What is a Common Law Marriage in South Carolina?
The couple does not need to draft a written contract, and they do not need to agree to specific terms. The agreement to marry can be inferred from the circumstances. There must be " mutual assent. The couple must live together in "apparently matrimonial cohabitation," meaning that, while they are " cohabiting ," they "hold themselves out" as being married and have a reputation in the community of being married.
Cohabitation and a reputation or marriage creates a " rebuttable presumption " that the couple have created a common law marriage in SC. For example, if one person is already married to someone else, they cannot legally marry a second time - otherwise, the law would permit bigamy which is a crime. Once the impediment is removed, the relationship does not automatically become a common marriage in SC. If the couple recognizes the former impediment and enters a new agreement to be married, then a common law marriage can be formed.
In , the U.
Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to:. This means that LGBTQ couples can enter a common law marriage in SC, with the same requirements that already apply to traditional common law marriages. If a common law marriage was formed, same-sex couples in SC should have the same rights and responsibilities as heterosexual couples, including the right to inherit or receive death benefits, and the right to marital distribution or alimony in divorce proceedings.
The full faith and credit clause of the US Constitution requires every state to honor judicial decisions from the courts of every other state - including common law marriages. So, although most states do not permit common law marriages, they must recognize a common law marriage that was formed in SC. If you are in a common law marriage and you are considering separation, you may need to file a divorce action to dissolve the marriage. Your Myrtle Beach divorce attorney at Axelrod and Associates can help you to determine whether you meet the requirements for a common law marriage and whether you can seek alimony or other benefits in your divorce proceedings.
Call now at or email our office to talk with a SC divorce lawyer on the Axelrod team today. Please enter a valid e-mail address. Please enter a valid email address. Please verify that you have read the disclaimer. The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. Consultations will be evaluated on a case by case basis.
Common Law Marriage in South Carolina
Please note that some consultations may require a consultation fee. Please contact our office for further information. Myrtle Beach Office N. Oak St. This ruling is prospective only. This means that common law marriages based on conduct before July 24, may still be found to be marriages under South Carolina Law. Common law marriages already established are in tact. We likewise decline to exercise our prerogative to apply our ruling today retroactively.
We see no benefit to undoing numerous marriages which heretofore were considered valid in our State, and we will not foreclose relief to individuals who relied on the doctrine. Accordingly, our ruling today is to be applied purely prospectively; no individual may enter into a common-law marriage in South Carolina after the date of this opinion.
South Carolina Abolishes Common-Law Marriage
A common law marriage is a marriage between two people without a formal wedding ceremony. South Carolina recognizes common law marriages. This is unusual. Common law marriages are rare. In fact, over the last century, 27 states stopped recognizing common law marriages within the state. Alabama stopped recognizing them this year!
Most states that recognized common law marriage were the pioneer states. As people moved west to Kansas, Colorado, and California, new states and territories recognized common law marriages.
How Do Courts Decide Common Law Marriage in SC?
Why is that? Because the new states and territories had low populations. Most people lived far away from each other. And, there were few churches on the prairie. This made it difficult to get a pastor to preside over the wedding. So, states allowed men and women to form common law marriages. Many states, including South Carolina, still recognize them to this day. Follow us on Twitter and Facebook! There are 4 requirements for forming a common law marriage in South Carolina:. Believe it or not, marriage is a contract with your spouse.
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When you get married, you agree to support your spouse. Your spouse also agrees to support you. Think of the vows you took, or will take some day. You make this contract by your vows at a wedding in a normal wedding. In a common law marriage, you and your spouse make the same agreement. First, you and your spouse must agree that you are married to each other.
You agree to support each other. Agreeing to a common law marriage is very lax. You need to have capacity to agree to a marriage. This means you must be capable of agreeing to the marriage.
You and your spouse must be in the right state of mind to enter into a marriage. Like we said above, marriage is a contract.
Likewise, you have to be legally competent to enter into a contract for marriage. This means that a person must be at least 18 years old in a common law marriage. They also have to be mentally competent. You may not be capable of agreeing to get married if you are drunk or intoxicated! You have to live together in the same house or apartment for a common law marriage. When the South Carolina courts have looked at whether a common law marriage is valid, it often looks to how the couple lives together.
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Put simply: Are you living together like a husband and wife? Do you share the same bedroom? Has your spouse moved some of their things to your house? Things can get complicated if you live apart for part of the marriage, though. In , the South Carolina Court of Appeals had a case about a common law marriage. It focused on whether two spouses lived together.
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John and Lori met in June She had to spend a lot of nights at the park because of her job. In November , John bought engagement and wedding rings for Lori. The couple went to Charleston in December During their Charleston trip, John gave Lori both rings. With both rings, Lori considered themselves married from that point on. But unfortunately, John died without a will one month later. Lori went to court to prove she was in a common law marriage with John so she could inherit from him.
There are a lot of ways to do this. You also can join finances by having a joint bank account. Courts even found that introducing your spouse as a husband or wife is enough! Also, filing a joint tax return is enough for a common law marriage. If you try to renege on that, you can get into big trouble. Married couples get different tax benefits than single people. Common law marriage has a certain mystery to it.
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