CHARLESTON, SC AND SUMMERVILLE, SC FAMILY LAW AND DIVORCE ATTORNEY
The State of South Carolina is still one of a few states that recognizes the doctrine of "Common Law Marriage." Often when I am asked about common law marriage, clients speak of it as if it is some type of marital Bermuda Triangle that is a hybrid of romance and mystery. The fact is, from a legal perspective, that common law marriage is 95% identical to all other marriages. The only primary difference that exist between common law marriage and other marriages is how they are formed.
WHO CAN BE IN A COMMON LAW MARRIAGE IN SOUTH CAROLINA?
Anyone who who is eligible to receive a marriage license in South Carolina is also eligible to be a partner in a common law marriage.
HOW IS A COMMON LAW MARRIAGE FORMED IN SOUTH CAROLINA?
In a traditional marriage, South Carolina law requires that the partners apply for a marriage license through the appropriate Probate Court at least 24 hours in advance of a wedding ceremony to be performed by a sanctioned officiant. The exception to the licensing requirement is found in the statutes at South Carolina Code Ann. Sec. 20-1-360, which states that a formal marriage license is not required in order for a marriage to be recognized in South Carolina.
In South Carolina, there are several key factors that Family Court will look at in order to determine if a common law marriage exists:
- The length of the relationship between the parties
- The parties hold themselves out to the public as being married
- The parties conduct transactions with private parties and the government as being married.
One common misconception in the public at large is that a couple can become "common law married" simply by eloping and being in a relationship with cohabitation for a set period of time. This is not true. In addition to some longevity in the relationship, South Carolina Family Courts usually look directly into the intent of the parties and how they conducted themselves in their public life.
Evidence of being common law married would include:
- The parties introducing themselves as spouses to the general public
- Filing of joint tax returns
- Opening of joint bank accounts and retirement accounts
- Memberships in clubs and organizations as spouses
Any person / persons seeking to prove the existence of a common law marriage must do so through clear and convincing evidence. This standard of proof is fairly high in a civil matter.
SO . . . IF I SATISFY THE ELEMENTS I'M COMMON LAW MARRIED RIGHT?
Not yet!! Believe it or not, in order for a common law marriage to exist, in terms of legal recognition by the State of South Carolina, the common law marriage must be declared by a state court of competent jurisdiction. In other words, you are not in a common law marriage until a court in the State of South Carolina (most often Family Court) declares that a common law marriage exist.
The irony in having a common law marriage recognized by a South Carolina Family Court is that this recognition is often made in the context of a divorce proceeding. Confused yet? Here is what I mean. Partners have held themselves out to the public as being married for years, yet never applied for a marriage license or had a ceremony performed. At some point in the relationship, one party files for a "divorce" from their common law spouse and seeks alimony and an equitable division of the marital assets. The other spouse claims that a ground for divorce does not exist, because they were never married. Therefore there can be no divorce and no award of alimony or assets. So . . . In order for the filing party to receive a divorce and the appropriate support incident to the divorce litigation, he / she will first need to prove that a common law marriage existed.
One more important note . . . Once legally recognized, a common law marriage can only be dissolved by a divorce!!
Ahhh . . . The Circle of Life!
WHY WOULD I WANT TO GET LEGAL RECOGNITION OF MY COMMON LAW MARRIAGE?
There are several compelling reasons to seek legal recognition of a common law marriage:
- Inheritance rights as a spouse (right to inherit under intestacy laws and or take the spousal elective share)
- Real property rights (joint tenancy and / or tenancy in common for land and home)
- Entitlement to benefits (depending upon the length of the marriage, spouse may be eligible for survivor benefits from Social Security or Military / VA)
In addition to divorce, the issue of common law marriage most often comes up when a surviving partner is trying to establish a common law marriage to protect inheritance rights and survivor benefits. One important thing to remember though, is that there are time limits on when a surviving partner can establish a common law marriage. South Carolina Code Ann. Section 62-2-802(b)(4) states that a person can not be a surviving spouse unless:
- The adjudication for the existence of a common law marriage was initiated prior to the death of a decedent; or
- Within the later of 8 months after the death of the decedent, or six months after the initial appointment of a Personal Representative in decedent's probate estate
Remember, it doesn't have to be Family Court that recognizes a common law marriage. Any court of competent jurisdiction in South Carolina can establish legal recognition of a common law marriage. Therefore, a Probate Court is well within its bounds to litigate the issue of common law marriage in the conduct of a formal probate.
THE MCMILLIAN LAW FIRM - CHARLESTON, SC AND SUMMERVILLE, SC FAMILY LAW ATTORNEY
If you live in Charleston, Mt. Pleasant, Summerville, Moncks Corner, James Island, John's Island, West Ashley, Ridgeville, Walterboro, Beaufort, or any of the other fine communities of the South Carolina Low Country and you have a Family Law issue and need some legal advice, call The McMillian Law Firm today for your free consultation. We are here to serve you with compassion and competence. Please do not hesitate, call me at 843-900-1306 or email [email protected].