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    May 21, 2021

    Proving a Common Law Marriage In South Carolina

    While many couples have strong reasons for wanting to get married, others have strong reasons for not wanting to tie the knot legally. In some cases, it may be due to biases against the institution itself, or practical reasons, such as the existence of a trust fund or other benefits that would be lost unless the person remains single. In other cases, it boils down to the feelings shared by a couple, feelings that they are indeed married in every sense of the word and do not feel the need to get a legal license or to “make it official.”

    For many years, couples who did not want to get a marriage license or who didn’t have the means to obtain a marriage license in South Carolina had the option of entering into a common-law marriage. Common-law marriages date from a time when transportation was more of a challenge and couples might not have been able to travel to the courthouse to apply for a marriage license. When people were married under common law, they stated an intention to be recognized as spouses. Both parties needed to agree that they were married, otherwise a common-law marriage couldn’t exist.

    Although many couples in a common-law marriage were in agreement about their marital status, there have been instances when one partner claimed the couple were married and the other partner disagreed. In those cases, the court needed to intervene and determine whether or not a couple was truly married. Since there is a potential for confusion or disagreement, South Carolina’s Supreme Court ruled in 2019 that common-law marriage would no longer be possible.

    Legality of Common-Law Marriage Before 2019

    Prior to 2019, South Carolina was one of only eight states that allowed common-law marriage. In states such as Colorado, Kansas and New Hampshire, state statutes and family law rules make express conditions under which common law marriages occur. In South Carolina, it is more a case of what the law did not require in order for a couple to consider themselves married in the eyes of the state. While Section 20, Chapter 1 of the South Carolina State Statutes lays out the terms under which a legally binding marriage is entered into, Section 20-1-360 expressly stated that nothing in the chapter precludes a legal marriage on the basis that a couple has not obtained a marriage license.

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    Couples who entered into a common-law marriage in South Carolina before July 24, 2019, are considered married by the state and need to file their state and federal tax returns under the status of “Married, Filing Jointly” or “Married, Filing Separately.”

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    Legality of Common-Law Marriage After 2019

    The common-law marriage was abolished by the Supreme Court of South Carolina in the case Stone v. Thompson. In the ruling, the Court noted that remaining unmarried was increasingly common and that people had as much right to remain unmarried as to get married.

    It also noted that “common-law requirements are a mystery to most,” meaning that many people were unaware of what qualified a couple for a common-law marriage. In recognition of shifting cultural and societal norms and an attempt to simplify the legal process, the Court ruled that after July 24, 2019, no one in South Carolina could enter into a valid marriage without a license.

    The Court’s ruling also made the process of proving a common-law marriage established prior to July 2019 clearer.

    Proving a Common Law Marriage Exists

    Stone v. Thompson details the key element that is necessary to prove that a common-law marriage established prior to 2019 exists — both parties need to intend to be married to each other and need to recognize that their partner intends to be married to them. One spouse can’t say they are married while the other spouse says they are simply cohabitating.

    The Court ruled that there needs to be “clear and convincing evidence” that both parties in a couple intend to be married. If one party wants to claim that they are married, they need to present evidence of the fact. “Clear and convincing” evidence doesn’t have to be “beyond a reasonable doubt,” but it does need to be more than a preponderance.

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    Consult an Experienced South Carolina Family Law Attorney

    Legal issues related to establishing and holding yourself as a common-law married couple can be complicated. If you have concerns about your rights in a relationship, contact our team of South Carolina family law attorneys today. At Lauren Taylor Law, we provide caring, professional legal service to protect your rights and ensure your interests are served. We serve the entire Upstate and Greenville. Contact us online or call today for an initial consultation.

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    Proving a Common Law Marriage In South Carolina
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    Proving a Common Law Marriage In South Carolina
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    Legal issues related to establishing yourself as a common law married couple can be complicated. If you have concerns about your rights, we can help.
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