South Carolina Probate Lawyer » Marriage

Guest Post: Common Law Marriage Development

Tiffany Provence — Wed, 10 Feb 2010 02:19:19 +0000

With more and more people moving to South Carolina from other states, the question of how our unique common law marriage situation changes their relationships is a common one. This guest post answers that question:

When couples begin their relationship together in a state that does not recognize common law marriage, it does not automatically transform into a common law marriage when they move to a state that does recognize it. The South Carolina Supreme Court held in Callen v. Callen (2005 S.C. Lexis 265) that an impediment to marriage must be removed in a common law marriage, just as in a “regular” marriage, and afterward, there must be a new mutual agreement either by way of a civil ceremony or a new agreement to enter into a common law marriage. The full text of this opinion may be read here.

This post was contributed by Ben Stevens of Turnipseed, Brannon & Stevens. He is the author of the South Carolina Family Law Blog.

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Common Law Marriage in South Carolina

DCausey — Sun, 24 Jan 2010 22:42:36 +0000

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.

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Probate Court’s role in marriage

Tiffany Provence — Thu, 03 Dec 2009 17:10:40 +0000

Unrelated to the other functions of the Probate Courts in South Carolina, this court is responsible for issuing marriage licenses. Therefore, if you want to (or just have to) get married in the state of South Carolina, you need to be aware of the following requirements.

First, the bride and groom must appear together at the Probate Court and file a written application. You do not have to be a resident of South Carolina to apply, nor do you have to apply in the county where you plan to marry. Cost vary per county but average around $40 – $70 (often required in cash). The application will ask for the full name, social security number, age, and place of residence of the bride and the groom. It is a sworn statement that must be signed by the bride and the groom and then notarized in the office of the probate judge. It’s important to bring proper identification (passport or a driver’s license is best) with you to the court. And, if you are under 18, you will have to drag a parent and birth certificate along as well.

Once the application is filed, you must wait 24 hours before picking up your license. So, plan ahead and don’t wait until the Friday prior to the wedding to apply. Judges in South Carolina can not waive the waiting period regardless of how much money you have spent on your upcoming nuptials.

In South Carolina, marriage licenses do not expire so there is no harm in getting your early. However, just like a driver’s license – just because you have it doesn’t mean you MUST use it. Marry with caution. Other interesting tidbits about marriage in South Carolina:

Despite rumors to the contrary, common law marriage does still exist in South Carolina.
Yes, it’s true. You can marry your cousin in South Carolina.
There is no minimum time between a divorce and remarriage; however, some counties will ask for a copy of the divorce decree if it’s been less than 1 year.
Blood test are not required.
You can be married by a notary or clergy member.
While the Probate Court may issue you the license to get married, it is the Family Court’s responsibility to help you get a divorce!

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