Do You Need a Divorce to End a Common-Law Marriage in South Carolina?

Reviewed by Carrie Warner, Attorney at Law, SC Bar No. 72836 · Last reviewed November 2, 2026

Yes, if a valid common-law marriage was formed in South Carolina before July 24, 2019, it is a real marriage, and the only way to end it is a divorce in family court. South Carolina stopped recognizing new common-law marriages on that date, but it did not cancel the ones that already existed. The hard part is usually not the divorce itself. It is proving, or disputing, that a marriage ever existed.

What a Common-Law Marriage Is

A common-law marriage is a marriage formed without a license or a ceremony. For generations, South Carolina allowed two people to become legally married by agreeing to be married and living as a married couple. There was no paperwork to file and no official record of the date the marriage began.

That is why these marriages cause confusion. Two people may have lived together for years, used the same last name, and called each other “husband” or “wife” without ever thinking about the legal effect. Later, when the relationship ends, one of them may say they were married and the other may say they never were.

Living together, even for a long time, does not by itself create a marriage. What courts have generally looked for is a mutual agreement to be married right now, not a plan to marry someday. Both people also had to be legally able to marry at the time.

The 2019 Change: Stone v. Thompson

In Stone v. Thompson, 428 S.C. 79 (2019), the South Carolina Supreme Court abolished common-law marriage going forward. The decision was issued on July 24, 2019. After that date, no new common-law marriage can be formed in South Carolina, no matter how long a couple lives together or how they present themselves.

The ruling was prospective. That means it only looked forward. A common-law marriage that was validly formed before July 24, 2019, is still a legal marriage today. It has the same standing as a marriage performed by a minister or a probate judge.

The court also made clear that a person claiming a common-law marriage has to prove it by clear and convincing evidence. That is a higher standard than “more likely than not.” It means the evidence must leave the judge firmly convinced that both people agreed to be married.

Why You Cannot Simply Walk Away

If a valid common-law marriage exists, the two of you are married in the eyes of the law. Moving out does not end it. Signing a private agreement does not end it. Only a court order does.

This matters for several reasons:

• Remarriage. If you marry someone else while a prior marriage is still legally in place, the new marriage may be invalid. That can create serious legal and financial problems later.
• Property. A spouse may have a claim to property acquired during the marriage, even if it is titled in only one name.
• Support. A spouse may be able to ask for alimony, just as in any other marriage.
• Death and inheritance. Whether someone was a surviving spouse can affect estates, benefits and beneficiary rights.
• Federal benefits. Programs such as Social Security look at whether a valid marriage existed and how long it lasted.

If you believe you may be in a common-law marriage and want to move on, it is usually safer to resolve the question in court than to assume it away.

How a Common-Law Marriage Is Proven

Because there is no marriage certificate, the family court looks at the couple’s words and conduct. When one person claims a marriage and the other denies it, the court may first have to decide whether a marriage existed at all before it can address property, alimony or a divorce.

Evidence that courts often consider includes:

• Joint tax returns filed as “married filing jointly”
• Insurance policies, benefit forms or medical records listing the other person as a spouse
• Leases, mortgages, loan applications or bank records describing the couple as married
• Wedding rings, an anniversary the couple celebrated, or one partner taking the other’s last name
• Testimony from friends, family and neighbors about how the couple introduced themselves
• Cards, letters, texts or social media posts referring to each other as husband or wife

Evidence can also cut the other way. Tax returns filed as “single,” forms listing “never married,” or statements that the couple planned to marry “one day” can all suggest that there was no present agreement to be married. Judges look at the whole picture, not any one document.

The importance of the start date

Even when both people agree a marriage existed, they may disagree about when it began. The date can make a real difference. Under S.C. Code § 20-3-630, marital property is generally property acquired during the marriage and owned on the date the case is filed. An earlier start date may bring more property into the marital estate. The length of the marriage is also one of the factors courts weigh for alimony and property division.

Legal barriers at the time

A common-law marriage cannot form while one person is still legally married to someone else. If either of you had a prior marriage that had not yet ended in divorce, that can block a common-law marriage during that period. What happens after the earlier marriage ended depends on the facts, and it is a question to take to an attorney.

