Common Law Marriage in South Dakota: Is It Recognized? (2026)

South Dakota does not recognize the formation of new common law marriages. State law abolished common law marriage formation decades ago under SDCL 25-1-29, which provides that marriages consented to and consummated before July 1, 1959, are not invalidated, but makes clear that new common law marriages cannot be formed. South Dakota does recognize a valid common law marriage formed in another state.

Information last verified on June 2, 2026.

Jurisdiction scope: This article addresses South Dakota state law on common law marriage under SDCL 25-1-29 and related statutes. For a state-by-state comparison, see Common Law Marriage by State.

Does South Dakota Recognize Common Law Marriage?

South Dakota does not permit couples to form a new common law marriage within the state. SDCL 25-1-29 is the governing statute. It provides that marriages consented to and consummated before July 1, 1959, are not rendered invalid by the statute, but the clear implication of the provision is that common law marriages formed on or after that date have no legal standing in South Dakota.

The July 1, 1959, cutoff predates nearly every person who would be a party to a marital dispute today. As a practical matter, this means South Dakota has not recognized new common law marriages for well over sixty years. Any couple that began cohabiting after 1959, no matter how long they have lived together, no matter how they describe their relationship to others, and no matter what documents they have signed together, has not formed a legally recognized common law marriage in South Dakota.

South Dakota instead requires couples who wish to be legally married within the state to obtain a marriage license under SDCL 25-1-1 and to have their marriage solemnized by an authorized official under SDCL 25-1-15. Without those steps, no marriage is created under South Dakota law, regardless of the nature of the parties' relationship.

The SDCL 25-1-29 Grandfather Provision

SDCL 25-1-29 preserves the legal status of common law marriages that were both consented to and consummated before July 1, 1959. The statute did not retroactively void those pre-1959 marriages; instead, it fixed a date beyond which no new common law marriages could be formed in South Dakota.

A person seeking to rely on a pre-1959 South Carolina common law marriage in a legal proceeding would need to establish that all of the elements of a valid common law marriage under the law that existed before the cutoff date were present before July 1, 1959. Those elements generally required: (1) legal capacity of both parties to marry; (2) a present, mutual agreement between the parties to be husband and wife; and (3) cohabitation and public holding out as a married couple.

Because the July 1, 1959, cutoff is now more than sixty-five years in the past, live disputes over the validity of a pre-1959 South Dakota common law marriage are rare. However, the statute remains in force and governs the recognition of any such historical marriages that might arise in probate, inheritance, or benefits disputes.

Does South Dakota Recognize a Common Law Marriage From Another State?

Yes. South Dakota recognizes a valid common law marriage formed in another state, provided the couple met the legal requirements of that other state at the time the marriage was created. This follows the Full Faith and Credit Clause of the U.S. Constitution and the general conflicts-of-law principle that a marriage valid where celebrated is valid everywhere.

Several states still allow new common law marriages to be formed as of 2026, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, and the District of Columbia. If a couple formed a valid common law marriage in any of those jurisdictions and later moved to South Dakota, their marriage would be recognized by South Dakota courts and government agencies.

For example, a couple who lived in Colorado and satisfied Colorado's requirements for a common law marriage under C.R.S. 14-2-109.5, including both parties being at least 18 years old, before relocating to South Dakota would have their marriage recognized throughout South Dakota. South Dakota's own prohibition on forming new common law marriages does not affect recognition of out-of-state marriages that were validly created under the laws of another state.

This out-of-state recognition matters for inheritance rights, insurance beneficiary designations, spousal privileges in legal proceedings, access to marital property protections, and entitlement to spousal benefits from employers and government programs.

How a Common Law Marriage Is Proved in South Dakota

Because a common law marriage involves no official license or record, proving one requires assembling documentary and testimonial evidence of the key elements. South Dakota courts, when called upon to evaluate a common law marriage claim, look at whether the elements of the marriage were satisfied in the state where the marriage was formed.

For an out-of-state common law marriage being asserted in a South Dakota proceeding, the relevant evidence includes:

• Joint federal and state income tax returns filed with both parties identified as married
• Joint bank accounts, credit cards, or investment accounts in both names identifying a spousal relationship
• Deeds, leases, or mortgage documents listing both parties as husband and wife
• Insurance policies naming the other party as a spouse
• Affidavits from friends, family, neighbors, or coworkers who knew the couple as married
• Correspondence, cards, or documents in which the parties referred to each other as husband and wife
• Records from the state where the marriage was formed demonstrating compliance with that state's requirements for common law marriage

The burden of proof rests on the party asserting the marriage. Courts evaluate the totality of the evidence rather than relying on any single document.

