Common Law Marriage Explained
Common law marriage, a legal concept that originated in England, permits couples to become legally married without a civil or religious ceremony, provided certain criteria are met. Generally, to be legally recognized as married under the common law, the involved parties must cohabit in the same household and have a valid, mutual intent to be married. Furthermore, spouses must have the capacity to enter into a valid marriage and they must cohabit in a jurisdiction that recognizes common law marriage, for the requisite period of time. The relationship can be established by evidence of the couple living together as a married couple and holding themselves out to the community with the intent to marry . Some states recognize common law marriage for legal purposes such as insurance and inheritance. Almost every state began to abolish common law marriage by statute after 1900; however, some states continued to recognize it until 2010, when Montana became the last state to enact legislation abolishing the common law marriage doctrine. Not all states permit common law marriages, and those that do have different requirements. For example, while South Carolina requires cohabitation before common law marriage is established, Colorado requires joint residency. Whereas, in Utah you must cohabit, hold each other out as a spouse, and express to others the intent to be married.
The Present Legal Status in the Palmetto State
Common law marriage is not recognized as valid in South Carolina. As a matter of law, a couple in South Carolina cannot establish a valid common law marriage. A couple cannot validly create a marriage without satisfying the statutory requirements for marriage. Section 20-1-15 of the South Carolina Code requires that marriage is solemnized by a magistrate or minister and that the couple obtain a license and pay the required fees. Since a common law marriage is not solemnized and there is no license, there cannot be a valid common law marriage in South Carolina.
However, in 2009, the South Carolina Supreme Court held in Cornish v. Corley et. al. that the presumption of a valid marriage can exist even when the law does not recognize common law marriage. That is, if the status of a marriage is in dispute, and if the parties to the dispute have engaged in conduct consistent with marriage, then that conduct creates a rebuttable presumption of marriage.
In 2010, the Court issued two opinions that further defined the common law marriage in South Carolina. In Metts v. Metts, the court reaffirmed its decision in Cornish v. Corley and indicated that the rebuttable presumption of marriage applies to those parties asserting the existence of a valid marriage as well as to parties challenging the validity of the claimed marriage. In Town of Mt. Pleasant v. Codding, the court gave guidance on the types of evidence that may create a rebuttable presumption of marriage. These two cases indicate that a claim of common law marriage will be analyzed by the same contract principles applicable to all other contracts to support the proposition that the existence of a legally recognized marriage lessens the need for formalities that ritualize that marriage.
The court has not addressed how the concept of constructive marriage applies to non-marital, cohabitation relationships like those between same-sex, unmarried couples that are recognized in many other states.
Criteria for a Common Law Union in South Carolina
Before the law changed in 2019, to establish a common law marriage in South Carolina the couple must have met the following requirements:
First, the parties had to enter into a lawful marriage contract in South Carolina. The parties did not need to actually enter into a formal ceremony of marriage. They simply needed to enter into a valid marriage contract, à la a common law contract.
Second, the parties must have lived together as husband and wife. There was no mandatory period of cohabitation. It was alright if the parties only lived together for a short time, or an extended period. The length of the period did not affect the validity of the marriage. Parties could live together for a week and be deemed married, or live together for years and not be married.
Third, the parties needed to consider themselves married. There had to have been a mutual understanding of the other. Essentially, the parties would need to have intended to be married and publicly hold themselves out to be married.
Finally, as discussed previously, as of 2019, the parties must have been married prior to 2019 in order to claim the existence of such a marriage. Otherwise, parties who would like to claim the existence of a common law marriage after that year would need to marry through a formal ceremony and eventually get a deed of conversion from a judge to convert their lawful marriage into a common law marriage.
How to "Create" a Common Law Marriage Before the Law Changed
Prior to the law change, South Carolinians, and even lawyers, were often confused over whether common law marriage existed, or after February 19, 2019 when it was abolished, whether it had been created prior to that date. Because of this, before the law changed, many of my clients believed they had a common law marriage and wanted to establish the existence of such a marriage in case of a divorce or death.
Subsequent statutes and cases had eroded at common law marriages, and the probability the Court would determine a common law marriage existed was low. Courts had begun to require a marriage license and formal celebration of marriage, but there have been instances when no marriage license was required. One important example is if the parties moved to South Carolina from a state where no marriage license is required. Cases now examine the evidence of marriage and decided whether a party could establish that a common law marriage existed. Because the prior law implied a marriage license was required, after the law was changed to outlaw common law marriages, many lawyers concluded that no common law marriage could be established, despite the reformation of section 20-1-360 to recognize that a marriage may be established by clear and convincing evidence that a prior common law marriage was created prior to February 19, 2019.
In the past, to establish a common law marriage one party had to provide evidence of the common law marriage existed that did establish the relationship. Now, that one party must show the relationship is a marriage under S.C. Code Ann § 20-1-360, unless the other party contests it in a timely manner.
