As Charleston divorce attorneys, we’ve dealt with cases involving common law marriage in South Carolina. South Carolina is one of the few states that still recognize a “common law” marriage even though the couple didn’t have a ceremony or get a marriage license. In this article, our Charleston divorce lawyers explain what is common law marriage, whether living with someone means you’re married under common law, how to prove a common-law marriage, and how to make sure that you aren’t unintentionally creating a common-law marriage.
IMPORTANT UPDATE – COMMON LAW MARRIAGE ABOLISHED IN SOUTH CAROLINA AS OF JULY 24, 2019
In a recent case involving common law marriage in South Carolina, the South Carolina Supreme Court abolished common law marriage.
We have concluded the institution’s foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted. Accordingly, we believe the time has come to join the overwhelming national trend and abolish it. Therefore, from this date forward—that is, purely prospectively—parties may no longer enter into a valid marriage in South Carolina without a license.
In abolishing common law marriage in South Carolina, the Supreme Court did so prospectively stating:
We see no benefit to undoing numerous marriages which heretofore were considered valid in our State, and we will not foreclose relief to individuals who relied on the doctrine. Accordingly, our ruling today is to be applied purely prospectively; no individual may enter into a common-law marriage in South Carolina after the date of this opinion.
What is a Common Law Marriage in South Carolina?
A marriage usually involves both spouses obtaining a marriage license from the probate court and having a ceremony where the spouses exchange vows. In a common law marriage, the couple may be considered married, even without a ceremony and a marriage license, if:
- No Impediment to Marriage – Both parties are legally free to marry (such as not already married to someone else, not brother and sister, not underage).
- Cohabitation – The parties must cohabitate (live together).
- Present Intent to Be Married – There must be an agreement (formal or informal) and an intent to be married.
- Reputation – Both parties must hold themselves out to the public as husband and wife.
In South Carolina, Does Living Together Create a Common Law Marriage?
No. Many couples live together in South Carolina without ever creating a common-law marriage. Also, the length of time you live together doesn’t by itself determine whether a common-law marriage exists. In fact, no South Carolina law says that a certain number of years of cohabitation creates a common-law marriage. A couple could live together for decades without creating a common law marriage, or they could create a common law marriage based on one evening of living together.
How is a Common Law Marriage Different from a Traditional Marriage?
Besides the way in which the couple married, there is no difference. Parties to a common law marriage have the same duties, responsibilities, and rights as if they were formally married. In other words, a couple married under common law is just as married as a couple who had a formal marriage ceremony. For example, children born out of a common law marriage are legally presumed to be the children of the husband. Also, to end their relationship, a couple married under common law must get a divorce.
In South Carolina, How Do I Prove I’m in a Common Law Marriage?
First, you have to show that you’re both legally free to marry as mentioned above. Second, you must show that you and your partner lived together for some period of time. The third and fourth items, intent to be married and a reputation as a married couple, can be challenging to prove:
Intent to be Married – Intent to be married can either be formal (such as a written agreement signed by both parties stating they’re married) or informal (such as calling each other husband and wife). Whether the intent is formal or informal, you must also show that you and your partner both held yourselves out to the public as being husband and wife.
Holding Yourself Out to the Public as Married – This is also called “reputation.” Essentially, you must show evidence that both you and your partner acted in ways so that the public accepted you as a married couple. Examples include:
- Both parties in the relationship told others that they were husband and wife – That would not only be proof of an intent to be married, but also proof that you held yourself out to the public as a married couple. If one party was making that claim, and the other party didn’t know it, then that wouldn’t be proof of reputation. However, if one party was making that claim in front of the other party, and the other party remained silent and let others think there was a marriage, then that would be proof that you were married under common law.
- The couple fills out paperwork using the same last name – Again, this would be proof of an intent to be married and proof of reputation. A few examples of this include:
- Joint checking accounts
- Lease agreements
- Hotel or motel registries
- Joint tax returns
- Beneficiaries on life insurance
Why Does It Matter Whether I’m in a Common Law Marriage?
If a couple breaks up, the rights between them can be drastically different depending on whether they’re considered to be in a common law marriage. Here are some examples:
Bigamy – If the couple is married under the common law, then they must get a divorce. Otherwise, it’s illegal (bigamy) for either one of them to get remarried.
Alimony – Let’s assume that an unmarried couple lives together, and one of them provides most or all of the financial support by paying the bills. If the couple splits apart, each party is on their own financially. However, if the couple is married under the common law, then the breadwinner may have an obligation to pay alimony to the other party.
Assets and Debts – When unmarried couple lives together, it’s common for both of them to contribute financially to their relationship such as helping to make mortgage payments or buying furniture and appliances together. When the unmarried couple splits, major problems can arise over property and debts if the parties can’t agree on how to divide their assets and debts. For example, we dealt with a case where an unmarried couple lived in a home that was titled in the boyfriend’s name, but both parties signed the mortgage. When the couple broke up, the boyfriend was legally entitled to keep the property and any equity in the property even though the girlfriend made mortgage payments for several years. To make matters worse, the boyfriend wasn’t able to make the mortgage payment on his own, and the house went into foreclosure. Because the girlfriend signed the mortgage, her credit was ruined, and the bank tried to collect directly from her. If the couple had been married, then the family court could have ordered that the property be sold and that the woman receive her fair share of the equity in the home. Also, the family court could have ordered that she remain in the home instead of her boyfriend.
Children – If the unmarried couple has a child, then the law states that the mother has full custody of the child. Absent a family court order stating otherwise, the father has no rights other than to support the child. However, if the couple is married under common law, then the father’s rights are equal to the mother’s rights.
Death and Probate – If an unmarried couple lives together, and one partner dies without a will, then the other partner has no rights to inherit any money or property from the deceased. If the couple is married under the common law, then even if the deceased didn’t have a will, the survivor would receive half of the deceased’s estate if they had kids and all of the estate if they didn’t have kids. Also, if the deceased partner had a will but purposely left the other out of the will, the common law spouse would still be entitled to 1/3rd of the deceased’s estate.
How Do I Avoid Creating a Common Law Marriage?
You could enter into a written agreement that you both sign that makes it clear that while your relationship is romantic, you have no intention of getting married and that you can only be considered married by formally obtaining a marriage license. Otherwise, make sure you don’t hold yourself out to the public as husband and wife as follows:
- Don’t tell anyone you’re married.
- If your significant other introduces you as a spouse, correct them.
- File separate tax returns.
- If you buy a house together, make sure the mortgage you sign doesn’t list you as “married.”
- Keep bank accounts and credit cards separate.
- Don’t put utilities and other bills in both of your names.
Overall, use your common sense and don’t confuse the public about your relationship.
Charleston Divorce Lawyers for Common Law Marriage
If you’re trying to prove that you’re in a common law marriage or you’re defending a claim of common law marriage, then contact the family lawyers at Futeral & Nelson. We have experience in common law marriage and we’re ready to help you.