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Can Same-Sex Couples Be Common Law Married?

By Christopher Coble, Esq. | Last updated on

Almost two years ago, the Supreme Court ruled same-sex couples have the right to marry. And while that answered one fundamental question, it left many others up in the air. While debates and court cases have continued over legal rights and benefits for same-sex spouses, and whether businesses may deny service to same-sex couples, one overlooked vestige of legal tradition was common law marriage.

Perhaps that's because only certain states recognize common law marriages in the first place, but many were left wondering whether common law marriage applied to same-sex couples. And now we might have a more definitive answer to that question, after a South Carolina court ruled that a same-sex couple who lived together for about 40 years had a common law marriage.

Not So Common Law

Currently, only 16 states recognize common law marriage. However, all states recognize legal marriages created in other states. Therefore, if a couple meets the legal requirements for common law marriage in a state that recognizes them and then moves to a state that doesn't, they remain legally married in that new state.

While state law may vary on the issue, there are generally four requirements to create a common law marriage:

  • You must live together, although the amount of time required varies by state;
  • You both must have the legal right or "capacity to marry," meaning you both must be of legal age, sound mind, and not already married to someone else;
  • You both must intend to be married; and
  • You both must hold yourself out to friends and family as being a married couple, like using the same last name, referring to each other in public as "husband" or "wife," or sharing joint bank accounts or credit cards.

State of the Law

While the District of Columbia and some states like Texas have already begun recognizing same-sex common law marriage, the South Carolina ruling took the concept a step further. A family court judge ruled that Obergefell v. Hodges -- the Supreme Court case legalizing same-sex marriage -- applies retroactively, and a recently separated same-sex couple were common law married since 1987.

Debra Parks and her partner were separating after almost four decades together, during which they lived as any normal couple would. "I was in a same-sex relationship for all those years," Parks told the Herald. "We owned a house together. We were a family, even when society didn't accept it." When it came time to divide that shared property and make spousal support decisions, her ex contended they were not legally married.

But Judge Thomas White disagreed, finding that a common law marriage had been created when Parks divorced her husband in 1987, ten years after she and her unnamed spouse had become a couple. It is believed to be the first time a judge has applied the Supreme Court ruling retroactively to find a same-sex common law marriage. But, considering how many same-sex couples lived together and held themselves out as married while being denied legal recognition, it is unlikely to be the last.

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