Rights Acquired Through Common Law Marriage
While short-lived unions may be commonplace, there are often lasting effects that are more consequential than once considered when a couple is cohabiting as husband and wife without the benefit of marriage. It is important to understand how rights and responsibilities can differ significantly for a married couple and a common law married couple, especially if the relationship ends or there is a change in circumstances, such as the birth of a child. A marriage must be dissolved through a divorce action in Family Court before either party is free to remarry. Common law marriage in South Carolina is no different than any other marriage with regard to ending the relationship. If the parties have been together for not less than a year, the parties have the same rights to alimony and equitable distribution of marital property as parties who are statutorily married . Disputes involving child custody, visitation, child support and responsibility for unreimbursed medical expenses and medical insurance coverage are treated differently than if the parties were registered with vital records as being married. This is because children born, or conceived during a marriage, with very few exceptions are presumed to be the biological children of the parties while the presumption does not extend to children born before or after the marriage. The presumption does not shift merely because the parties cohabitate. South Carolina Courts have the public policy interest in protecting the best interests of children and unless the parties have legally married, have raised children together, are separating and have chosen to end the relationship, the Courts do not afford the parties jointly standing to raise issues concerning their children.
Converting from Common Law to Legal Marriage
The most straightforward method for transitioning from common law to legal marriage is for couples to marry formally through a civil or religious service. However, couples in a common law union may need to obtain documentation proving the legitimacy of this type of marriage before they can legally wed.
For instance, if a couple can establish income and tax-sharing while living together, they may obtain a joint tax return from the IRS and request a statement from their employer verifying that they shared expenses and lived together in the same residence.
A couple who has registered a joint vehicle in both names may print a copy of the vehicle registration record as proof of their cohabitation.
If a couple has joint bank accounts, they can print recent bank statements which provide the date they opened their accounts, how long they have been open at the time of printing, copies of their monthly statements and cancelled checks.
Finally, a couple may be able to print copies of their credit card statements, once again showing the date the account was opened along with statements dating back several years to demonstrate length of a shared relationship. Important information to provide includes the individual names printed on each credit card as well as the combined name appearing on the joint credit card account.
According to South Carolina law, a couple in a common law union may be required to submit an affidavit that states they agree to be married and that they intend to marry in the near future. In this case, the couple is required to furnish their marriage license within 60 days.
Practical Advice for Couples Seeking Recognition
As noted above, there are situations where the evolution of the law leaves the status of an unrecognized relationship at best uncertain. In those situations, unless the relationship is blatantly and obviously to all observers a conventional marriage, we advise couples to take proactive steps to establish or formalize the marital status that existed. South Carolina has no formal common law marriage recognition process that a couple can jump in that will create the protection that a license issued marriage would have provided. However, there are at least two ways to accomplish the creation of a "marriage" if a couple has been in a long term committed relationship.
These are: (1) having an attorney prepare a declaration of marriage document that both parties sign, that sets forth the history of their relationship, the intentions of theirs to be with each other forever, and the fact that they want their union to be recognized as a marriage, and/or (2) deliberately entering into another marriage either by license and ceremony, or by a covenant making ceremony such as entering into a "rededicatory" ceremony before your local priest that you then tell everyone who asks that you finally "got married." These options have become increasingly common in custody and support cases. Unfortunately, some situations lend themselves better to some of these options than others. In particular, it may be difficult for the party who believes himself or herself to have been married to reconcile that they are no longer in a relationship in which they believe they were married with what they perceive to be an erroneous conclusion that they were not. This is a problem that is particularly acute for the spouse who fully intended to be married, but whose partner later reneged on the deal and now denies the prior existence of a marriage which the spouse fully intended to enter. An extra eye is often very helpful in looking at this situation. The parties might want to use separate lawyers and enter into a settlement agreement where they agree to enter into a declaration of marriage. When the husband goes to court to get a dissolution of marriage where a spouse objects he can show to the court that there was a prior marriage that should be dissolved. This may help resolve some of the issues and is an option worth considering. But the problems faced by a couple in this situation are complex, and so consultations with experienced marriage and divorce lawyers can help ground a plan that will lead to a resolution acceptable and valid in the eyes of the law.
Common law relationships are getting to be more and more of a headache to the legal system. Courts and lawyers faced with a common law experience that is not able to return to that prior time and place or that does not allow for consent to "splice the mainbrace and sail on" are left behind answering the question that vexes us from the start of this blog. When we are forced to answer that question about a common law marriage, are we "honoring or abjuring"?
Legal Help and Resources
If you have questions about whether common law marriage may apply to your situation, the best course of action is to immediately consult with a South Carolina licensed attorney. There are no forms online that can solve problems for you. Only a lawyer can provide you with competent legal advice that is tailored specifically to your needs. An experienced South Carolina estate planning lawyer can help you understand your rights and protect your best interests. A thorough review of your particular situation will allow your lawyer to determine whether or not a common law marriage is applicable in your case . Your estate planning lawyer can also provide you with the documentation you need to use your property as you wish, whether a common law marriage exists or not. South Carolina legal aid and assistance programs offer legal advice for families in crisis and even individuals who have been denied benefits because of applicant issues. There are multiple lawyers and pro bono attorneys that volunteer their valuable time to help residents who cannot afford to hire an attorney in areas such as consumer scams, debt collection, foreclosure and medical debt. Most legal aid clinics are only available in Charleston, Columbia, Spartanburg, Hilton Head, Myrtle Beach, Rock Hill, North Augusta and Anderson.