One of, if not the most common misconception that South Carolina family law attorneys hear revolves around “common law” marriage. Does it exist? Do you have to live together for 7 years? These are questions that we, as family court practitioners, hear all too often.
You may or may not be surprised to know that YES, South Carolina does still recognize “common law” marriage. There is no difference between a “common law” marriage and a traditional marriage ceremony with a marriage license. South Carolina Code Section 20-1-360 allows for “marriage contracted without the issuance of a license.” Where the difference lies is how the parties become married. A long history of case law in South Carolina has condensed the requirements of common law marriage into a 2-prong test: (1) that the two persons are eligible to be married and that (2) they both have the present intent to be married to each other.
The first prong, that the parties be “eligible” to be married, is the easier of the two to distinguish. To be eligible, there must not be any impediments to marriage. This includes being over 16 years old, being legally able to married (i.e. not still married to another person), and not a prohibited marriage (i.e. between family members).
The second prong of the test requires proof of the intent of the parties. This “present intent” to be married is generally proven by evidence proving that the parties were cohabitating, and holding themselves out, publicly and privately, as married. The parties must cohabitate for some period of time; however, there is NO time requirement of 7 years, as often wrongly believed. Even more difficult to prove is the parties “holding themselves out as married.” This can be proven by witnesses or evidence showing that the parties acted as if they were married, such as wearing wedding rings, using the same last name, listing each other as “spouse” on documents, filing joint tax returns, etc.
Another misconception with more serious consequences is that a couple that is “common law” married does not have to go through a traditional divorce. Remember – South Carolina law considers a couple married by common law to be married just as if they had a license. So, regardless of how you were married, you must get a divorce. Although the dissolutions of common law marriage require more proof of the existence of a marriage, they also include the same issues as “traditional” divorce: division of property, custody of children, or spousal support. Moreover, failing to terminate a common law marriage with a divorce can sometimes inadvertently cause either or both spouses to commit bigamy if they attempt to remarry, and could create even more problems with all parties involved.
If you have further questions regarding common law marriage in South Carolina, or any other issues regarding divorce, separation, custody, or other family law matters, call us today for an in-depth consultation.