Common law marriage south carolina tipsThe laws regarding common law marriage South Carolina saw a recent change that the Supreme Court effected. That has been a recurring theme in many states, and only a handful of states now recognize common law marriages.

Common-law married couples don’t go through the formal process of solemnization or getting a marriage license but live and do things as any other traditionally-married couple. In this article, we’ll discuss how the Palmetto State treats the legal concept of common law marriage.

Does South Carolina Recognize Common Law Marriage?

The South Carolina Supreme Court ruling provided that the state ceases to recognize common law marriages as of July 24, 2019. However, the court clarified that SC courts will still recognize any common law marriage entered before that date. It means that partners can’t establish new common law marriages in South Carolina.

Alternatives to Common Law Marriage in South Carolina

Today, partners in SC can’t enter into a common law marriage. In addition to meeting all marriage requirements, a couple that wants their marriage to be considered legal in South Carolina must obtain a marriage license. (S.C. Code Ann. § 20-1-210.). Among the many reasons that spurred the abolishment of common law marriage was how complex it was to prove common law marriage in South Carolina.

Yet, it is important for couples wishing to stay unmarried to address their relationships proactively. Opting into relationships or contracts equivalent to marriage gives such couples similar rights and obligations as formally married spouses. Specifically, such alternatives provide rights such as:

  • A spouse’s medical coverage by the other’s health insurance.
  • Visitation rights and making decisions regarding an incapacitated spouse’s health care.
  • Priority for a spouse to be the conservator or guardian for an incapacitated spouse.
  • Eligibility for maintenance during the relationship and alimony upon the termination of the relationship.
  • Equitable distribution of the property acquired during the relationship.

A judge can limit or deny you or your partner the right to decide on the other party’s assets if your relationship isn’t recognized as a marriage. For instance, a home sale could be completed without your partner’s or your say, depending on the ownership. That would be different if partners were formally married or in a relationship recognized as a marriage in SC.

By entering into a marriage-like relationship in South Carolina, parties also have certain rights on the death of their parties. Some of these include:

  • Preference for being appointed as the administrator of the decedent’s estate.
  • Inheritance of not less than 50 percent of the decedent’s estate if there is no will.
  • Receiving not less than 50 percent of a wrongful death or personal injury settlement.
  • Being the beneficiary of retirement benefits or life insurance per the policy terms.
  • Possible entitlement to survivor benefits.
  • Being in a legally recognized relationship also allows a party to have a say in any funeral arrangements upon the passing away of their partner.

Below, we look at alternatives to common law marriage or remedies the state provides for unmarried parties living together.

– Domestic Partnerships

Establishing a domestic partnership is one of the ways cohabiting parties may establish the rights and obligations of marriage. According to one state statute, cohabitation is the continuous and habitual dwelling together of a man and a woman in an intimate conjugal relationship not formalized as a marriage per the law or not essentially meeting the South Carolina common law marriage requirements.

Cohabitation doesn’t automatically confer rights and duties to parties regarding the earnings and property acquired during their relationship. Yet, such parties can agree to pool their earnings and hold the property acquired during their relationship jointly or separately, governed by the state property laws.

Other aspects that may be affected by a domestic partnership include medical care and estate planning. A cohabiting couple living together as though they were married may have the same rights to medical care decisions as any other spouse or be considered each other’s heir under the law.

Domestic partnerships may also enable a party to create trust in the property of the other. Even without a trust, a court may declare a resulting trust if there is evidence that cohabiting parties intended to create a trust.

– Cohabitation Agreements

Unmarried parties who wish to live together but remain unmarried may establish financial and emotional security by creating and signing a cohabitation agreement before moving in.

Cohabitation agreements allow unmarried parties to specify each party’s rights regarding the division of assets and debts, support obligations, inheritance, household expenses, estate planning, and health care decisions.

The law allows cohabiting parties to establish rights as formally married couples by creating agreements that make detailed provisions for the property both parties have now, that which may be acquired in the future, and its disposition in the event of a breakup or death.

– Contractual and Quasi-Contractual Remedies

The state may recognize contracts regarding property division for cohabiting couples who don’t meet SC statutory marriage requirements. Cohabiting partners’ rights to property division may be recognized if their claims are based on express contracts.

In South Carolina, contract-based remedies may be useful, as express contracts between nonmarried partners may be enforced unless consideration is based on sexual services. In the absence of an express contract, the court can evaluate the parties’ conduct to determine whether an implied contract exists.

