- January 15, 2016
Many people have a general understanding of common law marriage, but are somewhat fuzzy on the details. In a common law marriage, a couple live together and represent themselves to others as being married, but have not obtained a state-issued license and held a formal ceremony. Typically, common law marriage has been between a man and a woman, but now that same-sex marriage is recognized nationwide it should become increasingly available to same-sex couples as well, at least in those states where it is permitted.
Only a few states, however, recognize common law marriage as a lawful form of marriage. South Carolina is one of them. Section 20-1-360 of the South Carolina marriage law states that nothing in that statute, which addresses the procedures for obtaining a marriage license, is intended to make any marriage contracted without a license illegal. In states where common law marriage is allowed, a couple in an established common law marriage enjoys the same rights as a couple in a marriage that has been formalized by a license and ceremony, including the ability to turn to state laws regarding divorce in the event they separate.
Why is common law marriage important?
As noted above, a couple in an established common law marriage is treated the same under state law as a couple who has been formally married. This is important because, unless the spouses can prove a common law marriage exists, they cannot take advantage of the benefits provided by the state’s divorce laws, including the rights to an equitable division of property, child custody, child support, and alimony. Similarly, if one of the spouses should pass away, the other can only inherit under state law in the absence of a will if a valid common law marriage is established. Proving common law marriage can also be important for obtaining insurance and other benefits, such as Social Security.
How is a common law marriage proved?
The following things must be true for a valid common law marriage to exist. Both parties must:
- hold themselves out to family, friends and their community as married;
- intend to be presently married, or consider themselves married;
- be legally eligible to be married (e.g., not children or close relatives prohibited by law from marrying); and
- cohabit for some period of time.
There is no prescribed period of time during which a couple must live together to prove a common law marriage. Additionally, neither spouse can be married to any other person.
A court will look to all the circumstances surrounding a relationship to determine whether that relationship counts as a common law marriage. To begin with, the parties must have told other people that they were married. Additional factors might include:
- sharing a last name;
- filing joint tax returns;
- opening joint bank accounts;
- buying property together; and
- entering contracts jointly.
Because there is no difference under the law between a couple who has been formally married and one who is married via common law, if you are in a common law marriage you must get a divorce before you marry someone else. Otherwise, your next marriage will be illegal.
Consult a Greenville Family Lawyer
If you are contemplating separating from your partner and have questions about the legal status of your relationship, Greenville family lawyer Robert Clark can help. Attorney Clark has the experience and sensitivity to assist you with any family law needs. Contact him at Greenville Family Law for a consultation.
