South Carolina is one of the few states that still recognizes common law marriages. A common law marriage can be defined as a marriage without a marriage license or ceremony. With the assumption that each spouse is competent to marry, a man and woman who live together as husband and wife with the intent to be married and holding themselves out to the public as married have a common law marriage. This type of marriage is legally the same as any other marriage, with the only difference being they way the marriages were created. There is also no specific time period that the couple must live together to be considered married. It is a typical assumption in the state that the couple who is common law married must have been residing together for at least seven years; however, this is untrue.
What must be proven in a common law marriage is the presence of intent to be married by both parties involved. Examples of evidence that proves intent would likely include living together as a married couple, telling their friends and family that they are married, filing joint tax returns or a woman using the man’s last name in place of her own.
For a common law marriage to be valid, an informal and mutually understood agreement between the man and woman to be married must exist. Once criteria have been met for a valid common law marriage, nothing less than death or a judgment of divorce can dissolve the relationship.
As mentioned above, cohabitation alone is not enough to constitute a valid marriage without the mutual agreement between the parties. In Johnson v. Johnson, the Court stated that “the difference between marriage and concubinage rests in the intent of the cohabiting parties.” Furthermore, the Court stated reasoning as to why no common law marriage existed in Cathcart v. Cathcart. In this matter, the former husband was trying to prove that his former wife and her paramour had entered into a common law marriage so that he could stop paying alimony to her. The Court found that no common law marriage had been created due to the fact that the wife and her paramour “did not refer to each other as husband and wife. Both testified they had no intent to be married to each other. [In fact], the man testified he dated other women. Additionally, they did not file joint tax returns, did not have a joint bank account, and did not receive mail at the same address.”
The impediment to forming a valid common law marriage exists if a couple had been living together as husband and wife before moving to South Carolina in jurisdictions that did not recognize common law marriages at the times they lived there. When this type of couple moves to South Carolina, “it is presumed that their relationship remains non-marital.” For their relationship to become marital, a new mutual agreement either by way of civil ceremony or by way of recognition of the illicit relationship and a new agreement to enter into a common law marriage.”
The issues related to common law marriage typically come up most when the couple decides to divorce. At this point, the Court would be left to decide whether a marriage existed between the parties based on all the evidence, and if it did exist, a South Carolina divorce must be obtained. If the Court were to find that a common law marriage did not exist, the parties would not be bound to each other and neither person would be able to claim belongings or money which belong to the other person because there is no such thing as a common law divorce.
A South Carolina family lawyer can assist you if you have questions about whether you are or have been common law married in South Carolina. The family attorney will review the facts of your case and advise you on your rights under South Carolina law.
If you or someone you know would like to file for divorce, you will need to speak with a good family lawyer in your area. Call an experienced Myrtle Beach divorce lawyer at The Mace Firm to schedule your consultation. One of The Mace Firm’s family lawyers is ready to speak with you about your case.