All About Common Law Marriage in South Carolina

When Is a Marriage a Common Law Marriage?

Common law marriage is a unique institution in the United States. Unlike formal marriages that usually involve a ceremonial component or filing of licenses, common law marriage is simply based on the agreement of the parties to be married. This type of marriage may involve the cohabitation of a man and woman as early as 20 years ago in South Carolina. The general idea was that once the parties agreed they were married, the law would also find them married. There was no ceremonial component or legal process that needed to follow.
However, in 2019, Governor Henry McMaster signed H3600 into Law. This finding eliminated the availability of common law marriage to all couples that cohabitate after April 20, 2019 . The ruling further expired all common law marriages for new couples who previously qualified as a common law marriage. So for example, a couple who had met the previous requirements of cohabitating for the requisite period and held themselves out publicly as being married would no longer qualify as common law married. However, there are still some notable exceptions to finding a couple married by common law. These include:
In essence, it was more difficult to get out of a common law marriage than it was to be joined in one. However, the new law passed offered a much more clear cut answer when it came to marriage of the parties in South Carolina. A ceremonial marriage involved a set of requirements that needed to be followed (i.e. license and ceremony), but now the list is very clear in proving a common law marriage.

Common Law Marriage Explained in South Carolina

The last common law marriage in South Carolina was in, of all places, Beaufort, South Carolina. In 2019, the South Carolina Supreme Court held that the last case in which the court would recognize a common law marriage occurred back in 2019. Halpern v. Halpern, 843 S.E.2d 112 (2019). The court’s reasoning is that the General Assembly has provided a very clear, unambiguous, and comprehensive substitute for common law marriage: the provisions of the Uniform Marriage Act, which … covers the field of domestic relations in South Carolina. Id. at 122-123. The court also held that the act is free from constitutional infirmity and that it does not infringe on the rights of parties to enter into a common law marriage, but rather, establishes the only means through which such a relationship can be legally recognized going forward. Id.at 125. The court further held that, under established doctrines of statutory interpretation, the General Assembly’s failure to specifically repeal common law marriage and the original Marriage Act did not sanction common law marriage. Id. at 127-29. The court couched the issue in terms of changing times, affirming that domestic relations have evolved tremendously over centuries, and that equitable consideration with respect to the recognition of common law marriage has drawn minor favor from only five of the fifty United States. Id. at 130. Common law marriage in South Carolina previously came about upon a couple mutually agreeing to and actually acquiring the present intent to be married and followed by cohabitation under that agreement. Id. at 115. Despite the eradication of common law marriage in the state, the Halpern court reaffirmed that the same equitable considerations brought about in the pre-Uniform Marriage Act era may be addressed by the court through the doctrine of equitable estoppel. Id.at 131. This means that even post-Halpern, a court may exercise "the inherent power to enforce equitable obligations of parties who appear to be legally married but who, for reasons of public policy, cannot be legally bound in marriage." Id. at 131-32. In short, though we are no longer permitted to use common law marriage as a means to establish a divorce, court-ordered alimony, child visitation or child support, we can use it to accomplish the goal of doing equity. Id. at 132.

What You Must Know for a Common Law Marriage in SC

While the debate over the existence of common law marriage continues at the federal level, it is a different story in South Carolina. The state has very specific requirements that demonstrate the intent of a couple to wed, as well as the commitment to treat each other as husband and wife.
The first requirement is that the couple must live together. If you share a residence with your partner in South Carolina, you have taken an important step forward. Presenting yourself as an attached couple is not strong enough to establish a common law marriage.
However, even more important than cohabitation is the couple’s intent to be married. A couple who does not intend to marry typically does not present themselves to the public as husband and wife. A couple who is satisfied with their relationship as it exists will not allow others to think that they are anything other than partners.
Therefore, if you are living together and routinely introduce each other as your husband or wife, you have probably created a common law marriage. An important part of this test is the consistency of the representation. A couple who occasionally slips up and calls his girlfriend his wife at a family party probably has not entered into a common law marriage. However, a couple who consistently refers to each other as husband and wife has likely taken that next important step in their relationship.
Only two additional requirements must be met. First, the parties must be mentally competent to enter into a marriage. Second, they must be of the legal age to marry in South Carolina. Under the current law, the minimum age is 16. However, any individual under the age of 18 must obtain a certificate of approval from a circuit judge.

Legal Rights and Obligations

Property rights, inheritance and other legal implications are part of a common law marriage in South Carolina. This is not necessarily the outcome for other states. In general, courts prefer to uphold a marriage than set it aside. Equitable principles may sometimes be applied if relationships did not meet statutory requirements.
Courts presume the parties intended to form a common law marriage if they held themselves out as a married couple and were of sufficient mental capacity to marry say attorneys at Stowe Family Law LLC. A partner’s intent to marry may be inferred if they engaged in marital type conduct for many years, or if they introduced the other as husband or wife, or if they purchased property together.
A marriage that lacks sufficient formalities as a result of a clerical error, or a failure to pay the fees required for recording a document is voidable not void. Such a marriage is treated as having been valid up until the point where the error or omission would have been discovered.
If a couple is not legally married in South Carolina, their property division, custody and support matters may relied on equitable principles applied in a manner similar to principles applied when a couple is not married, but still live together and intend to stay together. Property may be divided between partners who have lived as husband and wife under the doctrine of quantum meruit. This doctrine allows one party to recover the reasonable value of services it has performed for the other. The issue is one of unjust enrichment applying to claims for compensation for the value of the benefit one partner received who is not married.

