Your Guide to South Carolina Common Law Marriage: Easy Facts

Common law marriage is a concept that many people have heard of but few fully understand. In a nutshell, common law marriage allows a couple to gain the rights and responsibilities of marriage without having a formal wedding ceremony or obtaining a marriage license. While it was historically accepted across the United States, today only a handful of states continue to recognize new common law marriages. South Carolina is one of these states.

This article will clear up some of the biggest myths surrounding common law marriage in South Carolina. We’ll also walk through the legal requirements, implications, and best practices for establishing and proving a common law union in the state. Let’s dive in!

What Is a Common-Law Marriage?

A common-law marriage is a partnership that comes with all the perks of matrimony without filing paperwork or having a wedding. Rather than formalities, a common-law marriage is established through the behavior of the couple over time.

Specifically, it requires that a man and woman who are legally eligible to be married:

• Live together for a significant period of time (fulfilling the “cohabitation” requirement)
• Present themselves to others as married (fulfilling the “reputation” requirement)
• Intend and agree to be in a marital partnership (fulfilling the “intent” requirement)

Once these criteria are met, the law considers the union a valid marriage. From that point forward, the spouses have the same legal rights and duties toward one another as couples in ceremonial marriages.

Common-law marriage is often confused with domestic partnership or cohabitation. But there’s a key difference – merely living together or being in a long-term relationship does not constitute a common-law marriage. The couple must take active steps to meet the three requirements above.

Common Law Marriage Misconceptions

Given its unconventional nature, there are plenty of myths floating around about common-law marriage. Here are some of the biggest ones:

Myth: Common-law spouses have fewer rights than ceremonial spouses.

Fact: Legally recognized common-law marriages carry all the same rights and responsibilities as ceremonial marriages in areas like property ownership, inheritance, insurance benefits, medical decision making, child custody, alimony, and more.

Myth: You become common-law spouses automatically after living together for a certain length of time.

Fact: There is no magic time period for creating a common-law marriage. The qualifications depend on meeting the 3 criteria – cohabitation, reputation as a married couple, and intent to be married.

Myth: Common-law marriages are not “real” marriages.

Fact: A legally recognized common-law marriage is just as legitimate as a ceremonial marriage in the eyes of the law. The marriage certificate simply serves as legal proof, which common-law spouses may establish through other evidence.

Myth: Common-law marriage makes it easier to get divorced.

Fact: Common-law marriages must formally be dissolved through the usual divorce procedures. Courts do not treat them differently during divorce proceedings.

Myth: Common-law marriages are retroactive.

Fact: Courts may only recognize common-law marriages beginning on the date that all requirements were demonstrably met. The marriage cannot be backdated.

Myth: Common-law marriage is automatic after having kids together.

Fact: Having children together does not in itself confirm a common-law marriage. The couple must still fulfill the 3 main requirements.

Requirements for a Common-Law Marriage

The criteria for a legally valid common-law marriage are generally consistent across states that allow them. However, the specifics can vary. Here are the baseline requirements in most common law marriage states:

• Age – Both partners must be legally old enough to get married in that state. This is 18 in most states.
• Competency – Both spouses must have the mental capacity to consent to marriage. Those already married or closely related may not marry.
• Cohabitation – The couple must live together for a substantial amount of time. Many states do not specify a timeframe.
• Reputation – The couple must present themselves publicly as married. This includes telling family and friends, having joint accounts, sharing a last name, etc.
• Intent – Both partners must intend and agree to enter a marital partnership, although intent can sometimes be inferred from behavior.
• Consummation – A handful of states require the couple to have physically consummated the union. Others do not.
• No formal union – Neither spouse can be married to someone else, and they cannot have had a formal wedding ceremony.

Meeting these requirements classifies the relationship as a common-law marriage. However, the spouses must still provide evidence of the marriage if legal rights ever come into question.

Common Law Marriage States

Only a minority of states continue recognizing new common-law marriages today. They include:

• Alabama
• Colorado
• Iowa
• Kansas
• South Carolina
• Montana
• Rhode Island
• Texas
• Utah

Additionally, these states recognize common-law marriages formed before a certain date:

• Georgia (before 1997)
• Idaho (before 1996)
• Ohio (before 1991)
• Oklahoma (before 1998)
• Pennsylvania (before 2005)

The remaining states have repealed common-law marriage, requiring couples to formally register their marriage to gain spousal rights.

Does South Carolina Have Common Law Marriage?

South Carolina is one of the few states that continues to allow new common-law marriages to be established. There is no indication this policy will change anytime soon.

Common-law marriage has a long history in South Carolina dating back to the colonial era. As the state adopted more traditional marriage laws, common-law unions remained valid but stopped being actively recognized around the 1940s.

