South Dakota
Common Law Marriage in South Dakota: Is It Recognized? (2026)
Independently fact-checked against primary sources (last audited August 18, 2026). · Reviewed by the RecordingLaw editorial team. · Law checked current as of August 18, 2026. How we verify our legal content
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 and to have their marriage solemnized. Under SDCL 25-1-1, consent between the parties alone does not constitute a marriage; it must be followed by a solemnization. Without a license and solemnization, 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 Dakota 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. The controlling authority is SDCL 25-1-38, which provides that a marriage contracted outside South Dakota that is valid under the laws of the jurisdiction where it was contracted is valid in South Dakota. That statute codifies the general conflicts-of-law principle that a marriage valid where celebrated is valid everywhere.
SDCL 25-1-38 still contains language purporting to exclude marriages between two people of the same gender. That exception is no longer enforceable. In Obergefell v. Hodges (2015), the U.S. Supreme Court held that states must both license marriages between same-sex couples and recognize same-sex marriages lawfully performed in other states. The obsolete wording simply remains on the books.
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.
South Dakota requires any person who wants to enter into a marriage contract to first obtain a marriage license from the county register of deeds. Under SDCL 25-1-1, consent between the parties alone does not constitute a marriage; it must be followed by a solemnization.
Solemnization must be performed by an officiant authorized under South Dakota law. SDCL 25-1-15 makes it a Class 1 misdemeanor for a register of deeds to grant a marriage license contrary to the state's marriage laws. 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. If you may still be married under another state's common law, ask a South Dakota family lawyer for a free case evaluation to confirm your status before you remarry (attorney advertising).
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.
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Frequently Asked Questions
Does South Dakota recognize common law marriage?
South Dakota does not allow new common law marriages to be formed. Under SDCL 25-1-29, marriages consented to and consummated before July 1, 1959, are not invalidated, but no new common law marriages can be formed in South Dakota. South Dakota does recognize a valid common law marriage formed in another state that allowed it.
When did South Dakota abolish common law marriage?
South Dakota abolished the formation of new common law marriages through SDCL 25-1-29, which set a cutoff of July 1, 1959. Any marriage consented to and consummated before that date was preserved, but no common law marriage formed on or after that date is recognized under South Dakota law.
How long do you have to live together to be common law married in South Dakota?
You cannot form a common law marriage in South Dakota regardless of how long you have lived together. South Dakota has not recognized new common law marriages since 1959. The 7-year rule is a myth; no state sets a minimum number of years of cohabitation for common law marriage.
Does South Dakota recognize a common law marriage from another state?
Yes. South Dakota recognizes a valid common law marriage formed in any state that allows such marriages, provided the couple met that state's legal requirements when the marriage was created. SDCL 25-1-38 provides that a marriage contracted outside South Dakota and valid under the laws of the jurisdiction where it was contracted is valid in South Dakota.
What does SDCL 25-1-29 say about common law marriage?
SDCL 25-1-29 provides that marriages consented to and consummated before July 1, 1959, are not rendered invalid by the statute. This grandfather provision preserved pre-1959 common law marriages while effectively abolishing the formation of any new common law marriages in South Dakota after that date.
How does a common law marriage end in South Dakota?
A valid common law marriage recognized in South Dakota ends only through formal divorce or death of a spouse. There is no common law divorce. Parties must obtain a divorce decree from the South Dakota circuit court under SDCL Chapter 25-4. Simply separating or ending cohabitation does not legally dissolve the marriage.
Can I formalize a relationship in South Dakota without a common law marriage?
Yes. South Dakota requires a marriage license and solemnization by an authorized officiant to formalize a relationship; under SDCL 25-1-1, consent alone does not create a marriage without a solemnization. Couples who want the legal protections of marriage in South Dakota must follow that process. There is no mechanism to create a new common law marriage within the state after 1959.
Updates
Corrected the legal basis for South Dakota's recognition of out-of-state common law marriages, which is SDCL 25-1-38 rather than the Full Faith and Credit Clause, and noted that the statute's same-sex exclusion is unenforceable after Obergefell v. Hodges.
Independently fact-checked against the cited primary sources; governing law re-checked for recent changes
Corrected two mis-cited statutes: SDCL 25-1-1 only defines marriage as requiring consent followed by solemnization (it says nothing about a license application, in-person appearance, ID/age proof, or a fee), and SDCL 25-1-15 is a misdemeanor penalty for a register of deeds who wrongfully issues a license (it contains no officiant list). Removed the unsupported procedural specifics attributed to those sections and relabeled the matching Sources entries; also fixed a stray 'South Carolina' reference on this South Dakota page.
Governing law re-checked for recent changes
Reviewed and approved by an editor
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
South Dakota Codified Laws, Chapter 25-1: VALIDITY AND PERFORMANCE OF MARRIAGES
§ 25-1-29Solemnization and recording of marriages required--Common-law marriages prior to 1959 not invalidated.In force
Marriage must be solemnized, authenticated, and recorded as provided in this chapter provided, however, that noncompliance with its provisions does not invalidate any lawful marriage consented to and subsequently consummated prior to July 1, 1959.
