Chapter Two Establishing the Validity of Marriages

• Library: Marital Litigation in South Carolina (SCBar) (2020 Ed.)

Chapter Two ESTABLISHING THE VALIDITY OF MARRIAGES

A. In General

Questions about the validity of marriages may be presented in the context of actions seeking to establish their validity or to establish their invalidity (annulments). The same issues may also arise in the context of defenses either to actions for divorce or for separate support and maintenance if defendants claim that the alleged marriages were never valid in the first place.

In South Carolina, a valid marriage may only be created by meeting the requirements of relevant statutory law. Marriages that met the criteria for common law marriages before July 25, 2019, are also valid marriages.

B. Subject Matter Jurisdiction

As discussed more fully in the chapter on jurisdiction, if the family court lacks subject matter jurisdiction, it cannot obtain it. A challenge to subject matter jurisdiction can be raised at any time during the proceeding, even at the appellate level. Any action taken by a court without subject matter jurisdiction is void. This includes an objection that statutorily imposed time limits were not observed.

At least for the time being, the family court does not have the authority to determine the validity of marriages other than common law marriages (S.C. Code Ann. § 63-3-530(A) (6) (2009)) or in the context of annulment proceedings (S.C. Code Ann. § 63-3-530(B) (2009)). In an apparent error, the statute that gave the family court the general authority to determine the validity of marriages, S.C. Code Ann. § 20-7-420(5) (Supp.) [now S.C. Code Ann. § 63-3-530(A)(5) (2009)], was removed in 2005 when S.C. Code Ann. § 20-7-420(B) (Supp.) [now S.C. Code Ann. § 63-3-530(B) (2009)], was created to clarify the family court's concurrent jurisdiction with the probate court over common law marriages.

For now, the general authority to determine the validity of marriages rests in the court of common pleas. South Carolina Code Ann. § 20-1-510 (1976) provides: "The court of common pleas shall have the authority to hear and determine any issue affecting the validity of a contract of marriage." Also, S.C. Code Ann. § 20-1-520 (1976) provides that "[w]hen the validity of a marriage shall be denied or doubted by either of the parties, the other may institute a suit for affirming the marriage and, upon due proof of the validity thereof, it shall be conclusive upon all persons concerned."

Therefore, when one person claims to have a statutory marriage and the alleged spouse denies the existence of a statutory marriage, the court of common pleas is the proper forum for resolving the dispute. This would include claims of marriages created in South Carolina, other states, and foreign countries. Fortunately, such disputes are rare.

The legislature clarified the concurrent jurisdiction of the probate court to determine the validity of common law marriages in June, 2005. South Carolina Code Ann. § 20-7-420 was amended. Subsections (A)(5) & (A)(7) are now "reserved" and, as recodified in 2009, Section 63-3-530(B) provides for "concurrent jurisdiction with the probate court" as follows:

Notwithstanding another provision of law, the family court and the probate court have concurrent jurisdiction to hear and determine matters related to paternity, [common law] marriage, and interpretation of marital agreements; except that the concurrent jurisdiction of the probate court extends only to matters dealing with the estate, trust, and guardianship and conservatorship actions before the probate court.

South Carolina Code Ann. § 62-1-302 relating to the jurisdiction of the probate court was amended by adding the following language:

(c) The probate court has jurisdiction to hear and determine issues related to paternity, [common law] marriage, and interpretation of marital agreements in connection with estate, trust, guardianship, and conservatorship actions pending before it, concurrent with that of the family court, pursuant to Section 63-3-530.

The Supreme Court applied these revised statutes in Thomas v. McGriff, 368 S.C. 485, 629 S.E.2d 359 (2006). Thomas filed an action in the family court seeking a declaration that he was the common law spouse of a deceased woman. The family court dismissed the action for lack of subject matter jurisdiction, ruling that the case belonged in the probate court. The Supreme Court reversed, holding that, although it would have been more judicially economical for Thomas to claim heirship in the probate court and allow the probate court to resolve the common law marriage issue, nothing prohibited him from first bringing the action in the family court. This was so even though he might subsequently use the result of the action to claim an interest in the deceased woman's estate in probate court.