While express and implied contracts offer an avenue to protect unmarried partners’ rights outside formal marriage, they may not always provide a complete solution. That is because most cohabiting couples are less likely to enter into an express agreement regarding their rights upon the dissolution of the relationship.

Parties who enter a relationship assuming they will share their resources, labor, and accumulated assets are without remedy if they don’t trigger the obligations commonly referred to as ‘contract.’

While contract-based alternatives may work for support obligations and property division, they may not apply to government benefits. These alternatives are therefore known to offer some protection for unmarried couples after the dissolution of their nonmarital relationship. However, such protection is limited.

– Equitable Remedies

Other common law marriage alternatives that may help protect the interests of unmarried parties are the equitable remedy of unjust enrichment and estoppel. Parties in nonmarital relationships can recover property or assets whenever a court imposes a constructive or resulting trust in property acquired during the relationship.

The Restatement (Third) of Restitution and Unjust Enrichment specifically offers relief if one former cohabitant owns a particular asset to which the other party has made considerable, uncompensated contributions through property or services.

Under this publication, a party that makes such contributions has a claim in restitution against the party who owns the asset to avoid unjust enrichment.

The doctrine of equitable estoppel could also be used to protect the rights of couples who have held themselves out as married but whose relationship doesn’t adhere to the state’s marriage requirements.

In some cases, the doctrine of estoppel is considered more advantageous than the doctrine of common law marriage. It doesn’t focus on subjective intent but rather on objective actions such as maintaining joint bank accounts, using the same last name, or filing joint tax returns.

Such concrete actions would justifiably lead each party in the relationship and third parties to assume that there exists a marital agreement. Based on that argument, the principle of equitable estoppel could be an effective alternative to the doctrine of common law marriage. That is particularly so when the court is concerned about protecting a dependent spouse who has relied on their partner’s representation.

FAQ

– How Long Do You Have To Live Together for Common Law Marriage in SC?

Contrary to common belief, you don’t have to live with your partner for seven years to be in a common law marriage. Marriage laws in South Carolina don’t specify a minimum period for partners to cohabitate to be considered common-law married. Couples may establish a common law marriage by fulfilling the requirements for marriage and holding out as a married couple.

– What Is Considered Common Law Marriage in South Carolina?

Parties to a common law marriage must meet the basic requirements for marriage in South Carolina. Both must be at least 16 years, not be closely related, not be in another marriage, and have the mental and physical capacity to enter marriage. Further, they must consider themselves married spouses and show this to the public.

– Did South Carolina Abolish Common Law Marriage?

Yes. The South Carolina Supreme Court abolished common law marriage on July 24, 2019. That means couples can’t form new common law marriages after this date, but those established earlier are still recognized.

– Is SC a Common Law Property State?

No. South Carolina is an equitable distribution state – all property acquired by spouses during their marriage or relationship is subject to a fair and equitable division. Under equitable distribution, property division doesn’t have to be 50/50; the court divides property fairly for both parties.

– What Is a Common Law Spouse Entitled To?

Under common law in South Carolina, parties to a valid common law marriage are entitled to similar rights and benefits as spouses in a formal marriage. Common law spouses are entitled to the property, support, medical care decision-making, and even inheritance rights upon breakup or the death of their partner.

Conclusion

With recent changes in the law, common law marriage can be a confusing topic. This article has shed light on the validity of common law marriage in South Carolina and the rights of common law spouses. Below is a summary of the main ideas in this article:Common law marriage south carolina all you need to know

  • Common law marriages confer rights and obligations of a formal marriage to parties living together as married spouses.
  • South Carolina abolished common law marriage as of July 24, 2019, but those formed before are still recognized.
  • Like formally married spouses, common-law spouses have to deal with issues such as child custody and support, spousal support, and property division upon breakup.
  • Parties who wish to remain unmarried but establish marital rights and obligations may sign a cohabitation agreement or consider a domestic partnership.

Living together without being married can have an implication on your rights to the marital property upon breakup. Suppose you and your partner lived together before the abolishment of common law marriage in SC. In that case, it is important to determine whether you were in a valid common law marriage by establishing whether your union satisfied all common law marriage requirements.

If unsure where to start, you should seek legal guidance by speaking to an experienced family law attorney or lawyer.

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