What is common law marriage?
Common law marriage is a marriage recognized by the state that does not require the spouses to obtain a marriage license or hold a formal marriage ceremony. A state that recognizes common law marriages usually require the spouses hold themselves out to be married in public life, cohabitate together, and agree that they desire the state to legally recognize their union. The legal bar to establish a recognized common law marriage is typically quite high.
Why does common law marriage exist?
Common law marriage harkens back to days before easy and quick transportation when it was more difficult to locate a minister to conduct a marriage ceremony or the physical distance to obtain a marriage license from a courthouse was too great. Common law marriages provided protection of a couple’s reputations by allowing couples to avoid “living in sin” by cohabiting prior to legal marriage and avoid having their children shunned in society by being born out of wedlock.
Does my state have common law marriage?
In South Carolina, effective July 24, 2019 as a result of the South Carolina Supreme Court Case Stone v. Thompson, South Carolina no longer recognizes new common law marriages. If you were already in a common law marriage established prior to July 24, 2019, South Carolina will continue to recognize your existing common law marriage.
North Carolina does not recognize common law marriage for its residents. North Carolina requires all couples who wish to be legally married to go through the legal process of statutory marriage, which includes obtaining a marriage license, participating in a marriage ceremony, having two witnesses to the marriage, and submitting the license to the county register of deeds to receive a marriage certificate.
Will my common law marriage be recognized in South Carolina/North Carolina if I move from another state?
Generally, the United States Constitution’s Full Faith and Credit Clause requires states to recognize and give full faith and credit to the laws of other states. This constitutional clause applies to common law marriages being recognized from one state to another.
Yes, in South Carolina your common law marriage will be recognized if you moved from another state that recognized your common law marriage and you are now domiciled in South Carolina.
Yes, it is likely that North Carolina will recognize your common law marriage, but there are a few factors that must be met in order for your marriage to be recognized. (1) You have to have been engaged in cohabitation in a state that recognizes common law marriage; (2) the out-of-state common law marriage was recognized by the state you were cohabitating in; and (3) the court in North Carolina can establish a date that your common law marriage began.
What are the requirements of common law marriage?
You might have heard that people who have lived together for seven (7) years or more and hold themselves out as spouses are “common law married,” but that was not the requirement in South Carolina prior to 2019 and is just a widespread myth. In South Carolina, for your relationship to have been considered a common law marriage prior to 2019, you had to be over sixteen (16) years old, not married to someone else, not be related to your partner by blood, cohabitate, and hold yourself out to be married both publicly and privately – which is more difficult to prove than you might imagine. Common law marriage provides the same economic and legal benefits as marriage, like tax breaks and inheritance rights.
Do I have to go through divorce if my marriage was common law?
There is no “common law divorce,” but if your relationship was legally recognized as a common law marriage in South Carolina prior to 2019 or another state that recognizes common law marriage, you will have to obtain a legal divorce to address any property and alimony/spousal support that exist. You also must obtain a divorce in a common law marriage to avoid potential bigamy issues that might arise if you remarried without obtaining a divorce from your common law spouse. Additional proof of the validity and existence of the common law marriage may have to be presented in a divorce from a common law marriage. It can be tricky to prove that you were married by common law and entitled to property division or spousal support, as it is often one spouse’s word against the other.
If you have any questions or concerns about common law marriage in North or South Carolina, please reach out to schedule a consultation.
Lindsey Dasher is the Managing Partner at Dasher Law PLLC