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Domestic Relations
University of South Carolina School of Law
Montgomery, John E.

Domestic Relations
Prof. Montgomery

I. Common Law Marriage and Rights of Unmarried Cohabitants
A. Common Law Marriage, Presumption of Marriage and Putative Spouses
1. Common Law Marriage
· Common law marriage differs from ceremonial marriage only in the way in which it is entered.
· Consequently, a formal divorce action is necessary to dissolve a common law marriage.
· SC requires 3 things for a common law marriage:
o (1) present agreement to form a marital relationship (intent)
o (2) continuous cohabitation, AND
o (3) a “holding out” – open declaration to the public by both parties that they are husband and wife
o *All 3 things must exist simultaneously.
· Present agreement is the substantive element. It is the most likely to be contested and the hardest to prove.
· Far more weight is given to evidence of cohabitation and holding out.
· Today, a valid common law marriage will be recognized in most states.
· Differences between ceremonial marriage and common law marriage:
o If you are married through a valid ceremonial marriage (license and 2 witnesses) but keep it a secret, you are still married. Unlike with common law marriage, a “holding out” is not required.
o You cannot have a secret common law marriage.
· In re the Marriage of Winegard
o RULE: It is sufficient if the parties cohabitating intend present marriage, and it is immaterial how the intention is evidenced. The woman may be entitled to marital rights if she intends present marriage and the man does not, provided they cohabit and provided his conduct is such as to justify her in believing that he intends present marriage.
o Held: The continuous cohabitation of the parties, the declaration or holding out to the public that they were in fact husband and wife, and Mr. Winegard’s failure to deny the holding out constitutes circumstantial evidence is sufficient to create a fair presumption that a CLM existed.
o Note: It doesn’t take affirmative acts by both parties to infer the existence of a marriage. It only takes affirmative acts by one party and the acquiescence or failure of the other party to deny the other party’s affirmative acts.
o Key: A holding out is evidenced by what the public, not the parties think

to ½ of the estate as a “putative spouse.”
o Putative spouse – one whose marriage is legally invalid but who has engaged in (1) a marriage ceremony or a solemnization, on the (2) good faith belief in the validity of the marriage.
§ A good faith belief in the validity of the marriage must be posited on a view of the facts known to the spouse in question.
o General Rule: A putative spouse is entitled to the same share in this property as would have been accorded a de jure spouse under the community property laws.
o NOTE: You cannot become a putative spouse through a common law marriage. You MUST have a marriage ceremony!

B. The Legal Rights of Unmarried Cohabitants
1. Rights and Duties Between the Parties
In 12 states (including Georgia) it is illegal for a man and a woman to live together without being married. Many courts have a difficult time assigning rights to parties