What is Common Law Marriage?
Common law marriage is an outdated system that allows a couple to establish a legally valid relationship without having to go through the formalisation of a marriage ceremony. In some jurisdictions, a couple may become legally married merely by agreeing to execute a contract that establishes their intention to marry, while in others a period of cohabitation is required. Essentially, common law marriage allows spouses to realise the benefits of marriage without the need for elaborate and often costly ceremonies.
A couple must not only live together to become legally married, generally , rather they must be able to demonstrate an intention or agreement to live together as husband and wife. They may also be required to hold themselves out as a married couple. In short, it is an agreement to be legally married together with the appropriate steps to demonstrate that intention.
While still recognised in some jurisdictions, such as South Carolina, the overwhelming majority of states no longer endorse the practice of common law marriage. Instead, they require spouses to execute a marriage contract through the services of a judge or other licensed officiate. Common law marriages are that uncommon anymore.
A Brief History of Common Law Marriage in South Carolina
The concept of common law marriage has been a part of South Carolina’s legal history for centuries. It has existed in Roman, English, and American jurisprudence since at least the 18th century. Prior to the Civil War, any common law marital status was respected in almost any jurisdiction as valid ground to grant alimony, "a divorce from bed and board," or an annulment, even if the marriage was undertaken under circumstances that were invalid under statute or failed to conform to common law requirements. The common law of marriage was thought to be based on public policy, in that a marriage undertaken by mere agreement alone should have every protection of law extended to it and thus, alimony could not be denied to either party. However, the sources of law began to reexamine that position in the wake of the Civil War and the issuance of various Congressional laws that began to govern issues of marriage, divorce, legitimacy, and protection of women’s rights to marital property. With the passage of the Federal Defense of Marriage Act (DOMA) in 1996, the common law of marriage was at least partially set aside as federal law began to govern the treatment of spousal rights in common law marriages. In 2010, however, the South Carolina Supreme Court handed down its decision in the case of Floyd v. Floyd 395 S.C. 459, 719 S.E.2d 69 (2011) which recognized that common law marriage is still theoretically possible in South Carolina. However, the court also found that common law marriages of ce couple must exist before July 24, 2015, and that the relationship must satisfy specific elements. In 2019, The State of South Carolina enacted The Common Law Marriage Abolition Act, which abolished common law marriage as of Amendment 23, 2014. Thus, there is no longer any question as to the existence of common law marriage in South Carolina.
Present Day Status
There are instances in which a couple may have initiated the dissolution process prior to 2019. However, due to the COVID-19 pandemic, many couples may have been unable to finalize their actions in 2019. As such, there are individuals that continue to have questions about the current legal status of common law marriage in 2023. While common law marriages were in fact grandfathered in 2019, the South Carolina legislature did not pass a statute that provided for the grandfathering of cohabitating parties (that is, parties who do not meet the five elements of a common law marriage). At this point in time, the recognition of a common law marriage formed prior to 2019 is a matter of judicial discretion until the General Assembly decides to amend Act 85 to include a provision for cohabitating parties.
Elements of Common Law Marriage
In South Carolina, there are specific requirements that must be met for a common law marriage to be valid. First, the couple must have the intent to be married. This simply means that the couple must have an agreement to be husband and wife. In other words, they should intend to be married, not live together as "roommates" or friends. However, this is the most difficult requirement to fulfill because the couple does not have a written agreement. So intent is the most difficult requirement. You might think that living together is a way to prove intent, but this isn’t necessarily the case. The court will not assume that just by living together everyone knows these people are married.
Second, this agreement must be permanent. A couple cannot agree to marry someday in the future. It has to be an agreement that is already in effect.
Third, the spouses must live together or cohabitate. Cohabitation exists when a couple lives under the same roof, shares money (such as a bank account or bank card), performs regular household chores, eats meals together regularly, and holds itself out as equivalent to a traditional husband/wife couple. Cohabitation can be proven through evidence that the couple’s relationship is a "shared economic enterprose."
Fourth, common law spouses have to hold themselves out to be a married couple. To hold oneself out as married means to occupy the status of husband and wife in the general public. It is evidence that the couple is acting in a manner consistent with a traditional husband/wife relationship. Public acknowledgment can be shown through common activities such as joint social and recreational activities, mutual acquaintances, or attending family functions together.
If these requirements are met then a common law marriage may legally exist. However, the more a couple can do to establish a traditional marriage, the better. Much of the existing case law about common law marriage in South Carolina is cold and stark. If you enter into a common law marriage, you are in for a long wild-ride. Just ask those who got divorced after 20+ years of common law marriage.
Advantages and Disadvantages
The benefits of entering into a common law marriage in South Carolina compared to a traditional marriage are relatively few. Perhaps the best benefit is the fact that intended parties do not have to participate in the bureaucratic process of obtaining a marriage license. In an admittedly extremely few number of cases, this has been an advantage. For example—in the 1950s, political dissidents or active soldiers in foreign countries were not able to get a marriage license. This has changed significantly with the advent of Internet availability, international filing, and anti-discrimination laws.
