There is no set number of years that creates a common law marriage in South Carolina. The state never required seven years, ten years, or any other length of cohabitation. What mattered was whether a couple mutually agreed to be married and presented themselves to the community as spouses. And since July 24, 2019, even that path is closed: the South Carolina Supreme Court abolished common law marriage going forward on that date, so only couples who already met the requirements before then have one.
Years Together Never Mattered
The idea that living together for a particular stretch of time automatically creates a marriage is a widespread myth, and South Carolina law never worked that way. A couple could live together for twenty years without ever being common law married, and another couple could meet the legal test much sooner. Duration was only relevant as circumstantial evidence of what the couple intended and how they held themselves out, not as a trigger on its own.
What the courts actually looked for was a present, mutual agreement to be married right now, combined with the couple living together and publicly treating each other as spouses. A legislative summary of the doctrine described the elements as follows: both parties had to be legally free to marry, had to intend to be married to each other, had to live together, and had to hold each other out as spouses in the community.1South Carolina Legislature. S 763 Relating to Marriage Without a License and Abolishing Common Law Marriage
Mutual Present Intent
Both people had to understand, at the same time, that they considered themselves married then and there. A plan to marry someday did not count. If one partner thought they were married and the other saw the arrangement as just living together, no common law marriage existed.
Holding Out as Married
The couple had to present themselves publicly as spouses. Courts weighed concrete behavior: introducing each other as husband or wife, sharing a last name, filing joint tax returns, naming each other as spouse on insurance or loan paperwork. Consistency over time strengthened the case, which is why longer relationships sometimes looked stronger, but the time itself was never the legal test.
Legal Capacity
Each person had to be legally able to marry. Anyone under sixteen cannot enter a valid marriage in South Carolina, and a common law marriage involving someone under that age is void from the start.2South Carolina Legislature. South Carolina Code of Laws Title 20 Chapter 1 Marriage Licenses Neither party could already be married to someone else, and neither could be mentally incompetent to consent.
The July 24, 2019 Cutoff
In Stone v. Thompson, the South Carolina Supreme Court ruled that no one may enter a common law marriage in the state after July 24, 2019, the date the opinion was filed.3Justia. Stone v. Thompson 2019 South Carolina Supreme Court Decisions The court made the change prospective only, writing that it saw “no benefit to undoing numerous marriages which heretofore were considered valid.”
Two things follow from that decision. First, if your relationship began, or your intent to be married first formed, after July 24, 2019, no amount of time living together will create a marriage in South Carolina. The only route now is a marriage license and a ceremony. Second, if you and your partner met every element of a common law marriage before that date, your marriage is still fully valid and carries the same legal weight as any licensed marriage.
Proving a Pre-2019 Common Law Marriage
Claiming a common law marriage and proving one in court are very different things. South Carolina requires proof by clear and convincing evidence, a higher standard than the usual civil “more likely than not.”4South Carolina Legislature. South Carolina Code of Laws Title 62 Chapter 2 South Carolina Probate Code Without a marriage certificate, the case rests on documents and witnesses.
Evidence that tends to carry weight includes:
- Joint tax returns filed as “married filing jointly,” which involve a signed declaration under penalty of perjury.
- Joint bank accounts, mortgages, or leases in both names.
- Insurance policies, retirement accounts, or wills naming the other person as a spouse.
- Loan applications, medical forms, or employment records listing the other person as a spouse.
- Testimony from friends, family, coworkers, and neighbors who can confirm the couple consistently presented themselves as married.
No single document is usually enough. The strongest cases combine several types of documentary proof with credible witness statements covering a stretch of years.
Why It Still Matters: Inheritance, Divorce, and Bigamy
Inheritance Deadlines
A proven common law spouse has the same inheritance rights as any other surviving spouse, but the probate code imposes tight deadlines after a partner dies. A person claiming common law spousal status is not treated as a surviving spouse for inheritance purposes unless a legal action to establish the marriage was started before the death, or within the later of eight months after the death or six months after a personal representative is appointed.4South Carolina Legislature. South Carolina Code of Laws Title 62 Chapter 2 South Carolina Probate Code Miss those windows and the spousal inheritance claim can be lost entirely, even if the marriage was real.
Once the marriage is established, a surviving spouse with no will receives the entire estate if there are no children, or one-half if there are surviving children. If a will leaves the spouse out or leaves very little, South Carolina allows a claim to an elective share of one-third of the probate estate.5South Carolina Legislature. South Carolina Code Title 62 Article 2 Section 62-2-201 Right of Elective Share
You Still Need a Divorce
A common law marriage does not end because the couple separates or decides they are done. Ending it requires a formal divorce through the Family Court on one of South Carolina’s recognized grounds: adultery, desertion for at least one year, physical cruelty, habitual drunkenness or drug use, or the no-fault ground of living separate and apart without cohabitation for one year.6South Carolina Legislature. South Carolina Code Title 20 Chapter 3 Section 20-3-10 Grounds for Divorce Most couples use the one-year separation ground, which means a full year of living apart before the divorce can be granted.
The court can divide marital property equitably, award alimony, and make custody and child support orders based on the children’s best interests.7South Carolina Legislature. South Carolina Code Title 20 Chapter 3 Section 20-3-160 Care Custody and Maintenance of Children Children born during a recognized common law marriage are presumed to be the legal children of both spouses.
Bigamy Is a Crime
Walking away from a common law marriage and marrying someone else without a divorce is not a loophole. Bigamy is a criminal offense in South Carolina, punishable by six months to five years in prison and a fine of at least five hundred dollars.8South Carolina Legislature. South Carolina Code Title 16 Chapter 15 Section 16-15-10 Bigamy A common law marriage that was valid under state law counts as a marriage for this purpose, and the second marriage can also be voided.