SC Common law marriage is no more – this affects the workplace how?

August 2nd, 2019 Benjamin Dudek at Fisher Phillips

South Carolina Abolishes Common Law Marriage:  The Impact on Workplace Law

The South Carolina Supreme Court just ruled that the state will no longer recognize common-law marriages. This decision will have a direct impact on South Carolina workplace law, requiring many employers to adjust their employment policies and practices.

What Is Common Law Marriage?

Common-law marriage is a judicially created doctrine in which persons can be considered married by the courts without holding a formal ceremony or obtaining a marriage license from the state. It typically results from a relationship where the parties have been cohabitating for a certain period of time and holding themselves out to the public as spouses. The doctrine is usually invoked during divorce cases or probate proceedings.

What Happened?

With its July 24 ruling, the South Carolina Supreme Court found that, for a variety of reasons – including that determining whether those in question had mutually agreed to be considered married was often a guessing game – it was time for South Carolina to join the majority of states in abandoning the doctrine. Now, all marriages under South Carolina law that are entered into on or after July 24, 2019, will require a license.

What Do Employers Need To Know About The Decision?

Employers need to be aware of this important decision if an employee claims they are common law married for purposes of benefit plans and leave policies, particularly those created to comply with the Family and Medical Leave Act (FMLA). Under the FMLA, employees may take leave to care for a “spouse” who has a serious health condition, including a common-law spouse when that marriage is recognized by state law. Given that South Carolina will no longer recognize common law marriages, employees who allege they were common-law married on or after July 24, 2019, will no longer have the right to claim benefits or protection under the FMLA.

Although the state has abolished common law marriage prospectively, employers should understand that common law marriages entered into prior to July 24, 2019, are still considered valid. Accordingly, employers will face issues regarding common law marriage for the foreseeable future. Employers may request reasonable documentation showing the existence of such marriage, as allowed by the FMLA. In addition, employers may need to revise their written policies and should coordinate with their FMLA administrators to ensure they understand and apply this critical distinction. 

We will continue to monitor any further developments and provide updates on this and other labor and employment issues affecting South Carolina employers, so make sure you are subscribed to Fisher Phillips’ alert system to gather the most up-to-date information. If you have questions, please contact your Fisher Phillips attorney or any attorney in our Columbia office.


This blog was written by Benjamin Dudek at Fisher Phillips, which authors our South Carolina Human Resources Manual. Fisher Phillips also authors our Model Policies and Forms for Missouri EmployersModel Policies and Forms for Kansas Employers, and Workplace Safety and Health Compliance Manual. You can find more Legal Alerts on their website.