South Carolina Abolishes Common Law Marriage. Finally!

The Family Law landscape in South Carolina changed drastically on July 24, 2019, with the Supreme Court’s Stone v. Thompson opinion. This opinion abolishes common law marriage in South Carolina “purely prospectively.”
So what does that mean? It means that as of July 24, 2019, people cannot establish a common law marriage in South Carolina. As of July 24, 2019, if you want to be married, you must get a marriage license and have a ceremony.
Perhaps as important as the abolition of any future common law marriages, is the way that existing alleged common law marriages are to be handled.
Common law marriage only matters when the relationship ends. This is the frustration that lawyers and litigants have faced. When the relationship is good, the parties are happy, and the money and property are all “marital”. It is only when someone wants out of the relationship (or in Probate Court, dies) that the existence of a common law marriage becomes an issue. If the Family Court finds a common law marriage to exist, then there are issues regarding division of property and debt, as well as potential alimony issues. If no common law marriage exists, then the Family Court has no jurisdiction to divide property or debt and no jurisdiction to award alimony.
In Stone, the Court took the “opportunity to refine the tests courts are to employ henceforth” in determining whether alleged common law marriages entered into before July 24, 2019 are common law marriages or not. The Court states “To sum up, in cases litigated hereafter, a party asserting a common-law marriage is required to demonstrate mutual assent to be married by clear and convincing evidence. Courts may continue to weigh the same circumstantial factors traditionally considered, but they may not indulge in presumptions based on cohabitation, no matter how apparently matrimonial.” It is my professional opinion that this language makes it much less likely that the Family Court will find common law marriages to exist in relationships existing prior to July 24, 2019.
There is no one thing that makes or breaks a common law marriage prior to July 24, 2019, except the mutual assent of the parties to the marriage. It is fruitless to contact a lawyer and ask if you have a common law marriage. Any attorney who answers that question with a “yes” or a “no” has not carefully studied the law. It is also irresponsible for any attorney to simply tell people to get married, as doing so will also have legal ramifications. Such decisions must be carefully considered in light of this huge shift in the law.
This is the most significant Family Court opinion in a long time. Other similarly significant changes which resulted in big shifts in the law were the abolition of the Tender Years Doctrine and the recognition of homosexual marriages.
I am delighted that South Carolina has abolished common law marriage. It was about time! Now, if South Carolina can come to the conclusion that married couples should be permitted to file for separation while still living together, we would really be in the 21st century.

If you need legal advice or representation in Anderson or Abbeville Counties of South Carolina, contact M. J. Goodwin at mj@mjgoodwin.com

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