Litigation

In order to prove the existence of a common law marriage, the parties must affirm their intent to be married in a jurisdiction that recognizes common law marriage and such evidence must be sufficiently presented at trial. Callen v. Callen, Opinion No. 26041, Supreme Court of South Carolina, Sept. 19, 2005.

Page and Sean never married in a legal ceremony, but cohabited in the states of New York, Florida and Massachusetts, as well as in Ireland, as though they were husband and wife. They had two children together. During the course of the relationship, Page relocated to South Carolina with the children of the parties. Page claimed that Sean also relocated, but Sean claimed that he had maintained his residence in Georgia the entire time Page resided in South Carolina, and that his separate South Carolina residence was only maintained so that he could visit his children. Thereafter, Page sought a divorce and ancillary relief, claiming the parties had a common law marriage under South Carolina law. The trial court agreed, and Sean appealed. The appellate court reversed and remanded, holding that the court below cited no acceptable legal precedent for its decision. It held that for a common law marriage to exist, the two parties must contract to be married while in a jurisdiction that recognizes common law marriage. Here, although the parties maintained relationships in several jurisdictions, none of those jurisdictions recognized common law marriage. Therefore, the appellate court concluded, the parties had to reaffirm their intent to be married while they were in South Carolina. The parties could not prove such intent based upon the evidence presented. The court considered that Sean maintained a separate residence in South Carolina, as well as one in Georgia. It remanded the matter for further evidence to be presented on the intent of the parties.