South Carolina Abolishes Common Law Marriage

On July 24, 2019, the South Carolina Supreme Court abolished common law marriage in the state. The practice allowed unmarried couples to claim they were married if, among other requirements, they lived together long enough. South Carolina now joins the majority of states which have done away with common-law marriages.

South Carolina Supreme Court Justice Kaye Hearn made it clear that the ruling only applies prospectively, not retroactively. In other words, it does not apply to couples who are already considered common-law married under state law. All future marriages in Greenville, South Carolina, however, will require a license.

The court’s decision arose from a Charleston County case involving a man and woman who began living together in 1989. The two split up in 2012, and the man wanted a divorce and an equal split of the couple’s assets. While the man claimed that the two were common law married, the woman denied it. The court ruled unanimously against the man, citing, in part, conflicting evidence of their status.

Before the decision, there were several requirements for a couple to be considered common-law married in Greenville, South Carolina:

  • Eligibility for marriage: The partners should be of legal age and unmarried. They cannot be brother and sister.
  • Cohabitation: The partners should live together as husband and wife, sharing household duties.
  • Marriage intention: The parties must have agreed, formally or informally, to get married
  • Reputation: Both partners should behave married and refer to one another as husband and wife

Of these elements, at least the last two were contested in the recent case. The Supreme Court concluded, for instance, that there was insufficient evidence of mutual intent to be married. Although some friends testified that the two held themselves out as husband and wife, others denied this. The couple also never filed taxes jointly, and their medical records did not resolve the ambiguity.

The decision stems, in part, from the decreased significance placed on marriage by our society. There was once a stigma of two people living together who were not married. With this stigma all but erased, many people simply do not care about their friends’ marital status. This was seen in the Charleston County case. Justice Hearn contended that common law marriage forced courts into the difficult role of guessing two people’s intent. “The solemn institution of marriage is thereby reduced to a guessing game,” she wrote.

The decision has implications for unmarried couples in Greenville, South Carolina who are considering moving in together and commingling property. Abolishing common law marriage may make it more difficult for unmarried couples to claim an equitable division of assets. Now that all married couples must have a license, they can no longer rely on a court divining their intent. The clearest way to express marital intent, and commitment between two people, will be by obtaining a marriage license.

Many Greenville, South Carolina family law attorneys have applauded the court’s decision, which they believed was long overdue. The state’s General Assembly has tried and failed for at least 20 years to abolish common law marriage. By the Supreme Court’s estimate, fewer than 10 states still allow the practice.

We Can Help With Marriage and Family Law Questions

Although the Supreme Court’s decision does not affect current common-law marriages, many unmarried couples may have concerns about it. The attorneys at Greenville Family Law can help. We have experience with all aspects of divorce and family law. Our firm can also assist couples who have questions about agreeing to split property using such tools as prenuptial agreements. Give us a call today for any marriage and family law needs.

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