What is a Common Law Marriage?
Common law marriage is a legal framework that has existed for centuries, rooted in tradition and local customs rather than codified statutes or regulations. It arises when a couple lives together and presents themselves as being married, often without seeking a formal dissolution or legal termination. In common law marriages, essentially, a marriage is established through the actions and intentions of the parties rather than through a judicial ceremony.
Historically, common law marriage was a solution to the legal and logistical challenges of marriage when couples lived in remote areas where access to judges, clergy, or other officials who could perform a ceremonial marriage was limited. Over the years, common law marriage has seen a decline as more traditional means of marriage became accessible to larger populations. Nevertheless, there are still jurisdictions within the United States—and South Carolina is one of them—where common law marriage is still recognized.
The legal criteria for establishing a common law marriage varies from one jurisdiction to another, but it typically requires an agreement between the parties to consider themselves married, a sharing of a common residence, a degree of permanence about the relationship, and a public reputation of being married. In some jurisdictions, there may also be a restriction on the degree of relatedness the parties may have . In South Carolina, for example, proof of a common law marriage requires evidence of three elements: present mutual agreement or consent to marry, a mutual intent to be husband and wife, and in some sense, cohabitation. There is no requirement that the couple live together for a certain period of time.
In addition to satisfying these elements, the parties must be able to enter into a valid civil marriage (i.e., they cannot be already married to someone else). The couple cannot be closely related by blood, nor may either party be mentally incompetent or under a certain age (in South Carolina, 16).
It is estimated that approximately ten percent of Americans entering marriage qualify as common law marriages. This is important because common law marriage is valid in only half of the states. Thus, under certain circumstances, a common law marriage may not be valid in another state, such that the parties would not be entitled to a divorce in such state.
Even though it is estimated that fewer people are entering common law marriages, the issue remains relevant to family law practitioners. Notably, there is often a misconception concerning when common law marriages are typically dissolved. Many litigants believe that common law marriages are typically dissolved by case law and require clear evidence of intent to dissolve the marriage. However, this is not the case.
Is Common Law Marriage Valid in South Carolina?
In South Carolina, common law marriage is recognized under limited circumstances. A common law marriage is one in which both parties intend to be married but simply do not take the extra steps of having a formal marriage ceremony and/or a marriage license. In other words, a relationship can be a common law marriage only if the two people both intend to be married and there is a combination of cohabitation and reputation as a spouse. This means everyone in their social circles considers the couple legally married. On May 15, 2019, the South Carolina Supreme Court decided that common law marriage can no longer be entered into in South Carolina. In all likelihood however, a common law marriage which was entered into prior to May 15, 2019 will still be valid. Marriage is now defined under South Carolina law as being "a personal relation arising out of civil agreement and consent". Prior to May 15, 2019, South Carolina courts would recognize a common law marriage when two people agree to be married, cohabitate, and hold themselves out to be a married couple. As stated above, the first two parts of the test is still in the law but the holding out prong is not. Now, a valid marriage can be formed without openly holding out as husband and wife. This applies to both common law and ceremonial marriages. An example of this would be if two people intended to be married, cohabitate, and because they are from a different religion that does not allow for divorce, absolutely refused to tell anyone they are married, it would still be a marriage.
South Carolina’s Common Law Marriage Requirements
Common law marriage requires the couple to fulfill both subjective and objective conditions during their cohabitation. To meet the subjective element, there must be a mutual intention to be married. Courts have found that the intent to be married is established by evidence of cohabitation and public repute of the parties as being married. Both the parties must have the capacity to marry, and there must be evidence that the parties held themselves out to the public as married.
The objective requirement that the parties hold themselves out as married means that their cohabitation cannot be kept a secret. The best evidence of a mutual intention to be married is if the parties hold themselves out for the whole world to see, as being married, rather than simply living together privately.
In addition to the subjective and objective elements, the prospective spouses must also meet the requirements of capacity in that they were unmarried, not closely related and not under the age of consent. A person under a legal disability cannot enter into a valid marriage contract and, thus, common law marriage is not recognized if at least one party was under a legal disability, such as insanity, mental incapacity, etc. at the time of the cohabitation. South Carolina law does not recognize common law marriages contracted after July 24, 2019.
Pros and Cons of Common Law Marriage in South Carolina
There are both advantages and disadvantages with a common law marriage. The primary benefit is that a couple gets the legal benefits of marriage without a formal ceremony and a license. The couple may share health insurance benefits, tax benefits, and inherit if one spouse dies without a Will. One of the main disadvantages of a common law marriage is that South Carolina law does not give a common law spouse standing to sue for wrongful death or personal injury to the other spouse. An example of this would be a car accident that injures a couple where one spouse dies and the other survives their injuries. If the surviving spouse were married in a traditional manner, he or she would have the right to sue for the other spouse’s injuries, loss of marital companionship, medical bills, and lost wages. However, as it currently stands, the surviving spouse who was married under common law would have no standing to assert these claims and recover for these losses. For this reason, it is important for a common law marriage in South Carolina to meet the formal requirements of marriage. If the marriage is found to be valid by a court, the surviving spouse has standing to sue. It is unclear whether or not a common law marriage licensed in another state, and later recognized in South Carolina, would give standing to sue in the above example.
