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South Carolina has put an end to new common-law marriages

On Behalf of | Dec 31, 2019 | Marriage |

South Carolina will long remember July 24, 2019, as the day the state decided to abolish common law marriage. But not for quite the same reason many people remember the dates of momentous events like Nov. 22, 1963, or Sept. 11, 2001.

Instead, attorneys and some couples will need to remember that July day because the state’s Supreme Court made the following day a legal cut-off date.

If you “formed” or “established” a common-law marriage before July 25, 2019, you remain officially married by common law in South Carolina.

No future common-law marriages

Going forward, to claim married status in South Carolina you need a marriage license. The usual rules for who can get such a license in the state apply.

This leaves one lingering and obvious question. What counts as having “formed” or “established” a common law marriage before July 25, 2019?

The high court decision changed (refined, the court said) the rules for judging whether South Carolina considers a couple married by common law.

A new test for existing common-law marriages

Before the ruling, South Carolina courts took two approaches to identify a common-law marriage.

A “preponderance of evidence” was sometimes enough, Couples had to show that, more likely than not, they both specifically intended to be and considered themselves already married. The state Supreme Court said this relatively weak test made sense when the stigma of “living in sin” was higher.

This July, the court instead opted for the “clear and convincing evidence” standard, meaning that couples must be highly probable to have intended to be married. Only a standard of “beyond a reasonable doubt” would be higher than “clear and convincing.”

Any new claim of common law status requires the couple to show clear and convincing evidence that they both considered themselves married to one another before July 25, 2019.

Simply living together is not enough, no matter how long the couple has done so.