Whether common-law marriage remains legal in South Carolina is up to the state Senate.

South Carolina is one of only a handful of states that allow heterosexual couples to become legally married without a license or ceremony. The relationship is called common-law marriage.

Moralists take exception. They brand it “living in sin.” Others say it’s messy legally. Now, a move is afoot to abolish the practice, on the books for decades.

On April 27, the S.C. House of Representatives voted overwhelmingly, 104-4, to end common-law marriage.

Specifically, the legislation would eliminate a state statute that enables a person without a marriage license to receive some spousal benefits in cases of the death of or separation from a partner. Under the bill, South Carolina would stop recognizing new common-law marriages on Jan. 1, 2006.

Efforts to outlaw common-law marriage have failed before, meeting stiff resistance in the state Senate. The measure is now in the Senate, but senators don’t appear enthusiastic. A Senate Judiciary subcommittee, headed by state Sen. Jim Ritchie, R-Spartanburg, has yet to schedule hearings on the House bill.

Time is of the essence. The General Assembly is set to call it quits for the year in three weeks.

“I’m going to have to keep the Senate under a more watchful eye this time,” said state Rep. J. Seth Whipper, D-Charleston, the bill’s primary sponsor.

But Sen. Jake Knotts, R-Lexington, doesn’t want to ban common-law marriages.

“If couples want to live together without getting married, that’s their business,” he said. “We need to stop legislating morality around here. These couples get along better than those who have a piece of paper.”

State family court and probate judges favor the bill.

They say eliminating common-law marriages would make it easier for them to probate wills, settle estates and rule in child-custody cases.

“The problem is common-law marriage don’t exist until the court says it does,” said state Rep. Phil Sinclair, R-Spartanburg, a family court attorney. “And common-law marriages are difficult to prove.”

House Judiciary Committee chairman Jim Harrison, R-Richland, said common-law marriage “creates a legal situation where no one knows what their rights are.”

Common-law marriage arose back when a lot of people didn’t have easy access to judges or justices of the peace.

“Today, anybody can get married if they choose,” Sinclair said. “If you want the benefits of marriage, you have to marry.”

Gov. Mark Sanford declines to say whether he would sign a bill abolishing common-law marriage. He wants to see the bill’s final wording before deciding, spokesman Will Folks said.

“The governor’s thinking has always been that marriage ought to be more about a conscious decision, not just the passing of a specified amount of time,” Folks said.

South Carolina is one of eight states that recognize common-law marriages. The others are Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, and Texas. The District of Columbia also recognizes the relationships.

Most states have abolished common-law marriage. Critics say the arrangements encourage fraud and debase conventional marriage.

In those states that permit common-law marriage, the elements of union vary slightly.

In order to have a valid common-law marriage in South Carolina, a couple must:

• Live together for seven years

• Hold themselves out as a married couple. Typically, this means using the same last name, referring to one another as “my husband” or “my wife,” and filing a joint tax return.

• Intend to be married.

State Rep. Ken Kennedy, D-Williamsburg, said abolishing common-law marriage will solve nothing.

“Couples living in sin has been a part of life as long as I can remember. How are you going to stop it? You’re not. This is just another attempt to legislate morality. It won’t work.”

Reach Bandy at (803) 771-8648 or lbandy@thestate.com.