Common law marriage can be confusing, especially in South Carolina. Since the state recently stopped allowing new common law marriages, many people are unsure how this affects them. If you were in a common law marriage before the law changed, you may still have the same rights and responsibilities as couples who had a traditional wedding.
This guide will walk you through everything you need to know about common law marriage in South Carolina. We will cover its history, the requirements for a valid union, and the legal implications for couples. Understanding these details is crucial for protecting your rights regarding property, benefits, and children.
What Is a Common Law Marriage?
A common-law marriage is a legal union between two people who did not obtain a marriage license or have a formal wedding ceremony. Instead, they act as a married couple in public.
For over a century, South Carolina recognised these unions. However, this changed on July 24, 2019. In the landmark case Stone v. Thompson, the South Carolina Supreme Court ruled that no new common law marriages could be established in the state after this date. (Inability to Enter into a Common Law Marriage on or after July 24 2019, 2019)
It is essential to understand that this ruling is not retroactive in nature. Any common law marriage that was validly established before July 24, 2019, is still recognised as legal. (South Carolina Supreme Court abolishes common law marriage, 2019) Couples in these unions retain all the rights and obligations of a ceremonial marriage. However, any relationship started or presented as a marriage after this cutoff date will not be legally recognised as a common law marriage in South Carolina.
How to Prove a Common Law Marriage in SC
To have your common law marriage recognised, you must show the court "clear and convincing evidence" that your relationship started before July 24, 2019. (In SC, court rules marriage license required to say 'I do., ' 2019) This is a strict legal standard. Just living together does not count. You need to demonstrate that both you and your partner intended to be married and behaved as a married couple in public.
Here are the key requirements a court will examine:
- Present Intent to Marry: Both people must have agreed to be married for life. This means more than just a casual promise; it is a clear commitment to a marriage.
- Legal Capacity to Marry: Both partners must have been legally allowed to marry when the relationship started. They had to be at least 16 years old (with parental consent), mentally capable, and not already married to another person. (Minimum age for valid marriage, 2024)
- Public Representation: The couple must have shown others that they were married. This is very important and can be proven by actions such as:
- Using the same last name.
- Filing joint tax returns.
- Referring to each other as "husband" and "wife" in public.
- Naming each other as a spouse on official documents like insurance policies or deeds.
- Having children and raising them together as a married couple.
- Indefinite Commitment: The couple must have planned for the marriage to last, not just live together for a short time.
A court will look at all these factors. If one person claims there was no marriage, the person claiming a marriage must prove it with substantial evidence.
Rights and Responsibilities of a Common Law Marriage
If your common law marriage is legally recognised, it is treated the same as a traditional marriage. You have the same rights and responsibilities. (Does South Carolina recognise common law marriage?, 2025) These include:
- Divorce Requirements: You cannot simply "break up." A common law marriage must be legally dissolved through a formal divorce process, just like a traditional marriage. (Common Law Marriage in South Carolina, 2019)
- Spousal Benefits: You are entitled to spousal benefits, such as Social Security, pensions, and coverage under a workplace health insurance policy.
- Inheritance Rights: Spouses in a common law marriage have the right to inherit from each other, even if there is no will. (Common-Law Marriages Can No Longer Be Formed in South Carolina — and Pre-Existing Ones May Also Be Affected by a Recent South Carolina Supreme Court Ruling, 2019)
- Property Division: Assets acquired during the marriage are typically considered marital property and are subject to division upon divorce.
- Child Custody and Support: Legal standards for child custody, visitation, and support apply to children born during the marriage.
- Alimony: One spouse may be eligible to receive or be obligated to pay spousal support (alimony) if the couple separates.
Even though your rights are protected, not having a marriage license can make things more difficult. You should show extra paperwork to prove you are married when you apply for benefits or loans.
Common Myths About Common Law Marriage
Many people have misunderstandings about common law marriage. Here are some of the most common myths and the facts:
- Myth: You are automatically married after living together for a set number of years (often cited as seven).
- Fact: No state has a rule that automatically creates a marriage based on the duration of cohabitation. You must meet specific legal criteria.
- Myth: All states recognise common law marriage.
- Fact: Only a handful of states still allow the formation of new common law marriages. Most, like South Carolina, have abolished it. (What States Allow Common Law Marriage?, 2020)
- Myth: Ending a common law marriage is as simple as moving out.
- Fact: A common law marriage is a legal union. It can only be ended with a formal divorce decree from a court.
- Myth: It’s easy to fake a common law marriage for benefits.
- Fact: The legal requirement of "clear and convincing evidence" makes it very difficult to claim a common law marriage fraudulently. Attempting to do so can lead to severe legal penalties.
Navigating Your Legal Standing
It is essential to comprehend the specifics of common law marriage in South Carolina, particularly in light of recent legislative updates. If your relationship started before July 24, 2019, and you think it counts as a common law marriage, your rights are protected. Still, you will need strong evidence to prove your case.
If you are unsure about your legal status or need to separate, it is best to consult a lawyer. An experienced family law attorney can explain your rights, help you collect the proper evidence, and guide you through the legal steps to make sure everything is handled fairly.