Recognition of Common Law in South Carolina
Common law marriage is not an option under South Carolina law. Specifically, the receipt of a marriage license and the subsequent solemnization of that marriage is the only way that the law recognizes a traditionally married couple in the state, and persistent cohabitation is insufficient to confer that status.
Moreover, since 2019, common law marriage has no effect on divorces under South Carolina law . As of now, this law applies to all ongoing cases, excepting cases that have already been tried and/or ruled on. In short, the change will probably do more to prevent future litigation immediately related to common law marriage than to impact marriages and divorces that are already ongoing.
If you’re considering a common law marriage and are uncertain about its effect in South Carolina, contact a family law attorney to discuss your options.
Common Law Versus Statutory Marriage
In South Carolina, the requirements of a traditional marriage are as follows: both parties must be at least 18 years of age, order a marriage certificate, and have a marriage solemnized. The couple must also have a marriage license, which is acquired by filling out an application with South Carolina’s Circuit Court Clerk’s office and paying a fee. A marriage license can be obtained at any South Carolina Circuit Court Clerk’s Office, regardless of where the applicant lives. The marriage license is valid for all counties in South Carolina for a period of 60 days. After obtaining the marriage license, at least one of the applicants must have the marriage solemnized. This is simply the act of the couple getting married, either in a religious ceremony, or simply by going before the local government authority. In South Carolina, once a couple has completed these requirements, they are legally married until either party successfully petitions the court with evidence of divorce or annulment.
Although common law marriages and traditional marriages share the common goal of combining two lives into one legal entity, and they are regulated by the same general pool of laws, they are drastically different in terms of their functionality. First, and most obviously, there are no solemnization requirements to a common law marriage. For a common law marriage, the couple does not have to have a marriage license or fulfill a solemnization requirement. As a result, there is no court record of the marriage itself. As such, if one spouse believes the marriage has ended by way of divorce or annulment, it is much more difficult to prove that that marriage existed in the first place. Similarly, if a couple is having marital issues, it is much easier to prevent the marriage from being discovered, since the couple does not have to file a marriage license with the courts. Because there is no paper trail of the marriage date, it is also difficult to prove when the parties were married if a divorce petition is filed. There are also no specific laws governing property distribution, alimony, child custody, visitation, or child support. This means that if the parties cannot agree to these terms, there is no alternative method for resolving these issues. South Carolina Family Courts have general grant of power to divide marital and non-marital property, award alimony, provide child support by statute, and determine the best interests of the child, but in a common law marriage, there will be no assistance either in arriving at the terms of that award or in enforcing those awards.
Brief History of the Common Law in SC
Although the concept of common law marriage appears old and familiar, it is only an "ancient custom" in South Carolina law. Both North Carolina and Georgia abolished to doctrine in the 19th century. Many states provided that all common law marriages established prior to a date certain (such as the adoption of a Uniform Marriage Act) were still valid. South Carolina did not adopt a similar rule and, instead, retains common law marriages contracted in the state even today.
The common law doctrine, referred to in our Constitution, relied on a few basic principles and relied upon the testimony of witnesses only. The South Carolina Supreme Court held in Conklin v. Conklin, 199 S.C. 331, 19 S.E.2d 331 (1942) that the seven elements necessary to establish a common law marriage were: (1) parties competent to marry; (2) mutual consent to marry; (3) cohabitation as husband and wife; (4) a public declaration of marriage; (5) consummation of the marriage; (6) reputation in the community as parties to the marriage; and (7) the marriage must not be a legal nullity. One of the last common law marriages to be validated by the South Carolina Supreme Court was in 1988. Citing Conklin, the high court in Caffey v. Foxworth, 295 S.C. 175, 367 S.E.2d 743 (1988) validated the marriage of a truck driver and a waitress who held themselves out as married for 14 years.
Reflecting the more modern view of the marital estate, the South Carolina Legislature adopted the South Carolina Uniform Premarital Agreement Act (S.C. Code Section 20-7-480 (1992). Such Act permitted couples to contract around a number of common law principles on the marital estate, including granting greater control to the courts over the division of both real property or personal property.
Even so, the same year that the Legislature enacted its statute on the division of marital property, it also passed over the opportunity to abolish the common law marriage doctrine in the state. The high court’s recent refusal to abolish common law marriage is thus consistent with prior legislative plans. Today, the marital estate laws of South Carolina are very different from the common law property doctrines. The last common law marriage occurred, according to the SC Supreme Court, as late as 2010. See McGowan v. S.C. 2012 WL 2794203 (S.C. 2012). At the same time, other states which have amended or abolished the common law doctrine have determined that marriages that pre-date the change in law have not been invalidated. South Carolina has adopted a similar approach.
Elements Required to Validly Enter into a Common Law Marriage
In order for a common law marriage to be considered valid in South Carolina, the couple must first meet these basic legal requirements: (1) Cohabitation; (2) Intent; and (3) Public Acknowledgment. While South Carolina no longer formally recognizes common law marriage, the Court will still enforce marital rights and division of assets for those couples who are found to have established a legal common law marriage prior to the Court’s decision.