Same-Sex Couples and Older Relationships

Same-sex couples who lived together before marriage equality reached South Carolina in 2014 and 2015 may wonder whether a common-law marriage could have formed during those years. South Carolina appellate courts have considered such claims, and the outcome has turned on the evidence of a mutual agreement and intent to be married. These cases are fact-specific, so talk with an attorney about how the law applies to your relationship.

In other words, a same-sex couple faces the same proof requirements as any other couple, and the claimed marriage still had to be formed before July 24, 2019. If this applies to you, our pages on pre-Obergefell marriages and same-sex divorce explain more of the background.

Divorce Rules Are the Same as Any Other Marriage

Once a common-law marriage is established, the divorce follows the same rules as a ceremonial marriage. You still need one of the five grounds in S.C. Code § 20-3-10: adultery, desertion for one year, physical cruelty, habitual drunkenness (including narcotic drug use), or living separate and apart without cohabitation for one year. You also must meet the residency rules in S.C. Code § 20-3-30.

The same rights apply too:

• Property division. South Carolina divides marital property through equitable distribution, using the factors in § 20-3-620. There is no automatic 50/50 rule.
• Alimony. A spouse may request alimony under § 20-3-130, subject to the same factors and bars as any other spouse.
• Children. Custody and child support for children are decided under the same best interest standard and guidelines that apply to every family.

For the filing steps themselves, see our guide on how to file for divorce in South Carolina, and the full South Carolina Divorce Guide for every stage of the process.

What If You Started Living Together After July 2019?

If your relationship began, or your agreement to be married was made, on or after July 24, 2019, South Carolina will not treat you as married unless you obtained a marriage license and had a ceremony. That has two sides.

On one side, you do not need a divorce to separate. On the other, the protections of divorce law, such as equitable distribution and alimony, generally do not apply to unmarried partners. Property disputes between unmarried partners are handled differently, and each person usually keeps what is titled in their own name unless another legal claim applies. Couples who live together without marrying may want to consider a cohabitation agreement to spell out who owns what.

A couple who formed a valid common-law marriage in another state that allowed it at the time may be in a different position. Whether South Carolina recognizes that marriage depends on the facts and the other state’s law, so ask an attorney.

Practical Steps if You Think You Are Common-Law Married

1. Write down the timeline. Note when you moved in together, when you first called each other spouses, and any events like a ring or anniversary.
2. Gather documents. Collect tax returns, insurance forms, leases, loan applications and anything else that describes your marital status, whether it helps or hurts your position.
3. List people who knew you as a couple. Friends, relatives, neighbors and coworkers may be able to describe how you presented yourselves.
4. Do not remarry until it is resolved. If there is any chance a prior common-law marriage exists, get advice first.
5. Talk with a family law attorney. An attorney can help you weigh the evidence and decide whether to file for divorce, or ask the court to decide whether a marriage existed.

If the other person denies the marriage, expect the case to focus first on that issue. If both of you agree you were married, the case can often move forward like any other divorce.

Frequently Asked Questions

Does South Carolina still recognize common-law marriage?

Only for marriages formed before July 24, 2019. The Supreme Court abolished new common-law marriages in Stone v. Thompson, but existing ones remain valid and require a divorce to end.

How long do you have to live together to be common-law married in SC?

There has never been a set number of years. The key question is whether both people agreed to be married, not how long they lived together. Living together alone does not create a marriage.

What standard of proof applies to a common-law marriage claim?

The person claiming the marriage must prove it by clear and convincing evidence. That is a higher standard than in most civil disputes.

Do common-law spouses have the same property and alimony rights?

Yes. Once a valid common-law marriage is established, the same equitable distribution and alimony rules apply as in a ceremonial marriage.

Can I remarry without a divorce if we were only common-law married?

Not safely. If a valid common-law marriage exists, it must be ended by a divorce before you marry someone else. Talk with an attorney if you are unsure.

Sources

• S.C. Code Title 20, Chapter 3 (Divorce, grounds, residency, property)
• S.C. Code Title 20, Chapter 1 (Marriage)
• South Carolina Judicial Branch: Opinions (Stone v. Thompson, 2019)
• South Carolina Judicial Branch: Family Court