A brief guide to common law marriage in South Carolina
Until January 2011, South Carolina used to be one of only ten states which recognized common-law marriages.
While most married couples choose to obtain a license from the state to make sure their relationship is recorded, common-law marriages in South Carolina were not formally documented.
Two qualifications had to be met in order for such a relationship to be recognized by the court.
However, South Carolina’s common law marriage has an exception if it existed as of December 31, 2010, and be able to repeal section 201360 relating to the validity of a marriage contracted without a marriage license.
Spouses were considered to be involved in a common-law marriage in South Carolina provided that:
• They consider themselves to be married and both spouses present themselves in such a fashion to friends and family
• Two spouses are eligible to be married. For example, since underage children cannot be legally married in the state, they may not enter into common-law marriages in South Carolina.
This last requirement has many implications. For example, two people who are legally married others are not involved in a common-law marriage in South Carolina even if they represent themselves to others as husband and wife.
Even if they are divorced from their partners at a later time, this will not mean that their past cohabitation qualifies them for this kind of status. South Carolina law on marriage requires both spouses to affirm their new relationship after they have separated from previous partners.
There are many ways in which such a relationship can be established. People who are involved in a common-law marriage in South Carolina may take their partner’s last name as their own, file joint tax returns, and otherwise establish their relationship.
This kind of proof will be crucial if spouses decide to divorce. Ending common-law marriages in South Carolina through the legal system can be difficult if it cannot be established that a couple was involved in this kind of relationship.
When seeking this kind of divorce, establishing that such a relationship existed will be a necessary prerequisite to petitioning for alimony payments, arranging child custody, and managing other such issues.
Witnesses may be called in to testify that both partners presented themselves as being partners in a common-law marriage in South Carolina. Furthermore, someone who enters into this kind of relationship cannot enter into another similar partnership without formally divorcing. Failure to legally terminate common-law marriages in South Carolina can be grounds for charges of bigamy.
It is important for any spouses involved in such a relationship to create a will documenting their wishes regarding the division of their property in the event of their death.
This will help to ensure that if you wish for your partner in a common-law marriage in South Carolina to receive part or all of your estate they will be legally entitled to do so. Failure to take this step may require your spouse to go to probate court to establish their claim to your assets.
This will require an heir to establish that their common law marriage in South Carolina was legally valid.