Another possible benefit of entering into a common law marriage is that it will provide the parties the full benefits awarded married couples under family law. Equally attractive is the fact there are no residency requirements in South Carolina, so a couple can enter into a common law marriage even if only visiting South Carolina as long as they meet the age and capacity requirements.
Finally, a few couples have found the social stigma of living out of wedlock disguisable by the apparent legitimacy of being in a common law marriage. However, social norms have changed considerably in the past 20-30 years, and parents are not as harsh on their children if they live together outside of marriage provided that they commit to each other for the purposes of visitation, care of children, tax benefits, and insurance benefits.
The limitation to a common law marriage is that when one party dies , unless the other spouse has specific documentation or paperwork showing the marriage to be valid to a probate court, they may not receive proceeds of life, disability, or retirement benefits. In addition, division of real or personal property following a death will be more difficult in proving and will be subject to challenge in a court of law.
In Straight v. Straight, 278 S.C. 553 (1972), the Supreme Court of South Carolina found that the evidence of common law marriage was not sufficiently unequivocal to entitle the widow in that case to share in the estate of the decedent. The key component to this case was that he had not told family members or friends, and refused to pick her up in his car with a ring that was seen by the public which would have established the union to his family, friends, and the public in general.
A common law marriage is also subject to challenge in a court of law if one party or the other decides to end the relationship. The only real requirement to the dissolution of a common law marriage, however, is absolute proof of the fact the parties did not hold themselves out as husband and wife. In Moore v. Moore, 249 S.C. 614 (1967), the Supreme Court stated "The proof concluded by the lower court that the parties had separated for a period exceeding ninety days and for that period had not held themselves out as husband and wife".
South Carolina does not recognize common law marriages. A common law spouse does not automatically have the same rights as a legally married spouse in South Carolina.
Proving a Common Law Marriage
Proving a Common Law Marriage in South Carolina
Evidence in Support of a Common Law Marriage
In order to prove the existence of the marriage in South Carolina, all facts alleged must be established by clear and convincing evidence. Cuzco v. Cuzco, 420 S.E.2d 532 (S.C. Ct. App. 1992). This is a higher level of proof than merely the preponderance of the evidence. To prove the existence of a common law marriage, there must be sufficient proof that the couple were capable of entering into a marriage contract, the intellectual capacity to enter into a contract, and an exchange of martial rights and obligations, followed by cohabitation. Stuckey v. Stuckey, 643 S.E.2d 681 (S.C. 2007). Cohabitation is very important as it is evidence of a contract to marry. Cohabitation can take the form of sharing a domicile, holding themselves out as married to family and friends, a sexual relationship, and establishment of martial rights and obligations.
Evidence South Carolina Courts are looking for to prove a Common Law Marriage Include:
Evidence Against a Common Law Marriage
Of course, if you were put on the contrary to prove a common law marriage does not exist – you would have to provide evidence that two people never had a contract, never held themselves out to be married to the community, and never lived together. The issue of a common law marriage comes up most often when parties are attempting to collect inheritance, property, alimony, or other assets.
Keep in mind that although a common law marriage does not require a wedding license, it is still necessary to prove the existence of the marriage. If proof of the common law marriage fails, the Court must not assume that a contraband marriage exists. Bowers v. Bowers, 653 S.E.2d 750 (S.C. Ct. App. 2007).
It is easier to prove a common law marriage existed during the time the relationship was still occurring. The closer to the death date that the events occur, the better. The longer out it gets, the harder it is to find witnesses and the harder it is to establish that a marriage existed.
Dissolution or Annulment of a Common Law Marriage
Common law marriages are disfavored in South Carolina, but in the event that you can prove that you were married by common law, then you are subject to the same dissolution as a formal marriage that took place with a marriage license and a ceremony. In order to obtain a divorce from a common law marriage, you would file the action for a divorce just like any other action for divorce. However, if you were to try to get a simple family court order stating that you were married by common law, that action would have to take place in the circuit court. That is an action for a judgment of marital status, to state that there was a previous marriage between the spouses, so that you could, for instance, have the division of property that occurred during marriage be judicially approved to count as equitable distribution, or so you could seek an annulment of that common law marriage if you so desired at some point in time. The circuit courts are set up to hear things such as marriage dissolution. There is no statute on the books which would prevent family courts from hearing this type of case, since family courts do have some jurisdiction over nullities of marriage actions, but the majority of cases have typically gone to the circuit court after some education about what a common law marriage is and what action needs to occur in order to dissolve it.
The Effect of Recent Case Law
While common law marriage has been abolished in South Carolina, recent court rulings have shown that propertied couples who are not married may encounter some rather unexpected results. Carolina Care Plan v. Smith (2008) resulted in the plaintiff being ordered to provide healthcare coverage to a separated spouse who was entitled to such coverage prior to the divorce. In Caronia v. Pruitt (2008), the South Carolina Supreme Court was forced to examine whether a single agreement for probate of a will was enough to require her ex-spouse to share equally in the proceeds of that will . In both cases, the couples involved were separated yet still were entangled with their ex-spouses in ways that were similar to traditional marriages. These decisions should alert individuals who are considering divorce in South Carolina to be careful about how they frame the terms of their separation, as they may find themselves dealing with their spouses for many years to come and not in the ways that they expect.