family law

Can a person be “common law married” while legally married to someone else?

An older gentleman met with me recently to discuss his desire to end his marriage. Both he and his wife were on their second marriages. They had no children and only some jointly acquired property.  He told me that they decided to be Common Law married in 2010 so his girlfriend could get on his health insurance plan as his spouse. They were required to sign an Affidavit for the insurance company attesting to the same. They never obtained a marriage license.

He next told me that one year after signing the Affidavit for the insurance company his wife finally got divorced from her former husband!

Common law marriage was ended by the South Carolina Supreme Court about 2 years ago, but only for those common law marriages that are alleged to have occurred after the date of the opinion (July 24, 2019). Stone v. Thompson, 428 S.C. 79 (S.C. 2019).  My client’s “marriage”, if it was valid, was years earlier.  

As we can only be married to one person at a time, I informed my client that, in fact, he did not marry his girlfriend when he thought he did.  However they could still be common law married, if sometime after the divorce “there [was] a new mutual agreement, either by way of civil ceremony or by way of a recognition of the illicit relation and a new agreement to enter into a common law marriage arrangement. ” Byers v. Mount Vernon Mills, Inc., 268 S.C. 68, 71 (S.C. 1977).  

Without a “marriage” there can be no divorce, no property division, no alimony, no sharing of retirement accounts, etc.

My client seemed to be on good legal ground. They had never filed taxes jointly, they never signed another Affidavit attesting to a “common law marriage”, and there was no new “ceremony”. Unfortunately there is no way to be absolutely certain without litigation and appeals, but I was confident enough to recommend that he take that position at the outset.

It was correct for the court to abolish common law marriage.  There is no reason any longer to not require a marriage license. My client could face a difficult litigation in the family court over this issue as his partner is not likely to give up claims she would have been entitled to had she been legally married.

Be well, stay safe,

Guy Vitetta

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