Kara Sears
Common-law marriage has existed for centuries in South Carolina. However, on July 24, 2019, South Carolina officially abolished it. The ruling by the South Carolina Supreme Court prevents any new common-law marriages from being established in the state but does not affect existing ones. Couples wishing to marry in South Carolina now require a marriage license. Common-law marriage was a legally recognized union of two people without a marriage certificate. It often became legally relevant when a couple divorced or when one member passed away. While it is no longer an option in South Carolina, there are still quick and cheap methods for couples to marry legally.
| Characteristics | Values |
|---|---|
| Common law marriage in South Carolina | No longer exists as of July 24, 2019 |
| Common law marriage recognition | Only for marriages entered into before July 24, 2019 |
| Marriage license requirement | Yes, a marriage license is now required to be considered legally married |
| Minimum age for marriage | 16 years old |
| Proof of common law marriage | Clear and convincing evidence, such as joint tax returns, using the same surname, etc. |
| Legal recognition | Common law marriages have the same rights and responsibilities as ceremonial marriages |
| Divorce in common law marriage | Can be challenging if one party refuses to acknowledge the marriage |
| Inheritance in common law marriage | May require proof of marriage for survivor benefits |
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What You'll Learn
Common-law marriages no longer recognised in South Carolina
Common-law marriages are no longer recognised in South Carolina. On July 24, 2019, the state officially abolished common-law marriage. The ruling stated that common-law marriage's "foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted".
A common-law marriage refers to couples who consider themselves married but have never executed a proper marriage license. 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 license was burdensome. The state's recognition of marriages without formal documentation was also desirable to legitimise children born out of wedlock.
However, proving a relationship was a common-law marriage has long caused problems for couples and the courts, both in divorce and death situations. The South Carolina Supreme Court's ruling in the case of Stone v. Thompson prevents a new common-law marriage from being established in South Carolina after July 24, 2019.
The ruling does not affect common-law marriages that existed before this date, which are still considered valid. Couples in a common-law marriage before this date have the same legal validity and rights as ceremonial marriages, including the requirement to divorce before marrying someone else, entitlement to spousal benefits, the ability to file joint tax returns, and inheritance rights.
However, for couples who did not enter into a common-law marriage before the cutoff date, there are still cheap and quick methods to be legally married in South Carolina, such as obtaining a marriage license and participating in a simple ceremony.
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Existing common-law marriages still valid
In 2019, South Carolina abolished common-law marriages. The ruling, issued in the case of Stone v. Thompson, prevents new common-law marriages from being established in South Carolina after July 24, 2019.
However, this ruling does not affect common-law marriages that were entered into before that date. These marriages are still considered valid, and the state still views these couples as married. As a result, they can continue to file their state and federal tax returns under the status of "Married, Filing Jointly" or "Married, Filing Separately."
Despite the continued validity of pre-existing common-law marriages, there may be challenges when it comes to proving the existence of such a marriage, particularly in situations of divorce, inheritance, or death. For instance, 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 can be challenging, as simply living together does not constitute a common-law marriage. Rather, various elements must be present, such as mutual assent, where each partner intends to be married to the other and understands the other's intent.
To address these potential challenges, couples in a common-law marriage can proactively document how they'd like to handle situations where they won't have the same privileges as legally married couples. This can include executing powers of attorney or working with an estate planning attorney to establish the nature of the relationship and outline the rights each partner would like the other to have. Additionally, signing an affidavit of common-law marriage can help facilitate meeting the burden of proof.
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Couples must obtain a marriage license to be considered legally married
Common-law marriage has existed for centuries in South Carolina. It was previously recognised by the state due to the difficulties in transportation to the courthouse to obtain a marriage license, as well as the cost of a marriage license being burdensome. However, as of July 24, 2019, common-law marriage has been abolished in South Carolina. This means that couples must now obtain a marriage license to be considered legally married.
The process of obtaining a marriage license in South Carolina requires both parties to appear together at the office of a South Carolina county probate judge and file a written application. This application asks for the full name, social security number or alien identification number, age, and place of residence of each person. In addition, legal proof of identification and social security number must be provided. The general age requirement to obtain a marriage license in South Carolina is 18 years of age. However, under certain circumstances, a 16 or 17-year-old may obtain a marriage license with parental consent and other additional requirements.
