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Anne Kelley Russell’s article published in South Carolina Lawyer magazine

South Carolina Lawyers
March 2020

Charleston Estate & Wealth Planning Team member Anne Kelley Russell’s article titled, “From This Day Forward, The Abolishment of Common-Law Marriage in South Carolina” was published in the March issue of South Carolina Lawyer.

The article

The process to obtain a marriage license in South Carolina is fairly simple. First, a couple must appear together at the local probate court and file a written application. There is a 24-hour waiting period after the application is filed before the license can be picked up. After that, the parties can be married. A South Carolina marriage license is valid only for marriages performed in South Carolina by a minister of the Gospel, accepted Jewish rabbi, or an officer authorized to administer oaths in this state, such as a notary public. Currently, the license fee is $70. Marriages conducted with a license are thereafter recorded in public record and are considered valid.

In comparison, two elements must be proven to create a common-law marriage – that the parties had (i) the capacity to marry and (ii) the intention to enter into a marriage contract. Many people mistakenly believe there is a seven year period of cohabitation that creates a common-law marriage. Some couples tell their children and grandchildren they are married, but insist to others that they are not really married. Proving the existence of a common-law marriage is a cumbersome, time-consuming, fact-intensive, and expensive process. The filing fee alone to bring an action in family court or probate court is $150. Therefore, when the South Carolina Supreme Court issued its opinion in Stone v. Thompson prospectively abolishing common-law marriage, it was no surprise that the underlying trial to determine if the parties had a common-law marriage was a cumbersome, time consuming, fact-intensive, and expensive process involving testimony from over 40 witnesses, nearly 200 exhibits, and lasted more than a week.

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