Did living together for years automatically create a common law marriage in South Carolina?

Plain-English summary

A police victim advocate asked for clarification about common law marriage. The Attorney General's 2001 informal letter explained that living together for a fixed number of years did not automatically make a couple married. The decisive issue was their mutual agreement to be husband and wife, assessed from the facts of their relationship. A court ordinarily resolved that issue when a dispute over an estate, a later marriage, or property made marital status important.

The letter identified possible evidence of intent, including how the couple presented themselves publicly, shared expenses and accounts, filed tax returns, used surnames, and referred to each other. It cautioned that an impression of marital status by itself might not decide rights to personal property. The office did not decide the status of the particular couple described in the request.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did living together for years make a South Carolina couple married under common law?
A: The 2001 letter said no. Cohabitation and elapsed time alone did not transform a relationship into marriage without evidence of an agreement to be married.

Q: What evidence did the AG identify for a common law marriage?
A: It listed the couple's public presentation, surnames, contracts, joint accounts, joint tax returns, shared expenses, use of “husband” or “wife,” and long social acceptance as married. The inquiry centered on mutual intent, not a required checklist.

Q: Who ordinarily decided a disputed marital status?
A: The letter said a judge usually made that legal determination after a dispute brought the facts before a court.

Q: Did the AG decide who owned the couple's personal property?
A: No. It declined to comment on any particular case and warned that perceived marital status alone might not resolve possession, use, or treatment of property.

Background and statutory framework

The opinion described common law marriage as a conclusion drawn from case law and particular facts, with no fixed statutory elements or precise date when it necessarily began. Its discussion addressed the advocate's question through prior cases on intent and cohabitation.

Citations and references

• Cathcart v.Cathcart
• Barker v. Baker
• Owens v. Owens
• Campbell v. Christian

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-22-2001-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01feb-22-mccarson.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
C H ARUE CONDON
ATIORNEY GENERA L

February 22, 2001

Ms. Ann McCarson
Victim Advocate
Easley Police Department
Post Office Box 466
Easley, SC 29641
Dear Ms. McCarson:
Your letter ofF ebruary 1, 2001 asking for clarification regarding common law marriage was referred to me for response.

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By its very nature, the concept of common law marriage derives from case law and therefore has no fixed elements that a statute would provide. A relationship is deemed a common law marriage as a legal conclusion, based on particular factual circumstances. Most cases on this topic stem from estate disputes arising from the death of one partner, subsequent marriages or more closely to the factual situation you pose, division of property. Therefore, marital status under common law is usually determined by a judge after parties bring these types of disputes before the court. Parties often need to establish a common law marriage, or lack thereof, in order to ascertain their relative rights and obligations. Most cases declaring or denying a common law union demonstrate that the intention of the parties primarily determines whether a particular relationship has common law marital status. See Cathcart v.Cathcart, 307 S.C. 322, 414 S.E.2d 811 (Ct. App. 1992); Ex Parte Blizzard, 185 S.C. 131, 193 S.E.2d (1937). There needs to be evidence of "a mutual agreement between the parties to assume toward each other the relation of husband and wife." Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 64 7, 651 ( 1960). Intent of the parties is derived not only from how they present their relationship to the community at large but can also be inferred from factors such as: cohabitation; use of surnames; entering into contracts together; joint checking accounts; joint filing of tax returns; sharing medical bills and personal expenses; referring to each other with the title of "husband'' or "wife;"and long term social acceptance of the couple as married. See Barker v. Baker, 330 S.C. 361 , 499 S.E.2d 503 (Ct. App. 1998); Owens v. Owens, 320 S.C. 543, 466 S.E.2d 373 (Ct. App. 1996); Cathcart, 307 S.C. at 324, 414 S.E.2d at 812.

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Ms. McCarson
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February 22, 2001

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The situation you pose in your correspondence demonstrates a common misconception about common law marital status. There is no precise fixed point in time that a common law marriage comes into existence. Campbell v. Christian, 235 S.C. 102, 105, 110 S.E.2d 1, 4 (1959). As Campbell further iJlustrates, "[i]llicit relationship, though accompanied by cohabitation, is not transformed into the legal state of marriage by mere lapse of time." Id Therefore, the couple in your scenario may live together for years, but if they do not do those things necessary to demonstrate their intent to enter into a marital relationship, they are not married under the common law. Furthermore, as stated previously, any assessment of their marital status and their rights therein, is usually determined by a court oflaw. Without commenting on any particular case, a perception of a couple's marital status, without more, may not be dispositive of all issues regarding appropriate possession, use or treatment of personal property. I hope the information provided herein proves helpful to you. This letter is an informal opinion. It has been written by a designated Assistant Attorney General and expresses the opinion of the writer as to the specific questions asked. It has not been scrutinized by the Attorney General nor published in a manner consistent with a formal opinion. Very truly yours,

Assistant Attorney General