C. Venue

It is not altogether clear what the proper venue is for actions to establish the validity of marriages. Unlike divorce and separate support and maintenance actions, there is no specific venue statute for actions to establish the validity of marriages. Therefore, venue is determined by reference to the general statutes governing civil actions. These are found at S.C. Code Ann. §§ 15-7-10 et seq. (1976). Unfortunately, there have been no cases directly on point to provide guidance.

The proper location appears to be the county in which the defendant resides at the time of the commencement of the action. S.C. Code Ann. § 15-7-30 (1976). This result may cause some inequity. In a particular case, the best place to bring the case might be where the marriage allegedly occurred, where the parties allegedly resided as husband or wife, or where the alleged breach of the marital contract occurred. Any of these locations may, in fact, be preferable to the defendant's present home due to the location of witnesses or property involved in the dispute. Perhaps the legislature will modify S.C. Code Ann. § 20-3-60 (Supp.) in the future to include all marital litigation.

Choosing an improper venue to initiate litigation is not necessarily detrimental to the merits of the plaintiff's case. If the venue is wrong, the proper remedy is to transfer the case, not to dismiss it. SCRCP Rule 82(b). See also Rule 12(b)(3), SCRCP.

D. Statutory Law Marriages

1. License Requirements

It is "unlawful for any person to contract matrimony within this State without first procuring a license. . . ." S.C. Code Ann. § 20-1-210 (1976). However, although this language would seem to eliminate common law marriages, South Carolina continues to recognize them (there is a discussion of common law marriages later in this chapter). Also, even marriages that are contracted with invalid licenses or without a license are valid. See S.C. Code Ann. § 20-1-360 (1976); Johnson v. Johnson, 235 S.C. 542, 112 S.E.2d 647 (1960).

The probate judge or clerk of court with whom a marriage application is filed shall issue a marriage license upon the filing of the application, the lapse of 24 hours, the payment of a fee, and the filing of a sworn statement that the parties are legally entitled to marry (along with their full names, ages and places of residence). S.C. Code Ann. § 20-1-230 (1976).

Licensing is supported by a number of public policies: vital statistics, health, and avoiding hasty marriages. The licensing statutes also help in determining those persons who are not qualified to marry because of age or because of prior marriages. In some states these statutes also serve as public health measures, but South Carolina is one of few states that do not require a physical examination or blood test. 1952-53 S.C. Att'y Gen. Ann. Rep. 153.

a. Waiting Period

South Carolina requires a 24-hour waiting period between the application for a license and its issuance. S.C. Code Ann. § 20-1-220 (1976).

b. Nonresidents

Those persons who marry within the jurisdiction of South Carolina must meet the requirements of South Carolina law with respect to marriage irrespective of their status as citizens or aliens and, likewise, irrespective of the person who performs the ceremony. The laws of the country of the celebrants' domicile do not apply if the marriage takes place within the borders of this state. 1950-51 S.C. Att'y Gen. Ann. Rep. 210. Generally, the law of the place of celebration governs the formalities of marriage and determines its validity, and the marriage will generally be recognized in other states unless that would contradict strong public policy. Zwerling v. Zwerling, 270 S.C. 685, 686, 244 S.E.2d 311, 312 (1978) (citing 52 Am. Jur. 2d Marriage §§ 80, 82 (1970)).

c. Who May Perform a Marriage Ceremony

Ministers of the Gospel, Jewish rabbis, officers authorized to administer oaths in this state (including notaries public), and the chief or spiritual leader of a Native American Indian entity recognized by the South Carolina Commission for Minority Affairs pursuant to Section 1-31-40 are authorized to administer a marriage ceremony. S.C. Code Ann. § 20-1-20 (Supp.).

2. Consummation by Cohabitation Required

A marriage contract in South Carolina is not final until it has been consummated by cohabitation, which is considered to be evidence of the mutual consent required to create any valid contract. If the parties have not cohabited, the lack of consent of either party will be inferred, and the marriage is voidable pursuant to S.C. Code Ann. § 20-1-530 (1976) which states:

If any such contract has not been consummated by the cohabitation of the parties thereto the court may declare such contract void for want of consent of either party of the contracting parties or for any other cause going to show that, at the time the supposed contract was made, it was not a contract.

Cohabitation is a prerequisite for establishing a valid common law marriage; thus, lack of cohabitation will invalidate a common law marriage irrespective of this statute.

There remains some uncertainty about the meaning of "cohabitation" in South Carolina, with the particular question being whether or not any sexual activity is required...