How to Prove a Common Law Marriage Exists

In most situations, establishing whether a common law marriage exists is fairly unilateral, whether done by an attorney or the South Carolina Family Court. Typically, the parties to such a marriage would gather all of their documents that would serve as proof of living together for a period of time as husband and wife, any personal correspondence between the two, and witness testimony about how the couple handled their relationships in public. The parties could then file an action with the Family Court under S.C. Code §20-1-360 – Common law marriage; proof of cohabitation and reputation for general purposes. The action must be filed in the county in which the parties live or last lived together, and can be filed by one of the parties or any person who claims the relationship to be a common law marriage.
After the action is filed, the respondent must be served with the documents, and may then answer the complaint. Within 120 days of the answer, the parties’ attorneys can exchange witness and exhibit lists , followed by a pretrial conference to come to an agreement on any of the documents and witnesses. Next, a time is set for trial, at which the parties will have the opportunity to testify along with their witnesses and present evidence as to their case.
At this time, the Family Court will listen to the evidence and decide whether a common law marriage exists, with the burden of proof being on the party alleging that the marriage exists. This means that that specific party must prove their assertions by preponderance of the evidence, or that it is more likely than not that a common law marriage exists. If that party (either the person bringing the action or the party responding to the action) cannot meet this burden, then the alleged common law marriage will not be recognized.
On the other hand, if the Family Court finds that the alleged common law marriage does exist, they will issue a final judgment so stating. An appeal can be filed within the 30 days of the order.

Dissolving a Common Law Marriage

Dissolving a common law marriage is akin to divorcing after a ceremonial marriage. The only difference to ending a common law marriage is proving the added elements (ex. five year period of living together and intent by both parties to be married) in court, which are not necessary in formal marriages. Once a party to a common law marriage has sufficient evidence to support the marriage and its dissolution, then the parties can file for divorce.
The South Carolina Family Court has jurisdiction over a divorce where at least one party to the marriage has resided in the State of South Carolina for at least one year prior to the commencement of the action, or if the parties are residents of South Carolina, so long as the filing spouse has been within the State of South Carolina for at least three months next preceding the commencement of the action.
The only grounds for divorce applicable to a common law marriage is one year continuous separation. The procedure and legal requirements before the family court through divorce for the dissolution of a common law marriage, is the same as a statutory marriage. You must attend two hearings, possibly mediation, and prepare an agreement or settlement of the terms of your divorce.
It is often best to attend a consultation appointment to understand your particular situation and how the law applies. There are many rules which need to be observed in filing a complaint, and obtaining process on a complaint for divorce. There is a "do it yourself" divorce kit available online from the South Carolina Supreme Court, but a kit cannot give you the advantages of having an experienced counsel assist you with your divorce. However, a bath in the court house with pre-written forms from the South Carolina Supreme Court, is not an unmitigated disaster. Although not recommended, it is possible to dissolve a marital relationship from start to finish without legal assistance. However, this is a complicated process and a legal professional is recommended.
A divorce action proceeds through both hearings and involves the drafting of final judgment of divorce which must be signed by the judge and placed with the clerk of court. Once the judge has signed the Judgment for Divorce, the divorce is complete. Even though a judgment may be "final," in fact, appeals take place and there are future unresolved issues. There is a one year statute of limitations generally for all appeals, but this issues are discussed in future articles.

How Recent Changes to the Law Impact You

Over the years, the South Carolina Supreme Court has weakened the "common law" status of a marriage contract. For example, beginning in 1995, the Court allowed contracts between the parties to override prior authority holding that a married couple could not engage in a transaction unnecessarily detrimental to the marriage and nonetheless call it legitimate. In that case, the Supreme Court decided that if it was the true intention of parties to a marriage to abrogate the consequences of marriage with respect their commercial activity, it would not interfere with an "arm’s length" transaction. In 2005, the Supreme Court found that language and marital status in a conveyance "has a singular significance; it serves as an affirmative presumption that the grantor intended the grantee to hold title as husband and wife". In 2017, the Supreme Court continued its trend of affording stability to marriage contracts by enforcing statutory requirements for a marriage license or "common law" marriage. As of this writing, however, the result of contravening the license requirement without further showing is that the judicial result is that of a "voidable" marriage rather than a "void" marriage. Run-of-the-mill incidents of being a married couple, such as signing a mortgage with the wife’s name, may now be the basis of a finding that there was a "void" marriage.

Advice for SC Couples

If you and your partner are currently living in South Carolina or considering moving to South Carolina, and you have been living together for years, it may be advisable to either get married or establish a cohabitation agreement. Cohabitation agreements typically contain provisions on division of property, if the couple separates. These agreements can be an alternative to legal marriage for some couples, especially if they select marriage as a choice for legal recognition that has symbolic meaning, but choose not to marry for other practical reasons. Written agreements between dating partners are enforceable in South Carolina , though courts will not interpret them as family courts. Instead, those issues are left up to the Family Court.
Another option for any couple who has been living together in South Carolina is to execute a written cohabitation agreement. Any couple currently living in South Carolina who believes or suspects they may be in a common law marriage, and who has been living together for years, should review their legal documentation and consider the advice of a legal professional in South Carolina to avoid unintended consequences.