South Carolina Abolishes Common-Law Marriage

On July 24, 2019, the South Carolina Supreme Court announced that the state will no longer permit common-law marriages. However, valid common-law marriages in effect prior to July 25, 2019, will continue to be recognized.

In repudiating the common-law marriage doctrine, South Carolina follows other states, including Alabama, Georgia, and Pennsylvania. The court determined that many of the original reasons for the doctrine, such as the protection of child support and inheritance rights, no longer depend upon marital status. The opinion also acknowledged the lack of clarity regarding common-law marriage requirements, which resulted in confusion and litigation. Accordingly, the decision was intended to promote predictability by requiring couples wishing to be married to comply with the statutory requirements.

The court’s ruling will affect benefit administration not only within South Carolina, but also beyond the state’s borders, as South Carolina residents may work in or move to other states. Affected employers will need to consider the change when administering leaves, including those under the Family and Medical Leave Act (FMLA). The FMLA permits leave to care for a spouse or stepchild with a serious health condition. The FMLA recognizes a spouse or stepchild of a common-law marriage that was validly entered into pursuant to state law.

Following the decision, an employee claiming a common-law spouse under South Carolina law for benefit purposes would need to establish that the common-law marriage occurred prior to July 25, 2019. The employer can request reasonable documentation (such as an affidavit that marriage requirements were satisfied) to support such a claim. After July 25, 2019, employees entering South Carolina marriages must satisfy the statutory requirements and obtain a valid marriage certificate.

Opinion No. 27908 »