Common Law Marriage in South Carolina

Learn about common law marriage in South Carolina and how it affects divorce.

By | Updated by Joseph Pandolfi, Retired Judge

What Is Common Law Marriage?

Common law marriage is a legal concept that applies to couples who are in a relationship that has the appearance of a marriage, but hasn't been formally sanctioned by the state (such as by the issuance of a marriage certificate). A valid common law marriage typically confers both the benefits and obligations of a formal marriage.

Whether a common law marriage exists depends on a number of factors. First and foremost, a state has to acknowledge the legitimacy of common law marriages. It if does, then the validity of the marriage will hinge in large part on how the couple view the relationship, and how they act on that perception.

Common Law Marriage in South Carolina

By a ruling of the South Carolina Supreme Court, the state no longer recognizes common law marriage as of July 24, 2019. (Stone v. Thompson, 426 S.C. 291 (2019).) But the court decision makes it clear that its ruling is prospective only, meaning the courts will still recognize common law marriages entered into before that date.

After July 24, 2019, South Carolina marriage laws require that you obtain a marriage license to be considered legally married. (S. C. Code Ann. § 20-1-210.) Additionally, you can't get married if you're under the age of 16. (S. C. Code Ann. § 20-1-100.)

South Carolina Common Law Marriage Requirements

There are a number of elements to a valid common law marriage in South Carolina. The couple's intent is crucial. In fact, under the Stone case, mutual assent is the key element. Each partner must intend to be married to the other, and each must understand the other's intent.

As with traditional ceremonial marriages, the parties to a common law marriage must meet certain other standards. For example:

  • they must be of sufficient age to marry (at least 16)
  • they can't be closely related to each other, such that the marriage would constitute incest
  • they can't already be married to someone else (bigamy)
  • they must be mentally competent, meaning not suffering from mental illness or under the influence of drugs or alcohol to the extent that it would impair their ability to understand what they were doing
  • they must live together, and
  • they must hold themselves out as being married.

The last two items on the list deserve special mention. There's a common misconception that the couple have to live together for a certain period of time. That's not the case; there's no minimum period. Likewise, the fact that you live together doesn't in and of itself constitute a common law marriage. The other elements must be present.

As to holding yourselves out to the public, this means that you have to behave in a way that causes family, friends, and the community to conclude that you're married to one another.

How Do You Prove a Common Law Marriage in South Carolina?

Whether it involves divorce or inheritance, there will likely come a time when you'll have to prove that you were in a viable common law marriage. Let's say your relationship is failing and you want a divorce, but your partner refuses to acknowledge that a common law marriage exists. It's up to you to persuade a judge otherwise. And, under the Stone case, you'll have to do it by "clear and convincing" evidence. This burden of proof is a middle ground between "preponderance of the evidence" and "beyond a reasonable doubt". In effect, it means that the evidence has to be highly probable, not simply more believable than not.

The same applies to situations where a spouse dies without a will. You'll have to prove a common law marriage existed for inheritance purposes and other potential survivor benefits, such as money payable under your spouse's pension. But note that there's a time factor here. If—within a certain period of time after the partner died—a court hasn't ruled that a common law marriage existed, you could be out of luck to collect death benefits. (S. C. Code Ann. § 62-2-802 (b)(4).) So it's advisable that you contact an attorney as soon as possible.

Of the list of requirements for a common law marriage, the most difficult to prove may be the last one—holding yourselves out as married. That's because this element is highly fact-specific. There are steps you can take to facilitate meeting your burden of proof. Some of these are:

  • opening up a joint bank account
  • using the term "spouse" when referring to each other in public
  • wearing wedding rings
  • using the same last name
  • sharing expenses and household duties, and
  • filing joint tax returns.

You can also sign an affidavit of common law marriage. This is a notarized statement in which you affirm your agreement to have your relationship considered a common law marriage. You'll also state some of the facts that would serve to prove the marriage's existence, such as noted in the list above. You might also include copies of documents to back up your claim, such as joint bank accounts, a lease in both names, or a deed to property you jointly own.

What Is the Legal Effect of Common Law Marriage?

Once you prove the existence of a common law marriage in South Carolina, it's just as valid as a traditional ceremonial marriage in which the state issued a license. The only way a legal common law marriage can end is by the death of one of the spouses, or divorce.

If you're in a common law marriage, and you want to end your relationship, you'll have to go through the formal divorce process. That means that all of the divorce laws imposing responsibilities and allocating rights around dividing marital property, alimony, child support, and child custody, will apply to you and your common law spouse.

Also, be aware that children born to parents in a valid common law marriage are considered legitimate.

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