What is common law marriage?
Common law marriage is a unique concept within the context of South Carolina law. Although it may appear like your typical marriage on the surface, common law marriage exists separate from the formal institution of marriage. Put simply, where a couple has met the requirements for establishing a common law marriage, the marriage will be recognized by the State just as if it were formalized with a marriage certificate . South Carolina recognizes and enforces common law marriage so long as it requires certain criteria to be satisfied. There are two general requirements in South Carolina for establishing a common law marriage: (1) the couple must be of the legal age of consent, and (2) the couple must intend to be married. When the laws of another state would recognize a common law marriage but South Carolina does not, the courts of South Carolina will not recognize this marriage in South Carolina.
Common law marriage in South Carolina
Common law marriage is the concept in which a couple can be considered legally married even though no civil or religious ceremony has taken place. Historically, courts in South Carolina used common law principles to determine the validity of a relationship between people claiming to be married. However, the Birth of the Legal Regime by the Domestic Relations Reform Act in 1987 changed both the structure and the terms of marriage in South Carolina. The Domestic Relations Reform Act distinguished amongst three (3) types of marriage in the State of South Carolina: ceremonial marriages, common law marriages and a "relationship more like a husband and wife." Crucially, Part 2 of Title 20 provided that common law marriage was abolished in South Carolina. Since its enactment, the Domestic Relations Reform Act has been subject to many amendments. The abolition of common law marriage was finally codified in South Carolina law with the enactment of Section 20-1-360(A). South Carolina Revised Statute section 20-1-360(A) provides, in no uncertain terms, that "[a]bsent a written contract authorized by Section 20-1-50, in which the parties manifest intent to be obligated to each other as if they are married, a man and woman who have joined together in the manner commonly termed common law marriage may not be recognized at law as being married" Unless an exception set forth in Section 20-1-360(B) is applicable, the Parties who continue to cohabit under the guise of a marriage, without the lawful marriage license, are not legally married. Subsection (B) identifies two situations, both of which exceptions to the general rule of the abolishment of common law marriage. Subsection (B)(1) allows for recognition of a common law marriage if the following four (4) prerequisites are met: Importantly, Subsection (B)(2) states that a Common Law Marriage can still be valid if commemorated by a ceremonial marriage prior to the enactment of the Domestic Relations Reform Act. This language indicates a possible nesting effect for common law marriages that existed prior to the abolishment of that doctrine by the Domestic Relations Reform Act and later commemoration of the marriage by a ceremonial wedding.
Common law marriage requirements in South Carolina
To create a common law marriage in South Carolina, a couple must enter into a non-legal marriage bond or marry in an informal manner. A non-legal marriage exists when a couple undertakes a mutual agreement to be married and cohabits as husband and wife, which produces an effect tantamount to marriage. A common law marriage also requires that the parties must have an intent to enter into the marriage relationship and live together as a married couple.
The two essential elements of an "informal or non-legal marriage" are:
1. A mutual agreement to be married, and
2. Continuous cohabitation as husband and wife.
If a couple agrees to enter into a marriage bond with a solemnization (i.e., a marriage certificate and ceremony), then the couple is legally married.
Moreover, a couple may enter into an informal marriage under the express consent of statute (e.g., marry under special circumstances and obtain a license but not participate in a solemnization ceremony). Any marriage outside the purview of these two categories is not recognized because spouses must "mutually agree to be married and cohabit as husband and wife speaking and acting as a married couple."
The intent to enter into a marriage bond must be clear and unambiguous in order to establish a common law relationship. South Carolina does not require or recognize a specific amount of time that a couple must live together in order to qualify as a common law spouse. A couple may be deemed married even if they only lived together for a few months. Although there are no hard and fast restrictions on the length of time a couple must live together, it is fact sensitive. The facts of each case will determine how long a couple must live together in order to be deemed in a common law marriage.
Legal factors for common law marriage
The legal implications of common law marriage are far-reaching, and can impact a number of important areas in your life.
Financial Responsibilities: Even if you are not married the Department of Child Support Services in South Carolina can require that you pay child support. The amount is based on the Federal Child Support Guidelines. For example, the child support guideline for one child and a net income of $500.00 per week is $100.00 per week. Even if a court determines that you are not common law married it is possible that you will still be required to pay child support based on the notion that you had an obligation to support this child.