This changed in 1967 when South Carolina passed a new law fully reinstating and codifying common-law marriage. The policy has continued to the present day.

Does SC Recognize Common Law Marriage?

Yes, South Carolina legally recognizes common-law marriages formed within the state, according to Section 20-1-360 of the South Carolina Code. The law states:

“A common-law marriage in this State is recognized as valid.”

This statute gives common-law spouses the same rights and duties as formally married couples. South Carolina courts also continue to regularly uphold claims of common-law marriage that meet the required criteria.

Some key features of South Carolina common-law marriage laws include:

• No time limit – There is no minimum cohabitation time required to establish a common-law marriage. However, longer periods make proof easier.
• Partial retroactivity – If proven, a South Carolina common-law marriage may date back to the time the couple began cohabiting and acting married. However, rights are only retroactive for 2 years before a legal claim.
• All rights and duties – Valid common-law marriages come with all the legal rights of ceremonial marriage around property, inheritance, insurance, taxes, child custody, and more.
• Formal divorce required – Common-law spouses must follow standard state divorce procedures to legally dissolve the marriage. It is not terminated simply by moving out.

So in summary – yes, South Carolina does currently authorize and uphold common-law marriages within its borders.

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

Proving a common-law marriage in South Carolina requires showing:

• You meet the age and competency requirements to marry
• You and your partner have cohabited for an extended period
• You have a public reputation as being married
• You both intended and mutually agreed to be married

Some examples of evidence that help establish these elements in South Carolina:

• Joint bank accounts, utility bills, tax returns, or other financial documents indicating shared finances
• Both names listed on major purchases like vehicles or real estate
• Referring to each other as “spouse” or “husband/wife”
• Telling family, friends, colleagues you are married
• Taking the same last name
• Raising children together and presenting yourselves as their parents
• Written or digital communications discussing your marital status
• Shared insurance policies naming the other partner as spouse
• Testimony from individuals familiar with the relationship

The more types of evidence available, the easier it becomes to prove. If your case ever goes to court, documentation and witness testimony are crucial.

Legal Implications of Common Law Marriage in South Carolina

Once a common-law marriage is established in South Carolina, the legal implications are broad. Spouses gain a full range of rights and obligations affecting:

Property ownership – Commonly acquired assets during marriage are deemed marital property subject to division if you divorce. Separate premarital assets may also split depending on circumstances.

Inheritance – With or without a will, common-law spouses can inherit assets just like ceremonial spouses when one partner dies. Children from the marriage also inherit.

Insurance benefits – Partners can be added to health insurance plans and receive Social Security, veterans’ benefits, worker’s compensation death benefits, and other payouts.

Medical decisions – Common-law spouses have authority to make medical choices for incapacitated partners and may have hospital visitation rights.

Child custody and support – Courts determine custody and support arrangements as they would for divorced ceremonial spouses. Fathers gain parental rights.

Spousal support – Following a split, the higher earning partner may owe alimony payments just like a divorced spouse would.

Taxes – Common-law couples may file joint tax returns and make gifts to each other tax-free. Estate taxes also apply at death.

Debt liability – Spouses can become responsible for certain debts the other partner incurs during the marriage.

Divorce – Formal divorce procedures through family court are required to terminate a South Carolina common-law marriage.

Consult an Experienced South Carolina Family Law Attorney

Navigating a common-law marriage and potential legal disputes can be extremely complex. Working with an experienced family law attorney is highly recommended to protect your rights and interests. They can offer personalized guidance for your situation regarding:

• Documenting your common-law marriage to meet legal proof requirements
• Handling divorce, property division, spousal support, and child custody issues
• Inheritance and estate planning strategies for common-law couples
• Settling disagreements over debts, benefits, taxes, and other obligations
• Asserting your rights in the event your marriage is ever challenged or disputed after a partner dies or your relationship ends

Every common-law marriage has unique circumstances. Do your research to find a local South Carolina family lawyer that makes you comfortable and suits your needs. They should be well-versed in state common-law marriage laws and have a successful track record handling related cases.

With proper diligence upfront and professional support when needed, a common-law union can give you the benefits of marriage without the formality. Approach the process thoughtfully and enjoy your legally recognized marital status in South Carolina!

Conclusion

Common-law marriage is an old concept that remains very much alive in modern South Carolina, complete with binding legal rights and duties. While myths persist, the reality is these unconventional yet valid marital unions are treated no differently than ceremonial marriages under the law.

By meeting some basic requirements around intent, cohabitation, and public reputation as spouses, couples in South Carolina can gain a legally recognized common-law marriage. If your unique situation might fit the criteria, be sure to seek advice from an experienced local family lawyer. With the proper knowledge and preparation, you can reap the rewards of marital benefits without the formality of “I do’s”!