What is Common Law Marriage?

South Carolina still recognizes "common law" marriage, so a couple can be married even if they did not undergo a formal marriage ceremony. Common law marriage is not a different type of marriage than a ceremonial marriage; it is simply a different way of becoming married and involves different methods of proving the marriage exists or existed. A couple married at common law is just as married as a couple who undergo a formal marriage ceremony.

Many people mistakenly believe that living together for a set period of time creates a common law marriage. This is not true. A couple can live together one night and be common law married and live together twenty years yet still not be married. The test of a common law marriage is the present intent to be married when there are no impediments to marriage. A "present" intent (that is, the parties intend to be married now rather than in the future) is required to distinguish a common law marriage from an engagement.

The requirement that there be no impediment to the marriage simply means that the parties meet the legal requirements to marry. For example siblings, same sex couples, and twelve year-olds cannot marry in South Carolina; they could not marry at common law either.

People who are already married to others also cannot marry and thus they cannot marry at common law. A cohabiting sexual relationship that begins with an impediment to marriage is presumed not to be a common law marriage. Thus, if a couple begin living together when one or both parties are married to someone else, that relationship is presumed to not be a marriage, even if the married party later obtains a divorce. Some new act by the couple, affirming their present intent to be married, will be required to create a common law marriage.

Common law marriage creates issues of proof. Unlike a ceremonial marriage, where there will be some official public record of the parties’ marriage, the proof of a common law marriage can be factually complex. Establishing a common law marriage requires proof of reputation and cohabitation. The parties must (for at least some period of time) have lived together to be married at common law. Further, they must have a reputation for being married during this period of cohabitation. That is they must have held themselves out as husband and wife. If only one party to the relationship holds him or herself out as married there is no marriage.

The reputation aspect of proving common law marriage is often accomplished through witnesses who know the couple and know how the couple described their relationship (as married or as otherwise). Reputation can also be proven through records. Examples include filing joint tax returns as a married couple; using the same surnames; listing the other on employment documents as one's spouse; buying property together; and naming the other as spouse/beneficiary on a life insurance document. Often, when a cohabiting couple has a child together, one party might place the other party on his or her employer-provided health insurance as a "spouse." This can be evidence of a common law marriage.

If a common law marriage exists, the couple enjoy the same rights and responsibilities as a couple married ceremonially. They have the right to seek spousal support and alimony and seek the equitable division of marital property. Children born of the marriage are legally presumed to be children of the husband, who has full custody rights until and unless the family court orders otherwise (in contrast the mother has custody of children not born of a marriage until a court orders otherwise). Further, to terminate their relationship, they must obtain a divorce.

Many couples who are married at common law obtain what is jokingly referred to as a "common law divorce"; that is they simply stop living with each other and consider themselves divorced. The law sees it differently: that couple remains married and any subsequent "marriage" entered into without the couple divorcing is a bigamous and void marriage.

Entering into a bigamous marriage because a common law marriage was not terminated by divorce creates a legal morass, where much litigation will be required to sort out everyone’s rights and responsibilities. Often this problem will not arise until one party dies and his or her estate needs to be probated. If a couple believes they might be married at common law and intend to separate, it is safest to have a judicial determination of whether a marriage existed and if the court determines a marriage existed, that couple should obtain a divorce before either of them remarry.