Ending Common-Law Marriage in South Carolina
Understand how South Carolina’s 2019 Supreme Court decision ended new common-law marriages and what it means for couples today.
For generations, couples in South Carolina could be legally married without ever getting a license or having a formal ceremony. That changed in 2019, when the South Carolina Supreme Court announced that no new common-law marriages can be created in the state. Couples who were not already common-law married by that date can no longer gain marital status simply by living together or calling each other spouses.
This article explains what common-law marriage is, how South Carolina’s rules changed, which relationships are still recognized, and how the decision affects property, benefits, and breakups.
What Is Common-Law Marriage?
Common-law marriage is a type of marriage that is formed by conduct and intent rather than by a license and ceremony. In states that recognize it, a couple may be treated as legally married if they agree to be married and live as spouses, even if they never obtain a marriage license.
Typical elements of common-law marriage
- Capacity to marry – Each partner must be old enough and legally free to marry (for example, not already married to someone else).
- Mutual intent – Both people must intend to create a real marital relationship, not just date or live together.
- Cohabitation – The couple usually lives together in a shared household.
- Holding out as married – They represent themselves to others as spouses, such as using the same last name, filing joint tax returns, or referring to each other as husband, wife, or spouse.
When all legal requirements are met, a common-law marriage has the same status as a licensed marriage. Spouses receive the same rights and responsibilities regarding property, inheritance, support, and divorce.
South Carolina’s Long History With Common-Law Marriage
Common-law marriage has deep roots in American law, dating back to English legal traditions. South Carolina adopted the doctrine in the 1800s through court decisions, allowing couples to marry by agreement and conduct rather than by formal ceremony.
Why common-law marriage existed
- Access problems – Historically, it could be difficult for people in rural areas to reach churches, courthouses, or officials authorized to perform marriages.
- Protecting vulnerable partners – Recognizing informal marriages helped protect women and children in long-term relationships from being left without support or inheritance rights.
- Social acceptance – Many communities informally treated long-term cohabiting couples as married, and the law followed this practice.
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Over time, as marriage licensing became simple and widely available, most states moved away from common-law marriage. By the late 20th and early 21st century, only a small minority of states still allowed new common-law marriages to be formed.
The Turning Point: Stone v. Thompson (2019)
The key change in South Carolina came in a case called Stone v. Thompson, decided by the South Carolina Supreme Court on July 24, 2019. The court was asked to decide whether a particular couple had formed a common-law marriage decades earlier. In resolving that dispute, the court also reconsidered whether the state should continue to recognize new common-law marriages at all.
What the Supreme Court decided
- No more new common-law marriages – The court announced that South Carolina would no longer allow new common-law marriages to be created after July 24, 2019.
- Existing marriages are protected – Any common-law marriage that was already validly formed before that date remains fully recognized.
- Higher proof standard – For relationships that allegedly became common-law marriages before July 24, 2019, the court adopted a stricter “clear and convincing evidence” standard to prove the marriage existed.
Why the court ended new common-law marriages
The South Carolina Supreme Court gave several reasons for ending the creation of new common-law marriages:
- Widespread confusion – Many people did not understand when a relationship might cross the line into common-law marriage, leading to surprise and litigation.
- Modern access to licenses – Getting a marriage license is now relatively easy, so the original access-based rationale no longer applies as strongly.
- Preference for clear rules – Requiring a license and ceremony creates a bright line, making it easier for couples, courts, and third parties (like employers and insurers) to know who is married.
- National trend – The decision aligns South Carolina with the majority of states that have abolished new common-law marriages.
Which Relationships Still Count as Common-Law Marriages?
Although no new common-law marriages can be formed after July 24, 2019, South Carolina still recognizes certain relationships as common-law marriages if they arose before that date.
| Type of Relationship | Can It Be a Valid Marriage in SC? | What Matters Legally? |
|---|---|---|
| Common-law marriage formed before July 24, 2019 | Possibly yes, if all legal requirements were met | You must prove mutual intent to marry, cohabitation, and holding out as spouses under the law at that time. |
| Cohabitation after July 24, 2019, with no license | No | Living together alone cannot create a new common-law marriage in South Carolina. |
| Licensed (ceremonial) marriage at any time | Yes, if state requirements are followed | You must obtain a license and have the marriage solemnized by an authorized officiant under South Carolina law. |
| Common-law marriage validly created in another state | Often yes | South Carolina generally honors marriages valid where formed, including some common-law marriages from other jurisdictions. |
Key date to remember
July 24, 2019 is the cutoff. A couple must show that their relationship became a common-law marriage on or before that date if they want the state to treat them as married without a license.
How to Prove a Pre-2019 Common-Law Marriage
Because the law no longer presumes that unmarried cohabitants are common-law spouses, evidence is essential. Courts now require “clear and convincing” proof that both partners truly agreed to be married and lived as spouses before July 24, 2019.
Examples of evidence courts may consider
- Written documents
- Joint tax returns filed as married
- Wills or beneficiary designations naming the other as “spouse”
- Leases, mortgages, or deeds listing the parties as husband and wife
- Joint bank or investment accounts opened as a married couple
- Official records
- Insurance policies describing the partner as a spouse
- Employment records listing the other partner as a spouse for benefits
- Witness testimony
- Friends or relatives who heard the couple say they were married
- People who attended events where the couple presented themselves as spouses
- Everyday conduct
- Use of the same last name
- Anniversaries celebrated as a wedding date
- Consistent references to each other as husband, wife, or spouse
Not every relationship that includes some of these factors will qualify. Courts look at the entire picture to decide whether both people genuinely intended to be married under the law of the time.
