Common Law Marriage in South Carolina

There are many misconceptions about common law marriage in South Carolina, and whether it even exists or is relevant in the 21st century.

But common law marriage does exist in South Carolina, and can be critical when a couple that by everyone’s account lived their lives “like they were married” unexpectedly breaks up.

Suddenly, questions like “who owns that house they bought five years ago?”, as well as those two cars and that jet ski they use become pressing issues for two people trying to move forward with their lives.

South Carolina remains one of less than 10 states that has common and statutory laws allowing common law marriage. Although the South Carolina Code of Laws makes few references to this institution, case law shows that the rights of people who believed they were married in South Carolina do get some protection.

What Exactly is Common Law Marriage?

Common Law marriageA basic common law marriage is when two people themselves believe and hold out to the public that they are married. Often, they take additional steps to cement this bond by using the same last name, creating joint bank accounts, filling out bank applications as a married couple, even filing income taxes as a married couple.

The technical definition varies slightly from state to state, but the end result is very similar. A common law marriage is supposed to be more than just committed “shacking up.”  It’s supposed to occupy that area of relationships where the parties truly believe they have a marital relationship, which they display to the world.

What is Required to Create a Common Law Marriage in South Carolina?

Case law over the last 40 years best defines common law marriage in South Carolina. The short answer to this question, however, is:

  1. That the parties believed that they were essentially married, and demonstrated this belief both privately and publicly; and
  2. That the parties were eligible to be married.

The first part of the requirement deals with how the parties feel about the relationship themselves, and how this relationship is presented to friends and society at large. Various South Carolina court cases have shown that several factors can be used to help clarify if a common law marriage exists:

  • Do the parties truly believe they are in essence married, and did they intend to be married to each other?
  • Do they represent they are married to friends, family, co-workers or others that they are married?
  • Do they share the same last name?
  • Do they cohabit?
  • Do they have joint bank accounts with the shared last name?
  • Have they filed joint income taxes as a married couple?
  • Did they undertake other financial transactions, like obtain a loan as a married couple?

There seems to be a misconception that parties need to be together in South Carolina for 7 years to form a common law marriage. However, there is no specific provision in the South Carolina Code of Laws, and no case law that specifically sets out a minimum time requirement.

But even if two people lived together for 10 years, shared the same last name and opened joint bank accounts together, they still have to be technically eligible to be married. This means that:

  1. They must be “legally free” to get married (not still married when common law marriage started)
  2. Both parties must be at least 16 years of age.
  3. The marriage cannot be a prohibited marriage (such as between relatives who are first cousins, brother and sister, etc.)

When Do Common Law Marriage Issues Come Up?

Common law marriage issues can come up whenever provable marital status is an issue, which can happen at any time during the course of a long relationship.  This can occur when one partner is trying to access medical records of a partner, when a couple is trying to adopt a child, or even at the end of life when one partner tries in vain to collect social security death benefits, or access IRAs or retirement accounts.

Another example might be if two people lived together for years, raised several children and purchased a house, a few cars and other domestic comforts. The issue can come front and center if they split and one partner claims he or she purchased most or all of the assets and wants to keep everything.

In these cases, it’s true that South Carolina family law judges are bound to approach distribution with the idea that assets and debts in a marriage are “equitably” divided. But there has to be a marriage for this rule to apply. If a partner can prove that both parties thought they were married, and lived like a married couple, they could be entitled to the “equitable” share of all assets (and debts) that South Carolina provides.

This could mean the difference between a partner walking away from a long-term relationship with nothing, or coming out of the other side of a relationship journey with some kind of financial blanket to get a fresh start.

Finally, if a couple is found to be involved in a common law marriage in South Carolina, there is no such thing as a “common law” divorce. The process to undo their marriage is the same as any other married couple, which can take time and may require the help of a South Carolina attorney. Contact LaMantia Law Firm if you have questions about your common law marriage or divorce.

photo credit: Hearts (license)