From This Day Forward The Abolishment of Common-Law Marriage in South Carolina, 0320 COBJ, SC Lawyer, March 2020, #52

AuthorBy Melody Breeden and Anne Kelley Russell
PositionVol. 31 Issue 5 Pg. 52

From This Day Forward The Abolishment of Common-Law Marriage in South Carolina

Vol. 31 Issue 5 Pg. 52

South Carolina BAR Journal

March, 2020

By Melody Breeden and Anne Kelley Russell.

The process to obtain a marriage license in South Carolina is fairly simple. First, a couple must appear together at the local probate court and file a written application.1 There is a 24-hour waiting period after the application is fled before the license can be picked up. After that, the parties can be married. A South Carolina marriage license is valid only for marriages performed in South Carolina by a minister of the Gospel, accepted Jewish rabbi, or an officer authorized to administer oaths in this state, such as a notary public. Currently, the license fee is $70. Marriages conducted with a license are thereafter recorded in public record and are considered valid.2

In comparison, two elements must be proven to create a common-law marriage – that the parties had (i) the capacity to marry and (ii) the intention to enter into a marriage contract.3 Many people mistakenly believe there is a seven year period of cohabitation that creates a common-law marriage. Some couples tell their children and grandchildren they are married, but insist to others that they are not really married. Proving the existence of a common-law marriage is a cumbersome, time-consuming, fact-intensive, and expensive process. The fling fee alone to bring an action in family court or probate court is $150. Therefore, when the South Carolina Supreme Court issued its opinion in Stone v. Thompson prospectively abolishing common-law marriage, it was no surprise that the underlying trial to determine if the parties had a common-law marriage was a cumbersome, time consuming, fact-intensive, and expensive process involving testimony from over 40 witnesses, nearly 200 exhibits, and lasted more than a week.4

The history of common-law marriage in South Carolina dates back to Europe, prior to the Reformation when marriage was “treated as a private matter between families; it was not a matter for state involvement.”[5] Early American colonists brought the English common law to the colonies, where the doctrine of common-law marriage spread due to the difficulty of accessing officers or ministers to conduct the marriage, whether due to the long distances of travel, bad roads, rough frontier, or other hardships. Common-law marriage more easily allowed financially dependent women to receive monetary support from her family, rather than the state, and legitimized children of such marriages.6 The contractual right of marriage was originally codified in 1911 at what is now SC Code Ann. Sections 20-1-210 and 20-1-360, which today provides that while “[i]t shall be unlawful for any persons to contract matrimony within this State without first procuring a license . . . “, “[n]othing contained in this article shall render illegal any marriage contracted without the issuance of a license.” Through the years, the South Carolina General Assembly has had many opportunities to abolish common-law marriage but has failed to do so.

Justice Kaye G. Hearn’s opinion in Stone dated July 24, 2019 finally brought certainty to the state of marriage in South Carolina. The Court declared that “from this date forward—that is, purely prospectively—parties may no longer enter into a valid marriage in South Carolina without a license.”7 The court proceeded to refine the test courts are to employ for common-law marriages entered into prior to July 24, 2019.

Notably, the court reached its conclusion by citing our society’s shift away from accepting someone based on marital status or legitimacy of children and the courts’ frequent struggles to determine if and when parties expressed the requisite intent to be married.8 The court further observed that “non-marital cohabitation is exceedingly common and continues to increase among Americans of all age groups.”9

The court declined to exercise its prerogative to apply its ruling retroactively, which would have in turn undone numerous marriages which are otherwise considered valid in South Carolina. Instead, it chose to apply its ruling pro-spectively, 10 following other states, particularly the Pennsylvania Commonwealth Court in PNC Bank Corp. v. W.C.A.B. (Stamos).11

The court took the opportunity to heighten the standards that South Carolina courts are to apply in future common-law marriage litigation. Prior to the order, South Carolina courts recognized and applied a “rebuttable presumption” standard for living litigants, where there was presumed to be a marriage by cohabitation, coupled with social acceptance over a long period of time, which could only be overcome by strong, cogent, satisfactory or conclusive evidence.12 As of July 24, 2019, future litigants, whether deceased or living, are to utilize “clear and convincing evidence” standard, where a party asserting a common-law marriage is required to demonstrate mutual assent to be married by clear and c 1onvincing evidence, and may use circumstantial factors traditionally considered in establishing a common-law marriage prior to Stone.13 Today, courts look at numerous factors in determining whether or not a couple has entered into a common-law marriage, such as how tax returns are fled, how the couple has held themselves out in the community, how Christmas or other cards are addressed or signed, and how the couple...

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