Rights and Obligations in a Valid Common-Law Marriage
If a court finds that a common-law marriage existed before the 2019 cutoff, that marriage is treated like any other valid marriage in South Carolina.
Legal consequences of being common-law married
- Property rights – Spouses may have rights to equitable distribution of marital property and debts if they divorce.
- Support obligations – Courts can order alimony where appropriate, just as in licensed marriages.
- Inheritance – Surviving spouses can claim a share of a deceased spouse’s estate even if there is no will, under state probate rules.
- Benefits – Spouses may qualify for Social Security, pension, or employer-based benefits that depend on marital status, subject to federal and plan-specific rules.
- Parental rights – Marriage can affect presumptions of parentage and responsibilities to children.
Ending a common-law marriage
A valid common-law marriage does not dissolve simply because the couple separates. To end the marriage, they generally must obtain a legal divorce or, in some circumstances, an annulment. Property division, support, and custody are resolved in family court just as with any other marriage.
How the Abolishment Affects Unmarried Couples Now
The end of new common-law marriage in South Carolina has important consequences for couples who live together without a license.
If you started living together after July 24, 2019
- You are not married by default – No amount of time living together or using spousal terms can create a legal marriage without a license in South Carolina.
- Property follows title – If your relationship ends, each person generally keeps property titled in their own name unless a separate legal theory (like contract or unjust enrichment) applies.
- Fewer automatic protections – Unmarried partners do not receive the same guaranteed rights to inheritance, support, or benefits as spouses.
Practical steps for cohabiting couples
- Consider a written cohabitation agreement – Partners can clarify how they will own property, share expenses, and divide assets if they separate.
- Use clear titles and beneficiary designations – Decide whose name goes on deeds, bank accounts, vehicles, and insurance policies.
- Update estate planning documents – Wills, powers of attorney, and health-care directives can help protect a partner who is not a legal spouse.
- Talk openly about marriage – If legal marital status is important, obtain a license and have the marriage solemnized under South Carolina law.
South Carolina in the National Context
South Carolina’s 2019 decision aligns with a broader national shift away from common-law marriage. Only a limited number of U.S. jurisdictions still allow new common-law marriages to be created today, and many of those impose strict requirements.
Nonetheless, South Carolina generally recognizes marriages that were validly formed in other states, including common-law marriages, under the principle that a marriage valid where celebrated is usually valid everywhere unless it violates a strong public policy.
Frequently Asked Questions (FAQs)
Q1: Can we become common-law married in South Carolina by living together now?
No. South Carolina no longer allows new common-law marriages to be formed. Living together, sharing bills, or referring to each other as spouses does not create a legal marriage without a license.
Q2: We have lived together for years and call each other husband and wife. Are we married?
That depends on timing and proof. If your relationship became a common-law marriage before July 24, 2019 and you can show clear evidence of mutual intent to marry and holding yourselves out as spouses, a court may recognize a common-law marriage. If the relationship began or only became marital after that date, it cannot become a common-law marriage in South Carolina.
Q3: How do I prove a pre-2019 common-law marriage for benefits or inheritance?
You may need documents such as joint tax returns filed as married, legal or financial records listing you as spouses, and witness testimony from people who knew you as a married couple. Courts apply a “clear and convincing evidence” standard, which is higher than the usual civil standard.
Q4: If we are common-law married, can we just separate instead of divorcing?
No. A valid common-law marriage is a real marriage. To end it, you generally must go through formal divorce proceedings or seek an annulment if limited grounds apply. Separation alone does not dissolve the marriage.
Q5: What if we created a common-law marriage in another state and moved to South Carolina?
If your marriage was valid under the law of the state where it was formed, South Carolina usually recognizes it as a valid marriage, even if it was established by common law. You may need to show proof of that marriage if a dispute arises.
References
- Tying the “Not”: The South Carolina Supreme Court’s Prospective Abolishment of Common Law Marriage — South Carolina Law Review. 2020-01-01. https://sclawreview.org/article/tying-the-not-the-south-carolina-supreme-courts-prospective-abolishment-of-common-law-marriage/
- Common Law Marriage in South Carolina: Requirements and Legal Effects — Steele Family Law, LLC. 2022-06-01. https://steelefamilylawsc.com/south-carolina-common-law-marriage/
- Divorce Law – Common Law Marriage Abolished in South Carolina — Max Hyde Law Firm. 2019-08-01. https://www.maxhydelawfirm.com/common-law-marriage-abolished-in-south-carolina/
- A Groundbreaking Decision Regarding Common-Law Marriage — Einhorn Barbarito. 2017-03-30. https://www.einhornlawyers.com/blog/family-law/groundbreaking-decision-regarding-common-law-marriage/
- Supreme Court Ruling Signals Death of Common-Law Marriage in South Carolina — Burr & Forman LLP. 2019-09-01. https://www.burr.com/newsroom/articles/supreme-court-ruling-signals-death-of-common-law-marriage-in-south-carolina
- Common-Law Marriage: What It Is and How to Prove It — South Carolina Law Review (PDF). 2014-01-01. https://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=1787&context=sclr
- SC Abolishes Common Law Marriage — Axelrod & Associates, P.A. 2019-07-26. https://www.gotaxelrod.com/blog/sc-abolishes-common-law-marriage/
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