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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My name is Tiffany Provence, an attorney living and practicing outside of Charleston, S.C. in Summerville. And, while I would love to blog about fashion, technology or exotic travel, I have little experience or knowledge in anything that exciting. However, after more than 10 years as a Probate Judge for Dorchester County, S.C., I have learned that there is a severe shortage of information on this topic for both the public and attorneys who need a primer on this area of the law.

And so, why would you need to know anything about probate law? Perhaps a family member has recently passed away – this is your court. Are you caring for a loved one and needing more information about making decisions on their behalf? Again, this is your court. Wanting to get married in South Carolina? Yep, they do that too. Want to get divorced? Well, that’s another court entirely.

In this blog, I hope to provide you with basic information on the myriad of issues that are raised in this area of the law and ensure you know when you need to seek legal assistance.

Dorchester County's New Courthouse

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