Common-law marriages may vanish

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The bill, already adopted by the House, would force couples who want to become legally married after Jan. 1 to put it on paper, ending state endorsement of a legal option many consider "living in sin."

It could affect such things as joint tax returns and eligibility for insurance benefits through their partner's employer.

Sexual union makes a man and woman "become one" in the eyes of God, said the Rev. Aaron Gowens, pastor of His Way Ministries International Church in Pickens. But the traditional marriage is still important in a lasting commitment, he believes.

"It lets the world know also that you have committed to an eternal lifetime covenant between the two parties and God," he said.

Common-law marriages, which aren't documented so there's no way of knowing how many there are, are now considered legally the same as licensed marriages, experts say. You have to get a divorce if you want to end the relationship. And if you're in a common-law marriage at the death of your spouse, you're entitled to the inheritance.

But proving that you are living in a common-law marriage is such a murky business that many legislators say it is time to do away with the caveat in state law that dates back to the 19th century.

"It kind of removes the gray area," said state Rep. Karl Allen, D-Greenville, who didn't register a vote on the bill but supports it. The House passed it April 27 on a 104-4 vote. The bill, as now written, would allow common-law marriages entered into before Dec. 31 to stand but not allow any new ones after that.

Eight states still recognize such marriages, experts say.

Under current law, there are four elements to common-law marriage, says Roy Stuckey, a professor at the University of South Carolina Law School who specializes in family law.

You have to live together.

You have to "hold yourself out as married," meaning you tell other people you are married.

There can be no legal reason you can't be married, such as that you are already married to someone else.

The relationship as husband and wife must be intentional.

The widely held belief that a seven-year relationship constitutes common-law marriage is a myth, he said.

"This could happen in two hours that you could meet those elements," he said. Or people can live together for decades and not be common-law married.

The reasons for doing away with common-law marriage are primarily related to the difficulties it causes the court system, said state Sen. Larry Martin, R-Pickens, who said he will vote in favor of the bill.

Common-law marriage dates back to the era when it was difficult for people who wanted to get married to make it to a courthouse to file the papers, he said.

"I just don't see the basis or the rationale for that in the day and age in which we live today," he said.

People living in such relationships are often the losers when it comes to such things as inheritance, said Debora Faulkner, Greenville County probate judge.

"The fact of the matter is you are not common-law married until a judge finds that you are," she said.

That requires "clear and convincing" evidence, such as joint tax returns filed as a married couple, using the same last name, testimony from people who knew the couple, documentation on insurance benefits of a spouse through an employer, or joint bank accounts, she said.

The standard of proof is higher for Probate Court than for Family Court because the potential for fraud is higher, she said.

She has seen cases in which a couple lived together for 12 years or more but didn't have proof, so the surviving spouse, who believed the couple had a common-law marriage, wasn't able to receive anything from the estate.

A $35 marriage license can clear up the issue, she said.

The state Association of Probate Judges supports changing the law, she said. Greenville County Family Court judges wouldn't comment Monday.

Ending common-law marriage isn't likely to reduce the number of couples living together without being legally married, though, said Kinly Sturkie, a sociology professor at Clemson University who specializes in marriage and family issues.

The rate of cohabitation is six times what it was in 1970, Sturkie said, but he doesn't believe the rate of common-law marriage has increased at the same pace.

"Many people are wanting to avoid all the complications of the legal aspects of marriage," Sturkie said.