Common law marriage in South Carolina is no longer available to any couple whose relationship began on or after July 24, 2019. On that date, the South Carolina Supreme Court abolished the practice going forward, and a marriage license is now required for every new marriage in the state. If you and your partner already met the requirements for a common law marriage before that cutoff, your marriage remains fully valid and carries the same legal weight as any licensed marriage.
The 2019 Cutoff and What It Changed
South Carolina had recognized common law marriage for nearly 200 years before the state Supreme Court ended the practice in Stone v. Thompson, decided July 24, 2019. The court adopted a bright-line rule: anyone who wants to be married in South Carolina must obtain a license.1Justia. Stone v. Thompson – 2019 – South Carolina Supreme Court Decisions
The ruling applied only prospectively. Nobody who already had a valid common law marriage lost it. The court’s exact language was that “no individual may enter into a common-law marriage in South Carolina after the date of this opinion.”1Justia. Stone v. Thompson – 2019 – South Carolina Supreme Court Decisions So the practical question for most people today is not whether they can form one, but whether they already did.
What Made a Pre-2019 Common Law Marriage Valid
Three elements had to be present before the July 2019 cutoff.
Both partners needed the legal capacity to marry. That meant being old enough, not being married to anyone else, and not being closely related by blood. Without capacity, nothing else matters.
Both partners needed a present, mutual agreement to be married. This is where most claims fall apart. Living together for years, sharing expenses, and raising children together does not automatically create a marriage. The agreement had to be genuine, mutual, and in the present tense. Planning to marry someday was not enough.
The couple had to hold themselves out publicly as married. That means introducing each other as spouses, using the same last name, filing joint tax returns, or otherwise presenting to the community as husband and wife. The Stone court stressed that cohabitation alone, “no matter how apparently matrimonial,” does not create a presumption of marriage.1Justia. Stone v. Thompson – 2019 – South Carolina Supreme Court Decisions
Proving Your Marriage Now
When a pre-2019 common law marriage is challenged, the person claiming it exists must prove it by clear and convincing evidence. That is a higher standard than the “more likely than not” test used in most civil disputes. Courts want consistent, substantial proof of both the mutual agreement and the public representation.
Documents
A paper trail is the strongest foundation. The records that tend to carry weight include:
- Joint tax returns filed as “married filing jointly,” which are formal declarations made under penalty of perjury.li>
- Deeds, vehicle titles, or mortgage documents listing the two of you as spouses.
- Loan applications, health insurance policies, and life insurance policies naming each other as spouse or spousal beneficiary.
- Joint bank accounts and shared financial statements.
- Retirement or pension beneficiary designations naming the other as a surviving spouse.
Inconsistencies hurt. If you listed yourself as “single” on a credit application or checked “unmarried” on a government form during the same period, the other side will use that against you. Consistency across records matters as much as the records themselves.
Witnesses
People who saw the relationship firsthand can testify about how you introduced each other, whether they understood you to be married, and how long that understanding went back. Friends, relatives, neighbors, and coworkers who independently confirm the same picture make a much stronger case than one or two close family members alone.
Rights That Come With Recognition
A valid pre-2019 common law marriage is legally identical to a licensed marriage. Every right, benefit, and obligation of marriage applies.
Inheritance
If your common law spouse dies without a will, South Carolina’s intestate succession rules treat you as any surviving spouse. You inherit the entire estate if your spouse has no surviving children, and one-half if there are surviving children.2South Carolina Legislature. South Carolina Code of Laws Title 62, Chapter 2 – Section 62-2-102 Without proof, a probate court could treat you as an unmarried partner with no inheritance rights, and the estate could pass entirely to blood relatives.
Federal Benefits
Federal agencies generally recognize a common law marriage if it was valid in the state where it was formed. The Social Security Administration allows a surviving common law spouse to claim survivor benefits, but requires signed statements from the spouses or their relatives along with supporting records such as mortgage receipts, bank statements, and insurance policies.3Social Security Administration. SSA Handbook Section 1717 – Evidence of Common-Law Marriage The Federal Employees Health Benefits program will cover a common law spouse with either a court order recognizing the marriage or a signed declaration paired with proof of a joint tax return or shared residence and finances.4OPM.gov. Family Member Eligibility Fact Sheet – Spouse and Common Law Spouse
If You Move Out of State
A common law marriage validly formed in South Carolina before July 2019 generally travels with you. Most states apply the rule that a marriage valid where it was created is valid everywhere, even if the new state does not permit common law marriage on its own. The catch is proof: you may have to establish the marriage’s validity to a court or agency in the new state using the same kinds of documents and testimony described above.
Ending a Common Law Marriage
There is no such thing as a common law divorce. A recognized common law marriage ends only through a formal divorce filed in South Carolina Family Court, and the process is the same as for any other marriage.
South Carolina recognizes five grounds for divorce: adultery, desertion for at least one year, physical cruelty, habitual drunkenness (including drug addiction), and no-fault separation, which requires living apart without cohabitation for at least one year. The court then handles equitable division of marital property, alimony where appropriate, and any custody or child support issues.5South Carolina Legislature. South Carolina Code of Laws Title 20, Chapter 3 – Section 20-3-130
Why Walking Away Is Not the Same as Divorce
This is where people with common law marriages make their most damaging mistake. Separating from a common law spouse does not end the marriage. You stay legally married, with all the consequences.
The most immediate risk is bigamy. If you enter a new licensed marriage while your common law marriage is still legally intact, you have committed a felony. South Carolina punishes bigamy with six months to five years in prison and a minimum fine of $500, and the second marriage is void.6South Carolina Legislature. South Carolina Code Title 16-15-10 – Bigamy
Beyond the criminal exposure, an undissolved common law marriage keeps financial entanglements alive. Your spouse retains inheritance rights, potential claims to property you acquire after you part ways, and eligibility for spousal benefits through your employer and federal programs. If you believe you have a valid pre-2019 common law marriage and the relationship is over, filing for divorce is the only clean way out.