The most obvious requirement for common law marriage is the cohabitation of the parties. While the Court has held that it is not essential for parties to be living together, generally, cohabitation is one of the most conclusive factors in determining cohabitation.
Intent – In determining intent, the Court tries to ascertain whether or not the couple wants to be married at that time. This can be proven by evidence of what the parties intend at the time they establish their relationship, or just what they plan to do in the future.
Public Acknowledgment – The general belief in a community that the parties are married. A few factors the Court looks at in determining public acknowledgment are: (1) whether the parties present themselves in public as being married; (2) how often the parties publicly and privately hold the other out as a spouse; and (3) how the parties refer to one another.
Pros & Cons of Common Law Marriage
Seeking a divorce from a common law marriage may be more complicated than one between parties who satisfactorily comply with the statutory requisites for a valid marriage under the South Carolina Family Code. Some disadvantages of the common law option may include:
- The evidentiary burden is on the spouse who claims the common law marriage to prove it. Fact finders will require proof of an express or implied agreement.
- The doctrine of Common Law Marriage in South Carolina is only applicable if the marriage occurs within the bounds of the State of South Carolina. If it is proven that the mutual intent between the parties was to have their union recognized as a marriage in a state other than South Carolina , the equitable remedy of Common Law Marriage does not apply.
- Common Law Marriage may be enforced in South Carolina for the purpose of obtaining a divorce only if the parties have acquired status as married persons at the time they began living together as husband and wife. A cause of action for divorce follows the initiation of a martial relationship only when that relationship has become customary and accepted.
- Divorce from a Common law marriage will be subject to the grounds for divorce set forth in the statutory code.
- The division of personal property is governed by the statutory code.
- Children born of a common law marriage are considered legitimate.
There are also some social advantages to consider, particularly in this day and age of the dissolution of the traditional nuclear family. In these modern times, common law marriage is advantageous because it provides legitimacy to the interpersonal relationship such that children will not suffer feelings of illegitimacy. However, sociologists confirm that the increase in common law marriages could be largely based upon economic reasons and not the desire to create a social stigma against the monogamous marital relationship. Lastly, same sex partners were excluded from the common law marriage doctrine and, therefore, their relationship is illegitimate under South Carolina law and is not entitled to equal treatment or the protections of the statutory code.
Recent Statutory Changes and Case Law
Since 1994, South Carolina has not recognized legal common law marriages. This means that if a couple moved to South Carolina and met the qualifications for a common law marriage in another state, their marriage is not recognized here. It also means that you can no longer enter into a common law marriage in South Carolina.
However, common law marriages validly entered into prior to 1994 are still recognized in South Carolina. If a couple obtained a valid common law marriage prior to 1994 (and have not since gotten a formal marriage license) then that marriage will be valid until it is dissolved by a court.
In addition to having had a common law marriage prior to 1994, a couple must also have obtained an annulment or divorce of their common law marriage in another state in order for South Carolina Courts to have jurisdiction over the dissolution of that marriage.
In Thompson v. Thompson, issued in 2005, the South Carolina Supreme Court held that a common law marriage created prior to 1994 was not automatically converted into a ceremonial marriage. Our legislature later passed S.C. Code ยง 20-1-15, which states that all common law marriages validly created in South Carolina prior to 1994 are converted into ceremonial marriages as of July 21, 2005, unless the couple had previously obtained an annulment or divorce in a court of competent jurisdiction.
Dissolving a Common Law Marriage
The dissolution of a common law marriage is similar to the dissolution of a ceremonial marriage in South Carolina. As common law marriages that meet the required elements are considered valid in South Carolina, the law treats them no differently than it would a traditional ceremonial marriage.
The decision to obtain a divorce from a common law marriage or formally dissolve a common law marriage is one that is generally left up to the parties involved. In many cases, the fundamental legal issues surrounding the divorce such as alimony, equitable distribution, child support and custody are the same whether the marriage was common or ceremonial. The parties can either sign an agreement or obtain a court order that governs the parties after the marriage is dissolved, just as in a ceremonial marriage.
One notable difference between common law marriage and ceremonial marriage in South Carolina is that a common law divorce can be obtained without a waiting period. In South Carolina, there is a statutory waiting period associated with the filing for a divorce. An exception exists, however, for parties who are already separated and have lived separately for more than one year. Unlike ceremonial marriages, where the dissolution of the marriage is therefore sometimes delayed due to technicalities, common law marriages may be dissolved quickly and simply. Sometimes the parties wish to legally dissolve a common law marriage, for a variety of personal and financial reasons, or to prevent a subsequent marriage from being questioned in light of the parties prior informal marriage.
Legal Counsel and Notice
In complex situations such as common law marriage, it is often imperative to seek legal counsel before taking any further steps in your relationship. A family law attorney can help you evaluate your status as a common-law spouse, determine whether a cohabitation agreement would work for you, and if necessary, guide you through divorce or dissolution of a common-law marriage . If you have been living in a common law marriage for years, you may not be aware of how much more complicated your separation and division of property will be compared to a traditional legal marriage. It is best to obtain legal advice as early as possible because many important decisions, including when to move out, must be made with the status of the relationship in mind.