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Common Law Marriage

Common Law Book Unlike North Carolina divorce, in South Carolina, the divorce and family law of the state recognizes common law marriage. In fact, South Carolina is one of only 15 states (the District of Columbia also recognizes common law marriage) that formally recognize common law marriage. If you’re not sure whether you’re legally married, it’s crucial you talk to a Divorce Lawyer in Rock Hill SC right away.

Common law marriage is a marriage recognized by the law even when a couple does not acquire a marriage license or have a formal ceremony in front of a minister, judge or justice of the peace. However, in order to establish common law marriage, the petitioner must meet certain requirements under South Carolina law.

Elements of Common Law Marriage in South Carolina

Under the South Carolina family law, common law marriage requires: (1) a couple to have the requisite mental capacity to be married, (2) a mutual understanding or agreement between the couple of an intent to be married, (3) the couple holds themselves out to the public as being married and (4) the couple lives together (cohabitation).

Mental Capacity

Mental capacity means that the parties must be mentally competent and understand they are agreeing to a marriage. In fact, marriage is a contract thus the requirements for entering into a marriage are the same requirements for entering into a contract under South Carolina law. Additionally, the parties must be 18 years of age at the time the marriage contract is entered into.


A couple can establish intent to be married by executing a written agreement to be married or by simply calling each other husband and wife. That is, a common law marriage can be established formally or informally.

Furthermore, under South Carolina law, the couple must hold themselves out to the public as being married. A couple can establish marriage among the public by, among other things, calling themselves husband and wife, filing joint checking accounts, joint tax returns, buying a house together, etc. Additionally, if one party to the couple says the two of you are married and you say nothing, your silence can be viewed as acceptance that a marriage arrangement has been established.


Cohabitation means that the parties must live together in the same house or apartment. However, under South Carolina law, there is no strict time frame as to how long a couple must live together in order to establish a common law marriage. In fact, a common law marriage can be established by living together for a few nights or weeks. Additionally, even when the parties lived together for multiple years, South Carolina courts have found that a common law marriage did not exist. Essentially, the length of time the parties live together is not determinative of whether a common law marriage has been established. Courts evaluate whether cohabitation is indicative of a common law marriage on a case by case basis.

South Carolina Common Law Marriage: Can a Court Find You to be Legally Married?

It is important for you to be aware that under the Divorce Laws in South Carolina could recognize that you are “common law married” even if you did not realize that was the case. Furthermore, a valid common law marriage in South Carolina is recognized by all 49 states if you move from South Carolina and make a new state your domicile.

Call Now for a Consultation With a Family lawyer

At CarolinaAttorneys.com, we can help you navigate divorce and family issues. As North and South Carolina domestic lawyers, we understand the nuances of North Carolina and South Carolina divorce laws and can guide through the process. We understand the sensitive nature of separation and divorce and will zealously advocate and negotiate on your behalf.

Rock Hill, South Carolina Law Office
331 E Main St #200
Rock Hill, SC 29730
Phone: 803-504-6686
** By Appointment Only

Attorneys Bill Powers is licensed in North Carolina and only serves as a Charlotte Divorce Lawyer.

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