Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, September 23, 2005

Case Law Development: Prior Cohabitation in Non-Common-Law-Marriage States Is an "Impediment" to Common Law Marriage

The South Carolina Supreme Court reversed a trial court’s finding of common law marriage between a couple who lived in various states over their 15-year relationship in which they raised two children together.  Because the couple began their cohabitation in a state that does not recognize common law marriage, the Court holds there was an “impediment” to marriage.  The court then treated this impediment in the same way it could any other impediment, such as one party's existing marriage to a third person.  According to the court, in these situations, “after the impediment is removed, the relationship is not automatically transformed into a common-law marriage. Instead, it is presumed that relationship remains non-marital. For the relationship to become marital, there must be a new mutual agreement either by way of civil ceremony or by way of recognition of the illicit relation and a new agreement to enter into a common law marriage.”  Accordingly, the court found that the trial court erred in considering any evidence of the couple’s actions and intent while they lived in other states.

The dissenting justice would have found that cohabitation in a non-common-law state should not be treated as an impediment and would have given greater deference to the trial court’s determination.

Callen v. Callen, 2005 S.C. LEXIS 265 (September 19, 2005)
(Opinion on the web at last visited September 20, 2005 bgf)

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