© 2011 by the County Assessors of South Carolina & qpublic.net
COMMON LAW MARRIAGE
Generally, a couple needs a marriage license to be "married" in South Carolina. Some couples, however, are "common law" married,
without the benefit of a license. Since these marriages are based on the common law of the State, not on statutory law requiring a
marriage license, the county should look to the court cases to evaluate a claim of common law marriage.
South Carolina courts set forth two elements of common law marriage. First, the parties must have the capacity to marry. Second, the
facts and circumstances must show an intention on the part of both parties to enter into a marriage contract. This intention may be
"evidenced by a public and unequivocal declaration of the parties," or may be inferred from the parties having lived together as husband
and wife and having acquired a general reputation as a married couple.
While most common law marriage jurisdictions impose a third requirement on those seeking to establish a common law marriage: the
couple must "hold themselves out" to the community as husband and wife, South Carolina case law, however, combines the "public
holding out" with the intent to be married. That is, claimants may use community recognition and reputation to show the intent to be
married. In addition, the party asserting common law marriage in South Carolina must prove the existence of the marriage by a
preponderance of the evidence.
RELATED ASSESSMENT ISSUES:
The issue of common law marriage is important to Assessors for three main reasons. First, it can arise in legal residence and homestead
cases. Second, in most cases, a transfer between spouses or subsequent to the death of a spouse is not an ATI; therefore ATIs can be
affected by marriage or lack of marriage. Third, unpaid relatives can represent a taxpayer in the appeal process - a spouse is a relative.
SC Const. Art. XVII, Sect. 15
Prohibition against same sex marriage,
S.C. Code Ann. § 20-1-360
"Nothing contained in this article shall render illegal any marriage contracted without the issuance of a
SC DOR Regulations:
Application: Not Applicable
Is there a time period that the couple must be together to be "common law" married?
No. There is no precise fixed point in time that a common law marriage comes into existence. Campbell v. Christian, 235 S.C. 102,
105, 110 S.E.2d 1, 4 (1959). As Campbell further illustrates, "[i]llicit relationship, though accompanied by cohabitation, is not
transformed into the legal state of marriage by mere lapse of time." Id. Therefore, the couple may live together for years, but if
they do not do those things necessary to demonstrate their intent to enter into a marital relationship, they are not married under
the common law. (S.C.A.G. Feb. 22, 2001)
Can a couple enter into a common law marriage if one "spouse" has not divorced his or her previous spouse?
No. A couple must have the capacity to marry and a person can only be married to one person at a time, legally. Likewise, the
other requirements for marriage in SC must be met. The marriage must be between a man and a woman and the parties to the
marriage must be over the age of 16.
Can a same-sex couple enter into a common law marriage?
No. See FAQ 2 and SC Constitution, Art. XVII, Sect. 15.
What if two people are living together and consider themselves married, but one of them is not yet divorced. Once the "spouse" is
divorced, then are they common law married? Not necessarily. Once the impediment to marriage is removed, (i.e. the spouse is
divorced so that the parties have the capacity to marry), then the parties must enter into a new agreement to be married.
See Callen v. Callen, 365 S.C. 618, 624, 620 S.E.2d 59, 62 (2005), "When, however, there is an impediment to marriage, such
as one party's existing marriage to a third person, no common-law marriage may be formed, regardless whether mutual
assent is present. Further, after the impediment is removed, the relationship is not automatically transformed into a
common-law marriage. Instead, it is presumed that relationship remains non-marital. For the relationship to become
marital, "there must be a new mutual agreement either by way of civil ceremony or by way of recognition of the illicit
relation and a new agreement to enter into a common law marriage." Kirby, 270 S.C. at 141, 241 S.E.2d at 416 (citing Byers
v. Mount Vernon Mills, Inc., 268 S.C. 68, 231 S.E.2d 699 (1977))"
SC Supreme Court:
Callen v. Callen, 365 S.C. 618, 620 S.E.2d 59 (2005)
Kirby v. Kirby, 270 S.C. 137, 241 S.E.2d 415 (1978)
Jeanes v. Jeanes, 255 S.C. 161, 177 S.E.2d 537 (1970)
SC Court of Appeals:
In re Estate of Duffy, 392 S.C. 41, 707 S.E.2d 447 (Ct. App. 2011)
Johns v. Johns, 309 S.C. 199, 420 S.E.2d 856 (Ct. App. 1992)
SC Circuit Court:
SC Administrative Law Court:
SC DOR/Tax Commission:
SUGGESTED PROCESSES AND PRACTICES:
Consider asking for documentation of the parties' intent to be married. Case law suggests: The parties consistently represented
themselves as husband and wife in their community. For example:
Respondent engaged in several real estate transactions between 1956 and 1976 and requested appellant to renounce her dower
rights on each occasion
Respondent and appellant appear as husband and wife on their children's birth certificates.
The parties filed joint federal income tax returns.
Although respondent attempted to refute the existence of a common law marriage, he nevertheless testified that while living with
appellant he had considered her to be his wife.
Appellant testified that after her divorce she and respondent agreed to obtain a ceremonial marriage but "never got around to it."
You may also ask or consider these questions:
Do the parties have a joint checking account?
How are utilities registered?
How is property held?
Check children's birth certificates.
Look at church directories.
An old family Bible may be used for verification if it indicates that the parties were "married."
Copies of insurance policies may verify an intent to provide for the "spouse."
Marriage may have been proven to place a "spouse" on a medical insurance policy.
Although there is no one definitive answer to look for to determine if a couple is "married," the existence of several factors may indicate
HISTORY AND CHANGES:
The "history" of common law marriage relates to the days when it was prohibitively difficult to get to a minister to officiate a ceremony or
to travel to the county seat to obtain a marriage license. Because these trips could have taken several days over rough terrain, an
alternative was needed, and the alternative was common law marriage. South Carolina case law cites the need to "legitimize" children,
to protect vulnerable women, and to encourage "legitimate" vs. "subversive" relationships in its historical support for common law
marriage. See e.g., Lucken v. Wichman, 5 S.C. 411, 414 (1873). NOTE: this citation is not provided in the statues section of this manual
due to age.
Currently, it is more difficult to verify a common law marriage, with such a subjective standard. Obviously, you can no longer look for
dower renunciations to determine whether a couple considers themselves married. See above under "suggested practices" for
indications that a couple considers themselves married. In addition, there have been several bills introduced over the last few years to
abolish common law marriage in South Carolina. So far, none has passed, but expect the debate to continue for the near future.