closely related by blood. They must also consider the legal implications of marriage, such as potential property ownership disputes and other concerns. To proactively address these issues, couples can seek guidance from an estate planning lawyer or execute powers of attorney to allow their partner to make decisions on their behalf if they become incapacitated.
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Common-law marriage history in South Carolina
Common-law marriage has existed for centuries in South Carolina. It arose when transportation to the courthouse to obtain a marriage license was difficult and the cost of a marriage license could be burdensome. The State's recognition of marriages without formal documentation was particularly desirable to legitimize children born out of wedlock.
In the 1877 case of Meister v. Moore, the U.S. Supreme Court held that a non-ceremonial marriage was a valid, enforceable marriage unless a state statute forbade it. Common-law marriages in the U.S. were a matter of convenience because it was historically challenging to locate someone qualified to perform a marriage ceremony, and there was a stigma associated with not being married and having children.
South Carolina had recognized common-law marriages since 1911, when the state Supreme Court first acknowledged their validity in Johnson v. Johnson. Before the July 2019 ruling, South Carolina was one of only eight states that still permitted new common-law marriages. However, the practice became less common in recent decades.
In 2019, the South Carolina Supreme Court abolished all new common-law marriages in the state in the case of Stone v. Thompson. This ruling prevents new common-law marriages from being established in South Carolina after July 24, 2019. However, it does not affect common-law marriages entered into before that date. Couples in a common-law marriage before this date are advised to consult a family lawyer to understand their rights.
To prove a common-law marriage, couples must provide "clear and convincing evidence," which is a higher standard than "beyond a reasonable doubt." This proof can include documents such as income tax returns, health care forms, beneficiary designations, cards, and how they checked into hotels and events. Witness statements attesting that the couple presented themselves as married to family, friends, and the general public can also be considered.
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Recognition of common-law marriages in other states
In the United States, each state has its own unique requirements for establishing a common-law marriage. While some states continue to allow and recognize common-law marriages, the majority have abolished this practice. South Carolina, for instance, no longer recognizes new common-law marriages as of July 24, 2019, following a ruling by the South Carolina Supreme Court in the case of Stone v. Thompson. This ruling, however, does not affect common-law marriages that were entered into prior to that date, which are still considered valid.
The recognition of common-law marriages varies across different states. Some states allow and recognize current common-law marriages, while others have abolished this practice entirely. It's important to note that each state has its own specific requirements for establishing a common-law marriage, and it's essential to be aware of these requirements before assuming a common-law marriage is valid in a particular state.
For couples who have established a common-law marriage in a state that recognizes it, relocating to another state that does not recognize such marriages can present legal challenges. In these cases, providing evidence of the marriage to the new state may be necessary. The type and amount of evidence required can vary depending on the state, and it is always advisable to seek legal guidance when navigating such situations.
While the specific requirements differ across states, there are some general criteria that are often considered in recognizing a common-law marriage. These typically include factors such as the age of the partners, their marital status, and their relationship to each other. Additionally, living together and holding themselves out as spouses in public are also important aspects of a common-law marriage.
To summarize, the recognition of common-law marriages varies across different states, with some allowing and recognizing them while others have abolished the practice. For individuals in a common-law marriage, relocating to another state may require providing evidence of their marriage. It is important to be aware of the specific requirements and legal landscape of the state in question to ensure that the rights and interests of the couple are protected.
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How to prove a common-law marriage
In South Carolina, certain criteria must be met for a common-law marriage to be recognized. Firstly, 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 and agree to consider themselves as spouses.
However, meeting these requirements does not automatically grant common-law marriage status; it is a recognition by the state. Many states allow current common-law marriages or recognize those from before state legislature changes.
To prove a common-law marriage, the following criteria are required:
- Intent by both parties to be married: Both parties need to intend to be married to each other and recognize that their partner intends to be married to them.
- Holding yourself out as married: This could include purchasing a home as joint tenants with right of survivorship, telling people you are married, having joint bank accounts, or calling each other husband and wife.
Documents can also provide proof of a common-law marriage. This could include income tax returns, health care forms, beneficiary designations, cards exchanged, and how the couple checked into hotels and events. Additionally, marking yourself as married on a birth certificate could be evidence of a common-law marriage, but only if the couple was already living in South Carolina and acting as husband and wife prior to the birth.
It is important to note that the process of proving a common-law marriage can be challenging, especially if one spouse has passed away. A surviving spouse may need to bring a lawsuit in probate court to establish the marriage, which can be a lengthy and costly process.
If you are considering a common-law marriage in South Carolina, it is recommended to consult with a family law attorney or an estate planning lawyer to guide you through the legal questions and processes and help establish the nature of your relationship.
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Frequently asked questions
Common-law marriage 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.
South Carolina abolished common-law marriages in 2019. However, common-law marriages that existed before July 24, 2019, are still recognized.
Both partners must be at least 16 years old, not currently married to anyone else, not closely related by blood, living together, and agreeing to consider themselves as spouses.
Common-law marriage allows couples to be considered married and gain the benefits of a legal marriage, such as alimony, child custody, and asset distribution in the case of a divorce.