It is important to note that a marriage license obtained in South Carolina can only be used within the state. The length of validity of a marriage license varies from county to county, with some expiring after six months and others not expiring. The fee for a marriage license also varies depending on the county. After the marriage ceremony, the officiant will complete the certificate and provide a copy of the marriage license. All three copies must be signed with original signatures and delivered to the Probate Court within thirty days of the ceremony. If not returned, there will be no legal record of the marriage.
While common-law marriage is no longer recognised in South Carolina for new relationships, it is important to note that the ruling did not affect pre-existing common-law marriages entered into before July 24, 2019. These marriages are still considered valid. However, it is advisable for couples in a common-law marriage to proactively document how they would like to handle situations where they cannot take advantage of the privileges granted to married couples. This can include executing a health care power of attorney or a financial power of attorney to allow each partner to make decisions on behalf of the other in the event of incapacitation.
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The challenges of proving a common-law marriage
Common-law marriage is no longer recognised in South Carolina as of 24 July 2019. However, this ruling does not affect common-law marriages that were entered into before that date.
In general, proving a common-law marriage can be challenging. The exact evidence required to prove a common-law marriage varies depending on the state. However, some common challenges that individuals may face when attempting to prove a common-law marriage include:
- Providing substantial evidence to demonstrate marital status: This can include testimonies from friends and family, shared financial records, and other relevant documents that show a commitment to each other.
- Meeting state-specific requirements: Each state has unique requirements for proving a common-law marriage. For example, in Texas, there must be evidence of a present, immediate, and permanent intent to have a marital relationship.
- Proving mutual assent: In some states, such as South Carolina, mutual assent is a key element in proving a common-law marriage. Each partner must intend to be married to the other, and each must understand the other's intent.
- Holding yourselves out as married: This element can be highly fact-specific and may involve examining the couple's actions and conduct to determine if they represented themselves as married to others.
- Discrimination faced by same-sex couples: Same-sex couples may have a harder time gathering evidence to prove their relationship qualifies as a common-law marriage due to previous limitations on their legal rights.
Overall, while common-law marriage can offer various benefits, it is important to be aware of the potential challenges that may arise when attempting to prove this type of marriage.
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The benefits of consulting a lawyer for common-law marriage status
Common law marriage is a legally recognised marital contract that arises without the formal requirements of a license, witnesses, and an officiated ceremony. Couples in a common-law marriage are considered legally married and are granted the same legal benefits as those who are formally married. These benefits include social security, insurance, pension, and tax exemptions.
Despite its legal recognition, proving a common-law marriage can be challenging due to the lack of formal registration. Couples must provide evidence of their intent to be married and their public representation as a married couple. This is where consulting a lawyer can be beneficial.
Benefits of consulting a lawyer for common-law marriage status:
- Legal advice and protection of interests: Lawyers can help couples understand the varying state-specific common-law marriage requirements and protect their interests with prenuptial agreements, estate plans, or honest advice.
- Proving marital status: Lawyers can assist couples in gathering and presenting the necessary evidence, such as tax and bank information, joint financial accounts, shared leases, and insurance policies, to establish their marital status.
- Understanding legal complexities: Common-law marriages can become complex, especially when couples move between states with differing laws. Lawyers can provide guidance on applicable laws and precedents, helping couples navigate legal complexities and disputes regarding the marriage's validity, property, and custody.
- Creating legal documents: Attorneys can draft estate plans, trusts, wills, and advanced directives that establish inheritance rights, ensuring that couples' interests are protected in the event of separation or death.
- Peace of mind: Consulting a lawyer can provide peace of mind and security for couples by ensuring they understand their rights, benefits, and protections under common-law marriage.
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Frequently asked questions
No, common law marriage was abolished in South Carolina on July 24, 2019.
Common law marriages that existed before this date are still valid, but it is no longer an option for couples going forward.
You will need to obtain a marriage license to be considered legally married in South Carolina.
