Keith Mack
Common-law marriage in South Carolina is a hot topic. Before July 24, 2019, South Carolina recognized common-law marriages as long as certain requirements were met. However, after this date, common-law marriages can no longer be formed in the state. Common-law marriage is a state-recognized marriage where couples choose not to purchase a marriage license or have a ceremony performed by a legally recognized officiant. Couples in a common-law marriage have the same rights and responsibilities as couples in a ceremonial marriage, including the right to spousal support and alimony, and the right to seek the equitable division of marital property. To establish a common-law marriage, there must be proof of reputation and cohabitation, and both parties must agree that they are married.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Recognized before 24 July 2019 |
| Legal requirements | No requirement for a marriage license or ceremony |
| Proof of marriage | Cohabitation, reputation for being married, and present intent to be married |
| Rights and responsibilities | Same as couples married ceremonially, including spousal support, alimony, and division of marital property |
| Termination of marriage | Requires a divorce, cannot be terminated by simply stopping cohabitation |
| Custody rights | Husband has full custody rights to children born of the marriage |
| Property ownership | Assets acquired during the marriage may be considered joint |
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What You'll Learn
Common-law marriage requirements
Prior to this change, South Carolina was one of the few states that allowed common-law marriages. The state's statutes did not require much for a couple to consider themselves married. A common-law marriage is a state-recognized marriage where the couple chooses not to purchase a marriage license or have a ceremony performed by a legally recognized officiant. It is important to note that simply living together or having a child together does not create a common-law marriage. The key requirement is the "present intent" to be married, meaning the couple intends to be married now rather than in the future, and there are no legal impediments to their marriage.
To establish a common-law marriage, proof of reputation and cohabitation is required. The couple must have lived together and held themselves out as husband and wife in the community. This can be proven through witnesses who know how the couple described their relationship or through records. If a common-law marriage is established, the couple enjoys the same rights and responsibilities as ceremonially married couples, including the right to spousal support, alimony, and the equitable division of marital property.
For couples who entered into a common-law marriage before July 24, 2019, it is important to understand their rights and how their marriage may be affected by the recent changes. They may need to provide clear and convincing evidence of their marriage if it is ever disputed. To prevent potential disputes, some couples may choose to obtain a marriage license or participate in a simple ceremony going forward.
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Rights and responsibilities
In South Carolina, common-law marriages are recognised if they were established before 24 July 2019. After this date, couples are required to obtain a marriage license to be considered legally married.
Rights
If a common-law marriage exists, the couple enjoys the same rights as a couple married in a traditional ceremony. They have the right to:
- Seek spousal support and alimony
- Seek the equitable division of marital property
- File state and federal tax returns under the status of "Married, Filing Jointly" or "Married, Filing Separately"
- Have children born of the marriage legally presumed to be children of the husband, who has full custody rights, unless the family court orders otherwise
Responsibilities
The responsibilities of a common-law marriage are also similar to those of a traditional marriage. These include:
- Obtaining a divorce to terminate the relationship
- Going through the formal divorce process to end the marriage, which includes dividing marital property, alimony, child support, and child custody
- Providing clear and convincing evidence of the marriage, especially if it is questioned or if the couple moves to a state that doesn't recognise common-law marriage
- Understanding that if one party denies the existence of a common-law marriage, the burden of proof falls on the other party
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Proof and evidence
Since 24 July 2019, no one in South Carolina has been able to enter into a valid common-law marriage. However, the state still recognises common-law marriages that were established before this date.
To prove a common-law marriage in South Carolina, a couple must show "clear and convincing evidence" that they intended to act as spouses. This is a higher standard than "beyond a reasonable doubt".
A court may consider the following as proof and evidence of a common-law marriage:
- Income tax returns
- Health care forms
- Beneficiary designations
- Birthday and Valentine's cards
- Christmas cards
- Hotel check-ins
- Evidence of how the couple presented their relationship to others
Other factors that may be considered include whether the couple lived together, owned property together, or had children together. However, simply cohabitating, having a child together, or owning property together does not create a common-law marriage.
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.
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Common misconceptions
There are several misconceptions about common-law marriage in South Carolina. Firstly, it is important to note that as of July 24, 2019, South Carolina no longer recognizes new common-law marriages. This means that any relationships formed after this date cannot be considered common-law marriages, regardless of how long the couple has lived together or their intentions to be married.
One common misconception is that living together for a certain period, such as seven years, automatically creates a common-law marriage. This is not true. While cohabitation is a requirement for a common-law marriage, the length of time is not a determining factor. Instead, the key factor is the "'present intent' to be married", meaning that the couple intends to be married now rather than in the future. This intention must be demonstrated by acting like a married couple, such as living together, treating each other as spouses, and holding themselves out as a married couple in the community.
Another misconception is that common-law marriage is a less formal type of marriage or a way to avoid the legal requirements of marriage. In reality, common-law marriage is a state-recognized marriage agreement that provides the same rights and responsibilities as a ceremonial marriage. Couples who are married at common law must still obtain a divorce to terminate their relationship and are subject to the same laws regarding spousal support, alimony, and the division of marital property.
Furthermore, some people mistakenly believe that common-law marriage is easier to establish or fake for benefits or citizenship purposes. However, proving a common-law marriage can be factually complex and requires clear and convincing evidence. The burden of proof falls on the person claiming the existence of the common-law marriage, and this proof must meet specific legal standards and requirements.
Finally, there may be confusion about the impact of the recent changes in South Carolina law on pre-existing common-law marriages. While new common-law marriages are no longer recognized, relationships formed before July 24, 2019, may still be considered valid common-law marriages. However, these couples may face challenges in proving their marriage status and may need to provide strong evidence to establish their rights and benefits.
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Recent changes to the law
South Carolina's Supreme Court ruled in 2019 that common-law marriage would no longer be possible in the state. This ruling, issued in a case entitled Stone v. Thompson, came into effect on July 24, 2019, and prevents any new common-law marriages from being established in South Carolina.
The ruling states that couples may no longer enter into a valid marriage in South Carolina without a license. It does not, however, apply retroactively to common-law marriages that were recognized before 2019. Couples who entered into a common-law marriage before this date will still be considered legally married by the state and can continue to file their state and federal tax returns as such.
The Supreme Court's decision also standardized the proof required to establish a common-law marriage, both during life and after death. While there is a misconception that living together for a certain length of time, often believed to be seven years, constitutes a common-law marriage, this is not true in South Carolina or any other state. Instead, the court looks at the circumstances surrounding the relationship and requires clear and convincing evidence to prove the intention to be married.
The abolition of common-law marriage in South Carolina has caused confusion, especially regarding the rights of couples in pre-existing common-law marriages. These rights include spousal benefits, inheritance, alimony, and child custody. It is recommended that those in a common-law marriage before July 24, 2019, seek legal advice to understand how the recent changes may affect them.
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Frequently asked questions
A common-law marriage is a state-recognized marriage where the couple chooses not to purchase a marriage license or have a ceremony performed by a legally recognized officiant.
The couple must show their agreement to be married by living together, treating each other as spouses, and holding themselves out in the community as a married couple. There must be a "present intent" to be married, meaning the couple intends to be married now rather than in the future, and there must be no legal impediment to the marriage.
As of July 24, 2019, South Carolina no longer recognizes new common-law marriages. However, common-law marriages established before this date are still valid and subject to the laws governing these unions.
Couples in a common-law marriage have the same rights and responsibilities as those in a ceremonial marriage. They can file taxes jointly, seek spousal support and alimony, and have the right to equitable division of marital property. They must obtain a divorce to terminate their marriage legally.