South Dakota Marriage License Requirements

Because South Dakota requires a marriage license for all marriages formed within the state after 1959, it is worth understanding what that process involves for couples who want to formalize their relationship in South Dakota.

Under SDCL 25-1-1, any person who wants to enter into a marriage contract in South Dakota must first obtain a marriage license from the county register of deeds. Both parties must appear in person, provide proof of identity and age, and pay the applicable fee. South Dakota does not impose a waiting period between issuance of the license and the ceremony.

Solemnization must be performed by an authorized officiant, which under SDCL 25-1-15 includes any minister, priest, rabbi, or other clergy member, a judge of any court of record, a clerk of courts, a notary public, or any other person authorized by state law. The signed marriage certificate is then filed with the county register of deeds.

For a couple currently living together in South Dakota who wish to have the legal protections of marriage, the path forward is to obtain a license and have their marriage solemnized. There is no mechanism under South Dakota law to retroactively establish or recognize a new common law marriage formed within the state.

How a Common Law Marriage Ends in South Dakota

A valid common law marriage recognized in South Dakota, whether a pre-1959 South Dakota marriage or a valid out-of-state common law marriage, ends only through formal divorce or the death of a spouse. There is no such thing as a "common law divorce."

Parties cannot dissolve a recognized common law marriage by simply separating, ceasing cohabitation, or declaring the relationship over. If a valid common law marriage is recognized under South Dakota law, one party must file a divorce action in South Dakota circuit court, follow the statutory procedures under SDCL Chapter 25-4, and obtain a divorce decree. Until that decree is issued, both parties remain legally married with all of the associated legal rights and obligations.

This means a person who believes they ended an out-of-state common law marriage by moving to South Dakota or by separation may in fact still be legally married. Entering into a new marriage without first obtaining a divorce would expose that person to legal complications.

The 7-year myth: Many people believe that living together for seven years automatically creates a marriage, or that a couple must be separated for seven years to end one. Neither proposition is true in South Dakota or in any other state. South Dakota has not recognized common law marriage formation since 1959, and separation alone never dissolves a marriage in any U.S. jurisdiction. The so-called 7-year rule has no basis in South Dakota law or in the law of any other state.

South Dakota Alimony and Common Law Marriage

If a valid out-of-state common law marriage is recognized in South Dakota, the parties have the same rights and obligations as spouses in a formally licensed marriage. That includes the potential for spousal support upon divorce under South Dakota law. South Dakota courts have authority to award alimony under SDCL 25-4-41 in divorce proceedings, considering factors such as the length of the marriage, the earning capacity of each party, and the division of property.

For information about how South Dakota handles alimony, see South Dakota Alimony Laws.

Child support obligations arise from parentage, not marital status, and are governed by the South Dakota Department of Social Services child support guidelines. For South Dakota child support rules, see South Dakota Child Support Laws.

Legal disclaimer: This page provides general legal information about South Dakota common law marriage law based on statutes verified as of June 2, 2026. Laws change; this article may not reflect the most recent amendments. This page does not constitute legal advice and does not create an attorney-client relationship. Common law marriage issues are fact-specific and can affect significant legal rights, including property, inheritance, and benefits. Consult a licensed South Dakota family law attorney for advice about your particular situation.

Related South Dakota Laws

• South Dakota Alimony Laws
• South Dakota Child Support Laws
• Common Law Marriage by State

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Sources

• SDCL 25-1-29: Common-law marriages. South Dakota Legislature. https://sdlegislature.gov/Statutes/25-1-29
• SDCL 25-1-1: License required for marriage contract. South Dakota Legislature. https://sdlegislature.gov/Statutes/25-1-1
• SDCL 25-1-15: Solemnization of marriages. South Dakota Legislature. https://sdlegislature.gov/Statutes/25-1-15
• Full Faith and Credit Clause, U.S. Const. art. IV, sec. 1. https://constitution.congress.gov/constitution/article-4/
• Cornell Law School Legal Information Institute: Common Law Marriage. https://www.law.cornell.edu/wex/common-law_marriage

Last updated: June 2, 2026.