Inheritance Rights: Currently , South Carolina does not recognize common law marriage as a valid marriage if the common law couple ever lived in Charleston County. The Supreme Court of the State of South Carolina ruled in 2005 that the only person that can inherit from a spouse is someone that is married under the law of South Carolina, and so someone who entered into a common law marriage in a county other than Charleston no longer has inheritance rights.
The Process of Dissolving a Common Law Marriage: In order to dissolve the legal relationship amongst the common law partners after the death of one or both of the partners there are two options, divorce or annulment. Divorce is the process of ending a valid and legal marriage. South Carolina does not have a statute governing annulments, but the Court of Appeals ruled in 1987 that there are five grounds for an annulment. These grounds can be found in the case Morgan v. Prestage, 353 S.C. 569; 579; 579 S.E.2d 128 (2003).
Common law marriage proofs
In order to prove the existence of a common law marriage, the couple must be able to provide clear and convincing evidence of the existence of a marriage at the time of the death of the party who was living. The problem is that in most cases there is almost never any evidence of the actual marriage itself. What is usually the case is that the parties are able to provide evidence of the fact that they held themselves out to the public as being married.
In a common law marriage the essential factors that a court looks to in making its decision as to the existence of the married in South Carolina are:
There is case law that says that evidence has to be presented to the court that the parties once lived together with the intent to enter into a legal marriage. Under South Carolina common law, the parties must consider that they have been legally married even though they have not gone through any ceremonial marriage or have gotten a marriage license. This means that the parties have to live their lives assuming that they are legally married.
In a South Carolina case from 1970, Kreiser v. Kershaw County Civil Service Commission, the court found that it was necessary for the lower court to have sufficient evidence as to the parties living together as man and wife with the intent to establish a legal marital relationship. The evidence required by the Kreiser case would be evidence that the parties held themselves out to be married by:
Evidence presented to the court must be independently verifiable in order to be the basis for establishing a common law marriage. The mere fact that the parties are cohabitating for a long period of time is not enough to prove the assumption of a common law marriage.
Alternatives to common law marriage
While common law marriage may be falling out of favor, there are still many ways to have a legally recognized relationship with your partner even if you don’t wish to make it official through a traditional, state-licensed marriage ceremony. Domestic partnerships, civil unions, and other types of arrangements may be available, depending on the location.
Domestic Partnerships
Some of these alternative forms of marriage allow you and your partner to traverse the legal landscape as though you were married. A domestic partnership creates a legally registered relationship that provides many of the same rights as a legal marriage. Domestic partnerships are similar to common law marriages but may specifically limit their legal scope to insurance and employee benefits and inheritance in the event one partner passes away. Domestic partnerships cannot be entered into if either party is already married or in a civil union or domestic partnership. Some states provide for domestic partnerships only for individuals of the same sex, while others create this option for all couples.
Civil Unions
Civil unions are a legal alternative to marriage that has significant overlap with domestic partnerships. However, the requirements and entitlements of a civil union are specific to the jurisdiction in which you live so be sure to investigate your state’s qualifications before entering a civil union with your partner .
Covenants of Support
As common law marriage is uncommon nowadays, some couples may to opt out of marriage entirely by creating a covenant of support. Essentially a legal partnership agreement, a covenant of support should articulate how you and your partner intend to handle all of the tasks that a legal marriage would involve. For example, your agreement may discuss how you will schedule your at-home chores, how you’d like to divide your assets if you ever do separate, or how you intend to handle personal finances as a couple. A covenant of support is not a legally recognized institution, so parties who enter into this type of agreement still cannot enjoy certain legal benefits of a traditional marriage.
Legal Cohabitation
Like a covenant of support, a legal cohabitation agreement cannot provide you and your partner with the same legal representation as marriage, civil union, or domestic partnership. However, the important distinction is that a legal cohabitation agreement does not need a ceremony or legal filing to take effect. This may be desirable for some couples who wish to formalize their emotional or financial commitment to one another. Although your agreement will not be recognized by the state, you can still use it to inform future decisions, from opening a joint checking account to deciding what to do with your property in the event of death or separation.
No Responses