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Common Law Marriage in South Carolina

On Behalf of | Sep 23, 2018 | Divorce

South Carolina is one of only about ten states that still recognize common law marriages. How do you prove a common law marriage in SC, and why would you?

What does “common law” even mean?

Below, I’ll answer some common questions about common law marriage in SC, how you can prove (or disprove) common law marriage in court, and how to make sure that you are not unintentionally entering a common law marriage.

What Does “Common Law” Marriage in SC Mean?

Most people have heard of “common law marriage,” but there is plenty of confusion about exactly what it means.

Common law” means that there are no written laws, or statutes, that define the law. Instead, it is defined by a series of appellate opinions decided by the courts.

SC’s Common Law Marriage Statute

SC Code Section 20-1-360 makes it clear that you do not have to get a marriage license and comply with SC’s marriage laws for a marriage to be valid:

Nothing contained in this article shall render illegal any marriage contracted without the issuance of a license.

Although this code section authorizes common law marriage in SC, we must look at SC appellate opinions to learn exactly what common law marriage is

Common Law

The “common law” is the law as decided by England’s courts prior to the American Revolution – after the Revolution, America adopted England’s common law.

“Common law” also means the law as it has been developed by American (and South Carolina) courts since the Revolution, as well as new laws that are adopted or modified by SC Courts on an ongoing basis.

So, “common law marriage” in SC means that the marriage is not defined by SC statutes – instead, it is defined by a series of appellate opinions that may date back to pre-Revolution English law.

How Do Courts Decide Common Law Marriage in SC?

SC courts will look at several factors to determine whether a couple is “common-law married,” including:

  • Whether the couple intended to be married;
  • Whether there was a valid “contract” to marry;
  • Whether the couple was living together (cohabitation);
  • Whether there were any “impediments to marriage;” and
  • Whether they “held themselves out” as married.

Why Would Someone Want to Have a Common Law Marriage?

Often, couples will purposefully form a common law marriage for a variety of personal reasons. Maybe they want an alternative to a “religious” or government-sanctioned ceremony and they want the financial benefits that come from marriage.

Most often, the question of whether a couple has a common law marriage in SC arises when one partner is seeking a divorce, a partner is seeking an inheritance, or a partner is seeking benefits under an insurance or worker’s comp policy.

When there is opposition to the party seeking the benefits from a marriage, the courts must decide whether the common law marriage existed – how do they make that decision?

Common Law Marriage in SC is a Contract

A common law marriage is a “contract to be married.”

The couple does not need to draft a written contract, and they do not need to agree to specific terms. The agreement to marry can be inferred from the circumstances.

There must be “mutual assent.” Each person must intend to be married to the other and the intent to marry must be mutual – participation in the marriage is the “consideration” for the contract.


The couple must live together in “apparently matrimonial cohabitation,” meaning that, while they are “cohabiting,” they “hold themselves out” as being married and have a reputation in the community of being married.

Cohabitation and a reputation or marriage creates a “rebuttable presumption” that the couple have created a common law marriage in SC

Impediments to Marriage

When there is an “impediment to marriage,” a common law marriage cannot be formed.

For example, if one person is already married to someone else, they cannot legally marry a second time – otherwise, the law would permit bigamy which is a crime.

Once the impediment is removed, the relationship does not automatically become a common marriage in SC. If the couple recognizes the former impediment and enters a new agreement to be married, then a common law marriage can be formed.

Can Gay and Lesbian Couples Have a Common Law Marriage in SC?

In 2015, the U.S. Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to:

  1. License marriages between same-sex couples; and
  2. Recognize lawfully licensed and performed same-sex marriages from other states.

This means that LGBTQ couples can enter a common law marriage in SC, with the same requirements that already apply to traditional common law marriages.

If a common law marriage was formed, same-sex couples in SC should have the same rights and responsibilities as heterosexual couples, including the right to inherit or receive death benefits, and the right to marital distribution or alimony in divorce proceedings.

Will Another State Recognize a Common Law Marriage in SC?

The full faith and credit clause of the US Constitution requires every state to honor judicial decisions from the courts of every other state – including common law marriages.

So, although most states do not permit common law marriages, they must recognize a common law marriage that was formed in SC.

Got Axelrod?

If you are in a common law marriage and you are considering separation, you may need to file a divorce action to dissolve the marriage. Your Myrtle Beach divorce attorney at Axelrod and Associates can help you to determine whether you meet the requirements for a common law marriage and whether you can seek alimony or other benefits in your divorce proceedings.

Call now at 843-353-3449 or email our office to talk with a SC divorce lawyer on the Axelrod team today.


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