South Carolina is one of the few states that still recognizes common law marriage. The concept is often misunderstood, with many people mistakenly believing that merely living together for a certain (or “magic”) number of years means you are automatically considered married. However, that’s not the case.
The test for whether a common law marriage exists is much more holistic, examining the totality of the circumstances of your relationship. You can live together for one night and be married or live together for decades and not be. It just depends on whether there is intent to be married.
Common law marriage happens when a couple is considered married without ever having a formal marriage ceremony. It isn’t a different type of marriage, just a different way of recognizing a marriage. Couples who are common law married are just as “married” as those who had the ceremony in a church or before a magistrate.
To be common law married in South Carolina a couple must have the present intent to be married with no impediments to marriage. This “present intent” is meant to differentiate common law married couples, who intend to be married now, from engaged couples who have a future desire to be married.
Beyond this intention, the parties must meet the following requirements:
- Both parties must be legally free to marry.
- Both parties must be at least 16 years of age.
- There must be an agreement between the parties to be married.
- The parties must live together, although there is no magical amount of time.
- Finally, both parties must hold out to the public that they are married; either by wearing rings, having insurance on the other person, filing joint tax returns or telling people they are married.
Common law marriages mean that couples get all the same rights as married couples. They have the right to seek alimony and child support as well as equitable division of marital assets. Additionally, there’s no way to have a common law divorce. You will be presumed married until you seek a legal divorce from your common law spouse.
If you’re in a long-term relationship and want to avoid becoming common law married, avoid presenting yourself as husband and wife. Don’t use the same last names or enter into contracts as if you are married. Don’t file joint tax returns or tell others you’re married. Holding yourself out to the world as a married couple is a good way to find yourself bound by the confines of legal marriage.
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