Common Law Marriage Abolished in South Carolina

What does the Ruling Mean for Cohabitating Couples in the State?

On July 25th, 2019, the South Carolina Supreme Court issued a monumental decision abolishing common law marriage in the Palmetto State. This ruling applies to all common law marriages that would have been established on or after the date the decision was handed down (7/25/2019). Those that existed before this date can still be validated, although the Court heightened the burden of proof to establish their existence.

What is Common Law Marriage?

Common law marriage is a legal doctrine that allows a couple to be considered married by the family court without having to go through a formal ceremony and obtain a marriage license.  While there are no absolute rules or guidelines that determine whether or not a common law marriage exists, there are several elements that are typically needed to prove it. These include:

  • You and your partner have cohabitated for a number of years;
  • You and your partner hold yourselves out to be married to third parties, including friends and family
  • You and your partner demonstrate mutual assent to be married through various objective means, like filing joint tax returns, documents filed under penalty of perjury, public introductions as “husband” or “wife”, joint property ownership, and joint bank accounts.

Why did the SC Supreme Court Abolish Common Law Marriage?

In prospectively abolishing common law marriage in South Carolina, the Supreme Court concluded that the original reasons for recognizing this type of arrangement are no longer applicable in today’s society.

For example, there is no longer a stigma attached to unwed mothers and children who are born out of wedlock. There are also no logistical concerns related to obtaining an official marriage certificate like there were in years past. Today, it is very easy to find a church or local courthouse where a wedding ceremony can be performed.

An overwhelming majority of states have already done away with common law marriage, and the South Carolina legislature has made several attempts in recent years to eliminate it. Ultimately, the state Supreme Court decided that common law marriage is an outdated practice, and that it was time to get rid of it.

What does the High Court’s Decision Mean for Cohabitating Couples in SC?

The Supreme Court ruling eliminating future common law marriages will have a profound effect on many couples who are living together in the state. Now, there will not only be a question of if your living situation constitutes a common law marriage, but when that common law marriage was established. And as mentioned earlier, the standard of proof to demonstrate (the establishment of) a common law marriage before July 25th, 2019 is now higher.

Previously, common law marriage could be shown by a “preponderance of the evidence.” This means that the burden of proof is met when the petitioner convinces the court that there is a better than 50% chance that their claim is true. This is also commonly known as the “more likely than not” standard.

The high court’s ruling establishes the “clear and convincing evidence” standard. This is the same standard used in probate cases, and it requires the petitioner to demonstrate that it is highly and substantially more probable that their claim is true rather than untrue. “Clear and convincing” is not quite as high as the “beyond reasonable doubt” standard used in criminal cases, but still requires substantially more proof than with the “preponderance” standard.

Here are some of the legal areas where a couple that has lived together for a significant period of time (but was never officially married) may be affected by the abolition of common law marriages in SC:

  • Divorce: One of the biggest areas where common law marriage can have an impact on couples is when they decide to part ways. If the couple is considered married by common law, they must obtain an official divorce, which is a legal proceeding that involves division of marital property and potentially alimony and child support, among other issues. If, on the other hand, the couple is not married (as determined by the court), a partner would have far less legal claim to the property of the other partner, and alimony would not be available.
  • Intestate Succession/Inheritance: If someone dies without a will in South Carolina, at least half of their estate goes to the surviving spouse. If there is no common law marriage, however, a cohabitating partner would not inherit any of the decedent’s property.
  • Employment Benefits: If a common law marriage is not recognized, employees will find it far more difficult to include their cohabitating partner on their health plan and other workplace benefits. Employees may also find themselves ineligible to take a leave of absence under the Family Medical Leave Act (FMLA) if their partner has a serious health condition.

The biggest take away from this SC Supreme Court case is that if you consider yourself common law married and want to ensure the status of your marriage isn’t jeopardized in the event of divorce or death of either partner, your safest bet is to go ahead and obtain a marriage license to avoid the potential difficulty of having to prove your marriage in family or probate court later on.

Contact an Experienced South Carolina Family Law Attorney

Many cohabitating couples in South Carolina will be affected by the Supreme Court’s decision to abolish common law marriages, and this ruling will have a profound impact on many family law cases throughout the state. If you are trying to establish a common law marriage or you need help with any other type of family legal matter, contact the Cate Law Firm today. Call us at 864-251-5855 or message us online to schedule a consultation. You may also stop by our Spartanburg office in person at your convenience.

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Cate & Brough, P.A.

At Cate & Brough, we all have personal experience with family law and family court. We know more than just what the law says about your issue – we know what you are going through.

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