As Tiffany has already told you in an earlier post, the Probate Court is responsible for issuing marriage licenses in South Carolina. She also pointed out that the strange beast we call common law marriage still exists in our state—at last count, only nine other states continue to recognize it. While most issues related to marriage (and divorce) are dealt with in the Family Court, the Probate Court has the authority to validate a common law marriage. This is not the easiest thing to prove in the Probate Court, because if the matter is to be heard there, one of the parties must be, well… unavailable.
In South Carolina, if there are no impediments to the marriage, a party must show the court that four requirements have been met before a common law marriage can be validated. First, both parties must have the capacity to enter into a marriage. Neither party can be mentally ill, already married to another or impaired at the time the other three requirements were met.
Next, there must have been an agreement between the parties to live as husband and wife. It could have been an informal agreement, but one party alone does not get to make the call—there must be some evidence of an actual and mutual agreement to live publicly as husband and wife.
Third, the parties must hold themselves out to the public as husband and wife. So, not only do they have to agree to live as husband and wife, other people in the community must believe that they are married.
Lastly, some cohabitation is necessary to prove the existence of a common law marriage. I once had neighbors who were legally married but lived across the street from each other. It worked for them (and sometimes doesn’t sound like such a bad idea), but the court would probably not accept their arrangement as proof of a common law marriage.
Contrary to popular belief, there is no specific length requirement for cohabitation. I’ve heard people say (in very authoritative voices) that a couple has to live together for at least a year before they are “common law married.” I’ve heard others (just as authoritatively) say the required time is seven years. The fact is that the courts have not set a specific rule, but cohabitation of a short duration is not likely to create a common law marriage unless there is strong evidence to support the existence of the other requirements.
A common law marriage is always hard to prove, especially in the Probate Court. Expect a fight, because proving the existence of a marriage will almost always decrease what other heirs are entitled to take from an estate. And, of course, immediately hire an attorney familiar with this area of the law to ensure your rights are protected.
Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. These changes DID NOT abolish common law marriage. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.