Ending a Common Law Marriage in SC
Common law marriages, once presumed to exist in South Carolina, are now considered invalid. A law that went into effect in 2019 declared all such relationships created after July 24, 2019 to be void. However, this development does not mean that all common law marriages are gone.
Newly formed relationships are not the only ones that can end in divorce. Many people still need to finalize an old relationship that did not follow the typical path of a marriage ceremony and a license. Fortunately, the process of bringing a common law marriage to an end doesn’t differ much from the standard divorce process.
Common law marriages end just like their ceremonial counterparts, following the same process and guidelines. In most cases, the spouse seeking to dissolve the relationship files a divorce complaint and serves it on his or her spouse. Both parties then have an opportunity to respond to the complaint and state their side of the story . From there, the court will usually schedule a pretrial conference, where both parties will work out the terms of the divorce, particularly where children are involved.
As a result, divorce from a common law marriage is much like the process for divorcing a ceremonial union. The responses to the complaint will generally be much like in a traditional divorce case, including requests for equitable division of assets, child custody arrangements, alimony, child support and visitation. Two differences exist, however. One spouse may get an automatic spousal support award with no further court proceedings under state law. In addition, either party can file a motion for a new trial, which the judge will only grant upon showing abuse of discretion.
In actuality, the fact that common law marriage no longer exists in South Carolina should not influence your decision to enter into one of these unions. Even if the relationship has been going on for years, both parties can work through the issues in a divorce like any standard union.
How a Recent Update to SC Law Impacts Common Law Marriages
However, in the early 1990’s the South Carolina Supreme Court began to review prior decisions in this area and adopted a more rigid test. Specifically, a South Carolina Supreme Court decision, O’Neal v. O’Neal, 393 S.C. 471, 482-83, 714 S.E.2d 890, 896 (2011) resulted in the clear abolishing of the common law marriage doctrine.
In O’Neal, the Court rejected its previous "soft" test for common law marriages in favor of a "hard" test requiring that South Carolina law on the requirements for marriage be followed as a necessary prerequisite to a legal marriage. Regardless, recent cases have addressed the issue of cohabitation and property division.
In the recent case of Jacome v. Jacobs, 15-CP-32-2044 (Mar. 1, 2019), the Court of Appeals specifically dealt with some of these issues and held that cohabitation does not equal marriage under South Carolina law. In this case, the couple owned property and construction equipment, but did not enter into a traditional marital agreement or formal marriage ceremony. The Court of Appeals discussed as follows the elements of a common law marriage as they existed prior to O’Neal:
(1) an exchange of consents by each party to enter into a common law marriage; (2) consideration of both parties to the contract; and, (3) an agreement that the relation of [marriage] is established and that thenceforth [the parties] will be husband and wife. Further, a partnership under the guise of a marriage outside the law does not create a marriage. Pope v. Branham, 283 S.C. 158, 160, 321 S.E.2d 182, 183-84 (1984) (citations omitted)(emphasis supplied); quoting Cooper v. Sanders, 1 McCord 45 (1825) (internal citations and quotation marks omitted). After looking at the facts and holding that there was no intention to marry and vacating the trial court’s ruling, the Court of Appeals remanded the case to the trial court for an equitable distribution of the parties’ property. Essentially the parties would divide their property, like in a divorce, without the benefits and detriments of marriage. The clear lesson is that unless you have performed all of the elements required for a marriage, you would be well served to obtain a "divorce" to divide your property.
Examples of South Carolina Common Law Marriage Cases
Over the years, South Carolina’s courts have examined and clarified the intricacies of common law marriage laws through a handful of notable cases.
One of the most significant is Thompson v. Thompson (1897), in which the court explains that common law marriages formed prior to 1962 with few exceptions were valid. (The exceptions are if they were formed in another state not recognizing common law marriage or if one of the parties was a white person who married a member of the Negro race.) This case set the precedent for many of the rules that still apply today.
In ruling on Jones v. Jones (1899), the Supreme Court of South Carolina determined that "cohabitation during a previous marriage [does] not bar a valid common-law marriage after the first has been dissolved by divorce."
In Baumbach v. Brown (1955), the court decided that while no specific length of cohabitation is required for a valid marriage — as it varies from case-to-case — the parties must cohabit in order to prove it. Cohabitation consists of "the living together under the same roof and under the same management , control and direction for the purpose of being a married couple."
More information has emerged on the issue of cohabitation thanks to the ruling in the case of Darby v. Jones (1966). In ruling on this case, the court determined that "each case must be determined by its own peculiar facts and circumstances." This means that, for example, the absence of witnesses is not necessarily fatal to the presumption of a marriage, and the court should consider other evidence, such as the actual behavior of the parties involved, in deciding if a common law marriage occurred.
Anglin v. Anglin (1974) is also helpful in explaining the relevance of witnesses to a common law marriage. Without witnesses, the preponderance of the evidence must show that the parties entered into the marriage with the agreement to be married, that they lived together as husband and wife, and that they renounced their status as single people. When there are witnesses, the court "must find the facts sufficient to create the presumption of marriage," as required by Darby v. Jones.