South Carolina Criminal Lawyer Blog

In an unpublished opinion, Stiggers-Smith v. Smith, the South Carolina Court of Appeals per curiam affirmed a family court decision finding the parties entered into a common law marriage. The evidence included that the parties lived together in several states, the respondent used the appellant's last name once moving to South Carolina, and did not correct any lawyers, friends, salesmen, when they referred to the respondent as his wife. The South Carolina appellate court held the agreement to enter into a common law marriage was inferred by the actions of the parties and the circumstances.

Circumstantial evidence is often used to prove a common law marriage, especially evidence showing that the parties held themselves out to the public as husband and wife and lived together for a long period of time.

South Carolina is one of the few states that still recognizes common law marriages. Every South Carolina divorce lawyer knows that a common law marriage can not be proved merely by showing that a couple lives together. In Horry County family court, evidence that the parties actually held themselves out as a married couple is crucial. This evidence can include joint tax returns, joint checking accounts, using the same last name, and openly referring to each other as husband and wife.

Once a common law marriage is established in a South Carolina family court by a divorce attorney or family lawyer, it is given the same force and effect as a regular marriage in all family court proceedings. Therefore, a party that establishes a common law marriage is entitled to equitable distribution of the marital assets and potentially alimony. The Stiggers-Smith case shows that common law marriage is still a viable cause of action in South Carolina and can be proved through circumstantial evidence.