Official text (excerpt) · last checked 2026-09-07 · Read the full text in our law library · Verify at sdlegislature.gov
Cited in 8 court opinions in our collectionLatest citing opinion in our collection: 2019
Opinions citing this section in our collection:
- Anderson v. S.D. Retirement Sys. (South Dakota Supreme Court 2019, 2019 S.D. 11)“…t a marriage “be solemnized, authenticated, and recorded.” SDCL 25-1-29. [¶19.] Because Anderson and Cad…”
- Starrett v. Tyon (South Dakota Supreme Court 1986, 392 N.W.2d 94)“…common-law marriage in this state, effective July 1, 1959. SDCL 25-1-29. A marriage license and a ceremony are…”
- Accounts Management, Inc. v. Litchfield (South Dakota Supreme Court 1998, 576 N.W.2d 233)“…consent” followed by “solemnization.” SDCL 25-1-1. Although SDCL 25-1-29 provides that a “marriage must be solem…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 25-1-1Marriage defined--Consent and solemnization required.In force
Marriage is a personal relation, between a man and a woman, arising out of a civil contract to which the consent of parties capable of making it is necessary. Consent alone does not constitute a marriage; it must be followed by a solemnization.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at sdlegislature.gov
Cited in 11 court opinions in our collectionLatest citing opinion in our collection: 2015
Opinions citing this section in our collection:
- Billion v. Billion (South Dakota Supreme Court 1996, 553 N.W.2d 226)“…is a personal relation arising out of a civil contract...." SDCL 25-1-1. When a man and a woman marry, they "co…”
- Rogers v. Rogers (South Dakota Supreme Court 1984, 351 N.W.2d 129)“…bruary 3, 1982. Marriage is, of course, a civil contract. SDCL 25-1-1. Parties have the right to make contrac…”
- Matter of Guardianship of Larson (South Dakota Supreme Court 1998, 579 N.W.2d 24)“…relationship but also a personal and emotional one as well. SDCL 25-1-1. If one is to contemplate the nature an…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 25-1-15Unlawful issuance of license as misdemeanor.In force
Any register of deeds who grants a marriage license contrary to the provisions of this title is guilty of a Class 1 misdemeanor.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at sdlegislature.gov
§ 25-1-38Validity of marriages contracted outside state--Same-sex marriages excluded.In force
Any marriage contracted outside the jurisdiction of this state, except a marriage contracted between two persons of the same gender, which is valid by the laws of the jurisdiction in which such marriage was contracted, is valid in this state.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at sdlegislature.gov
Cited in 4 court opinions in our collectionLatest citing opinion in our collection: 2015
Opinions citing this section in our collection:
- In Re Estate of Duval (South Dakota Supreme Court 2010, 777 N.W.2d 380)“…lidity of marriages entered into in other jurisdictions in SDCL 25-1-38. This statute provides that “[a]ny marr…”
- Hargrave v. Duval-Couetil (South Dakota Supreme Court 2010, 777 N.W.2d 380)“…alidity of marriages entered into in other jurisdictions in SDCL 25-1-38. This statute provides that “[a]ny marr…”
- Rosenbrahn v. Daugaard (District Court, D. South Dakota 2015, 61 F. Supp. 3d 862)“…age is a personal relation, between a man and a woman.... ” SDCL 25-1-38 states that South Dakota recognizes as…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Colorado Revised Statutes, Title 14: Domestic Matters
§ 14-2-109.5Common law marriage - age restrictionsIn forcecited in 10 of our articles
(1) A common law marriage entered into on or after September 1, 2006, shall not be recognized as a valid marriage in this state unless, at the time the common law marriage is entered into: (a) Each party is eighteen years of age or older; and (b) The marriage is not prohibited, as provided in section 14-2-110. (2) Notwithstanding the provisions of section 14-2-112, a common law marriage contracted within or outside this state on or after September 1, 2006, that does not satisfy the requirements specified in subsection (1) of this section shall not be recognized as valid in this state.
Official text (excerpt) · last checked 2026-09-07 · Read the full text in our law library · Verify at olls.info
Also relied on in: Common Law Marriage in Colorado: Requirements & How It Works (2026), Common Law Marriage in Maryland: Is It Recognized? (2026), Common Law Marriage in Alaska: Is It Recognized? (2026)
South Dakota Codified Laws, Chapter 25-4: DIVORCE AND SEPARATE MAINTENANCE
§ 25-4-41Allowance for support when divorce granted.In forcecited in 2 of our articles
Where a divorce is granted, the court may compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects.
Official text (excerpt) · last checked 2026-09-07 · Read the full text in our law library · Verify at sdlegislature.gov
Cited in 88 court opinions in our collectionLatest citing opinion in our collection: 2026
Opinions citing this section in our collection:
- Guindon v. Guindon (South Dakota Supreme Court 1977, 256 N.W.2d 894)“…trial court abused its discretion in entering its judgment. SDCL 25-4-41; SDCL 25-4-44; SDCL 15-6-52(a);…”
- Hanks v. Hanks (South Dakota Supreme Court 1980, 296 N.W.2d 523)“…sitions of the parties, we hold this award to be excessive. SDCL 25-4-41 provides that: Where a divorce is gra…”
- Hautala v. Hautala (South Dakota Supreme Court 1988, 417 N.W.2d 879)“…ance for support does exist when a divorce is granted under SDCL 25-4-41. The October 20, 1986 Judgment and De…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: South Dakota Alimony Laws: How Spousal Support Works (2026)
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Sources and References
- SDCL 25-1-29: Common-law marriages(sdlegislature.gov)
- SDCL 25-1-1: Marriage defined--Consent and solemnization required(sdlegislature.gov)
- SDCL 25-1-15: Unlawful issuance of license as misdemeanor(sdlegislature.gov)
- U.S. Const. art. IV, sec. 1 (Full Faith and Credit Clause)(constitution.congress.gov)
- Common Law Marriage(law.cornell.edu)
- SDCL 25-1-38: Validity of marriages contracted outside state(sdlegislature.gov)
- Obergefell v. Hodges (2015)(law.cornell.edu)
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