Whether common-law marriage is recognized in South Carolina depends on your timing. In the July 24, 2019 opinion of Stone v. Thompson, the South Carolina Supreme Court abolished common law marriage, but did so only prospectively. Therefore, no individual is permitted to enter into a common-law marriage in South Carolina after the date of the opinion – July 24, 2019.
Abolishing Common-Law Marriage In South Carolina
The South Carolina Supreme Court looked at the modern trend of sister states in repudiating the doctrine of common law marriage, noting that few than ten jurisdictions currently recognize common-law marriage.
In 2003, the Pennsylvania Commonwealth Court set forth a thorough explanation for its conclusion that common-law marriage should no longer be recognized in PNC Bank Corp. v. W.C.A.B. (Stamos), 831 A.2d 1269 (Pa. Commw. Ct. 2003).3 Notably, the court determined:
The circumstances creating a need for the doctrine are not present in today’s society. A woman without dependent children is no longer thought to pose a danger of burdening the state with her support and maintenance simply because she is single, and the right of a single parent to obtain child support is no longer dependent upon his or her marital status. Similarly, the marital status of parents no longer determines the inheritance rights of their children. Access to both civil and religious authorities for a ceremonial marriage is readily available in even the most rural areas of the Commonwealth. The cost is minimal, and the process simple and relatively expedient.
Noting that the common law changes when necessary to serve the needs of the people, the South Carolina Supreme Court recognized that “the paternalistic motivations underlying common-law marriage no longer outweigh the offenses to public policy the doctrine engenders.” Interestingly, the South Carolina Supreme Court noted that the South Carolina legislature has attempted eight times since 1998 to abolish common law marriage. The Court stated:
Critically, non-marital cohabitation is exceedingly common and continues to increase among Americans of all age groups.4 The right to marry is a fundamental constitutional right, Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015), which leads us to believe the right to remain unmarried is equally weighty, particularly when combined with our admonitions that a person cannot enter into such a union accidentally or unwittingly, Callen v. Callen, 365 S.C. 618, 626, 620 S.E.2d 59, 63 (2005). Further, we must agree with the many observers who have noted that common-law marriage requirements are a mystery to most.5 The present case is again illustrative. None of the multiple witnesses who were asked understood what was required to constitute a common-law marriage, despite the fact that, as mentioned, several were involved in lengthy cohabitating relationships themselves. Moreover, two of such partners testified in complete opposition to one another, with one reporting they were common-law married, and the other stating emphatically they were not. This further persuades us to reject a mechanism which imposes marital bonds upon an ever-growing number of people who do not even understand its triggers. Our public policy is to promote predictable, just outcomes for all parties involved in these disputes, as well as to emphasize the sanctity of marital union. We can discern no more efficacious way to fulfill these interests than to require those who wish to be married in our State to comply with our statutory requirements. Our quest to see inside the minds of litigants asserting different motivations and levels of knowledge at varying times must yield to the most reliable measurement of marital intent: a valid marriage certificate.
Prospective Application Of Common-Law Marriage Abolishment
The South Carolina Supreme Court determined that the non-recognition of common-law marriage would not apply retroactively, seeing no benefit to undoing numerous marriages which were formerly considered valid. Therefore, no individual is permitted to enter into a common-law marriage in South Carolina after the date of the opinion – July 24, 2019.
The Test For Determining the Existence Of a Common-Law Marriage
The South Carolina Supreme Court also determined it was necessary to update the standards the courts are to apply in future common-law marriage litigation, stating:
A common-law marriage is formed when the parties contract to be married, either expressly or impliedly by circumstance. Callen, 365 S.C. at 624, 620 S.E.2d at 62. The key element in discerning whether parties are common-law married is mutual assent: each party must intend to be married to the other and understand the other’s intent. Id. Some factors to which courts have looked to discern the parties’ intent include tax returns, documents filed under penalty of perjury, introductions in public, contracts, and checking accounts.
[W]e hold the “clear and convincing evidence” standard utilized in probate matters should also apply to living litigants. This is an intermediate standard—more than a preponderance, but less than beyond a reasonable doubt—and requires a party to show a degree of proof sufficient to produce a firm belief in the allegations sought to be established. In re Estate of Duffy, 392 S.C. 41, 46, 707 S.E.2d 447, 450 (Ct. App. 2011).
Finally, to the extent necessary, we clarify a section of this Court’s opinion in Callen. 365 S.C. at 626, 620 S.E.2d at 63. A party is not required to show his opponent had legal knowledge of common-law marriage; ignorance of the law remains no excuse. He must demonstrate that both he and his partner mutually intended to be married to one another, regardless of whether they knew their resident state recognized common-law marriage or what was required to constitute one.
In conclusion, the South Carolina Supreme Court stated:
To sum up, in the cases litigated hereafter, a party asserting a common-law marriage is required to demonstrate mutual assent to be married by clear and convincing evidence. Courts may continue to weigh the same circumstantial factors traditionally considered, but they may not indulge in presumptions based on cohabitation, no matter how apparently matrimonial. While we have set forth the law to be applied in future litigation, we apply the principles in effect at the time this action was filed to the case at hand.
