If you believe that you and your spouse are one of those couples in South Carolina who are secure in your common law marriage, think again. Your relationship may already be heading toward disaster—that is—if a recent bill proposing to illegalize such marriages becomes law during the next legislative session.
In an ironic twist of fate, Bill # 60, currently working its way through the Senate Judiciary Committee, proposes to put an unceremonious end to a whole body of case law which for many years has allowed the celebration of common law marriages despite the very lack of wedding ceremonies, formal vows or even marriage licenses.
However, don’t go packing just yet. Legislative cogs are notorious for creeping along very slowly, and the newly proposed law has proven no exception.
At least three identical versions of this bill have been floating around since at least 2005. To this day, the second such bill sits languishing in the State House of Representatives even though a majority voted to pass it into law after the first of its three readings.
So, for now at least, your common law marriage remains on the same solid footing as those enjoyed by other like couples who occupy the same relation in those dwindling number of states still recognizing the faltering institution (nine at last count).
This topic remains newsworthy because so few people understand what it takes to enter into a common law marriage. Furthermore, case law defining this age-old-institution and the potential legal effects of its possible abolition can be quite complicated, even for those of us who are paid to figure this kind of stuff out.
Surely, against such a backdrop, we all can see how important it is to know your family’s legal rights and obligations.
First of all, I would like for each of you who believes that that simply living together for seven years establishes a common law marriage to consider this: The length of time you and your significant other have spent together means entirely nothing.
Instead, the key to forming a common law union lies in the language of contract law, inasmuch as the legality of the relationship is established if a couple satisfies the following four requirements:
1) They must mutually agree to live as husband and wife.
2) Both must have the legal capacity to enter into the marital relationship.
3) The two must cohabitate (live together) however briefly and finally.
4) The couple must hold themselves out to the public in ways tending to show that they are indeed married.
It’s as simple as that.
In fact, proving these four elements has been historically so simple that many divorce cases over the years have been successfully premised on the existence of a common law union, even though the party being dragged to court was not so sure that he or she was even married in the first place!
The reason for the confusion is simple. Evidence establishing intent by a man and woman to be married is often circumstantial or ambiguous. For example a simple note by one party to another which is signed “your loving spouse” or perhaps, a card addressed “to my loving wife” each tends to evidence some intent to be married, even if the message might have been originally intended to convey only a sense of warmth, closeness or endearment.
To make matters even more confusing, the requirement that a couple held themselves out as being married has consistently proved quite easy to establish in court. In fact, little more than introducing yourselves as husband and wife might alone be sufficient. Other examples of holding each other out as man and wife include such common practices as filing joint tax returns, using the same last name, maintaining joint banking accounts or owning properties jointly.
The requirement of cohabitation is likewise so very simple to establish, inasmuch as the term has been defined over and again in South Carolina jurisprudence as the simple act of living together.
Stranger yet, South Carolina appellate case law appears to support the notion that a common law marriage may be established when the parties living together never even consummated their relationship by engaging in sexual relations!
The final requirement of “capacity to enter into marriage” proves no real obstacle toward successfully establishing a common law union, precisely because the same thing is expected of those who have instead chosen in enter into the more traditional “statutory” marriage.
In short, both parties must be of legal age, which in South Carolina means between the ages of 16-18 years old, depending on the circumstances. Neither person can be currently married to someone else; and of course, neither may be incompetent, which really means little more than knowing what you are getting into.
It does bear mentioning that South Carolina does not yet recognize the capacity of “same sex couples” to marry in either the traditional or common law sense, despite the growing national trend toward legitimizing these “alternative” relationships.
And for the morbidly curious, South Carolina law still permits a person to marry his or her first cousin—by common law or ceremony—just so long as the cousins wanting to marry are not of the same sex!
Well, that’s pretty much the skinny on how you go about entering into a common law marriage in the state of South Carolina. The more painful questions arise when it comes time to figure out what to do when the marriage just isn’t working out anymore and the possibility of separation or divorce looms menacingly over the horizon.
It’s important to know agreeing to be married at common law doesn’t also mean that you have the right to end that same relationship by agreeing with your spouse not to remain married anymore. If you try to go that route and then later remarry, you will be committing the crime of bigamy—no question about it. Likewise, you will find no luck in moving to another jurisdiction to escape your marital obligation because almost every state has a law on the books which recognizes the validity of any marriage that was legal where the parties originally wedded.
If you believe your own marriage is in doubt or danger, I strongly suggest that you consult with a competent lawyer of your own choosing. Speaking with an attorney as soon as you perceive a more serious problem might very well make the difference toward assuring that your rights are adequately protected over the wide range of property, debt, support and custody related issues specific to your own possible separation or divorce.
That being said, I personally believe that common law marriage in the state of South Carolina is on borrowed time. If, and when, the law changes, I also fear that many who enjoy common law union may face the very real danger of losing out on the rights and benefits of marriage.
So, if you do happen to be one of the happily married, I strongly encourage you to drop a knee right now and propose the idea of taking the steps necessary to further cement your otherwise good marriage. You can get it done before the law changes by obtaining your marriage license and paying a visit to your local minister, rabbi or notary public, who should be more than happy to help you reaffirm your vows.