What is “Common Law Marriage” in SC?

So often I hear people talk about being “common law married” and what they think it means. Often people have been misguided about what common law marriage is.

I once heard someone say if a person spent one night with another person, they were common law married! If that were true, there would be a lot of common law marriages in South Carolina, not to mention a lot of bigamy!

Setting all jokes aside, common law marriage is real in South Carolina, and has the same weight as a marriage that was obtained by a marriage license.

Common Law Marriage Basics

The Definition

So, what is common law marriage? Common law marriage is where a couple is considered to be married without a marriage license. You don’t even have to have a ceremony! It is a marriage by all other meanings of the word.

Creation

The next question you are probably asking is how a common law marriage is created. Some people may be sweating at this point anxiously awaiting to figure out if they are “common law married.” Calm down a bit; there are certain requirements that must be met before people are common law married.

To create a common law marriage in South Carolina:

1. There must be no impediment to marriage, you must be able to get married.
2. The couple must cohabit, that is, live together.
3. There must be an intent to be married. There must be a mutual understanding of your shared intent to be married. I know, some of you were relieved to read that last one.
4. You must present to the public that you are married. You must “hold yourself out” as husband and wife.

Although these requirements are not all inclusive, as there is no exact list provided by statute, these are the elements that will need to be shown to establish a common law marriage.

Determining if a Common Law Marriage Exists

Who says if someone is common law married? A judge will weigh all circumstances of the relationship to determine if a common law marriage exists.

Evidence of common law marriage can include filing joint tax returns, changing your last name to your spouse’s last name, having insurance policies naming the spouse as a spouse, sharing children, referring to each other has husband and wife, sharing household responsibilities, and/or having joint bank accounts. While none of these things are required, they are common evidence presented to establish a common law marriage.

Common Questions About Common Law Marriage:

1. How is a common law marriage different from traditional marriage?

It’s not different from a traditional marriage in any other way than the way it was obtained. People who are common law married have the same legal benefits as those who are traditionally married.

2. If I’m in a common law marriage and want to get divorced, do I have to get a traditional divorce?

Yes. There is no “common law divorce”. If a couple is common law married, they must get divorced through the family court if they no longer want to be married.

3. My partner and I have been engaged for several years, and meet all the requirements of a common law marriage. Do we have a common law marriage?

Probably not. You probably do not technically meet all of the requirements as there is no agreement to currently be married. Being engaged is evidence of no intent to be common law married since it provides intent to be traditionally married, but it hasn’t happened yet.

Have questions about how common law marriage works?

Common law marriage is hard to understand sometimes, especially given the misinformation that is often thrown around about it. Some people think you have to live together for a certain number of years to be common law married. That simply is not true. There is no time requirement in South Carolina.

Another thing people take for granted sometimes is that common law marriage is actually a marriage. You don’t just get to walk away when you’re done feeling like you want to be married. If people are common law married they must get divorced, and there may be marital property, marital debt, an alimony obligation, and all the other things that come along with any marriage.

Seeking legal counsel to help determine if you have a common law marriage or to dissolve a common law marriage can help protect your interests and even prevent a future marriage from potentially being invalid.

If you have questions about divorce or are looking for a family law attorney in Summerville, South Carolina give me a call at 843.970.2929 or send me a message by completing this form.