( 300+)Common law marriage is a holdover from the days when couples couldn’t easily find a justice of the peace to marry them.
Instead, they simply started living together and held themselves out as married to the public. For centuries, this act was sufficient to form a valid marriage. Things have changed. Today, it is easy to get a marriage license and find someone to perform the ceremony. Does South Carolina have common law marriage anymore? The short answer is “no,” though as our Greenville family law attorney explains, the fuller answer is more complicated.
The State of Common Law Marriage in South Carolina
South Carolina’s law on common law marriage is in flux. In 2019, the state Supreme Court abolished common law marriage.
The case was Stone v. Thompson. The court reviewed the justifications for common law marriage in the past, principally the fact that our country was once a frontier society, which made it difficult to find ministers or officials who could perform a marriage ceremony.
Furthermore, society used to look down on illegitimate children. Recognizing a cohabiting couple as “married” helped legitimize the children that those men and women had.
By the 21st Century, everything had changed. It is no longer difficult to find an official to marry you.
And being the child of unwed parents is no longer stigmatized to the same extent. For these reasons, the South Carolina Supreme Court abolished common law marriage. The justifications had disappeared, so couples who want to get married must now obtain a marriage license.
Note that the ruling applied only prospectively, meaning going forward. If you have formed a valid common law marriage before July 24, 2019, then the state will still recognize it. That’s good news if you have not gotten a marriage license but have formed a common law marriage.
However, if you tried to form a common law marriage after this date, then the state will not recognize it. Instead, anyone hoping to be married will need to obtain a marriage license.
Proving Common Law Marriage in South Carolina
If you entered a common law marriage before July 24, 2019, then you can still enjoy the benefits of marriage. However, you will need to prove that you entered a valid common law marriage. That requires evidence. Saying, “I’m married” is some evidence, but not enough on its own.
The South Carolina Supreme Court has refined the test used to determine whether a couple has formed a marriage. The key element is mutual assent: each party intended to be married to the other and understood their spouse’s intent. That’s the essential element of a contract.
The Supreme Court also identified some evidence that helps prove mutual assent:
- Tax filings, e.g., whether you filed joint tax returns as a married couple
- Any other document filed under penalty of perjury in which you identified yourself as married
- Joint checking accounts
South Carolina requires “clear and convincing” evidence to prove mutual assent. That’s a relatively high standard. The courts may continue to look at other evidence, such as whether you held yourself out as married to the public. For example, you might have told people your partner was your “husband” even though you never walked down the aisle. Living in a home together for years is also some evidence. However, the Supreme Court in Stone v. Thompson eliminated any presumptions in favor of common law marriage.
A court will review any evidence which is relevant. Continued habitation and the filing of joint tax returns is powerful proof that a couple intended to be married. However, each case rests on its own facts.
Critically, you cannot have a disability that prevents you from entering a common law marriage. As an example, you could not be married to someone else at the time you mutually agreed to be married. So, common law marriage is not a way to get around these disabilities.
Consequences of a Common Law Marriage
If you formed a valid common law marriage, then certain consequences follow. For example, you will need to file for divorce to end the marriage. Typically, that means living separate and apart for at least a year. There is no common law divorce; instead, you must go through the formal divorce process.
A spouse might also seek alimony after the dissolution of a marriage. The property a couple obtained during their common law marriage will also need to be divided.
South Carolina follows the equitable distribution model for marital assets. Each spouse can usually leave with their separate property, but any property obtained while married is usually marital and must be divided. As a result, many of the assets you purchased or wages you earned in a common law marriage could end up going to your spouse.
The presence of a common law marriage can matter a great deal when a couple separates. If there was no marriage, then each person would typically leave with the assets they purchased themselves, as well as the money they individually earned. However, assets get divided if you were married.
Is South Carolina a Common Law Marriage State?
Not anymore. The state has abolished common law marriage. However, the law applied only prospectively, meaning you could not form a common law marriage in South Carolina after July 24, 2019.
If you formed one before then, it is legally valid, provided you can prove its existence. Reach out to Elliott Frazier — Family, Personal Injury, & Car Accident Attorneys, LLC. Our firm can help gather evidence to prove your common law marriage. We are most interested in any financial entanglements, such as joint bank accounts, joint tax filings, or mortgages. Other relevant evidence includes whether you told other people you were married.
Schedule a Consultation with a Greenville Family Law Attorney
Whether you are married can matter significantly if you decide to split from your romantic partner.
Elliott Frazier Family, Personal Injury & Car Accident Attorneys, LLC can analyze whether you formed a common law marriage when you moved in together or at any time while in a romantic relationship. Contact our firm to schedule your confidential consultation.
