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South Carolina has done away with common law marriage.
In Stone v. Thompson, decided July 24, 2019, the SC Supreme Court abolished common law marriage. Their ruling is prospective and not retroactive, meaning that anyone who entered a common law marriage before July 24, 2019, is still married, although the Court also changed the rules including the standard of proof for demonstrating a common law marriage.
What does this mean for divorce cases in SC? What are the new rules laid out for common law marriages entered before July 24, 2019?
If you are considering separation from a live-in partner and you believe you are in a common law marriage, call the Myrtle Beach divorce attorneys at Axelrod and Associates now to find out what your rights are and how this decision may affect your case.
As of July 24, 2019, you cannot enter a common law marriage in the state of South Carolina:
Our review in this case has prompted us to take stock of common-law marriage as a whole in South Carolina. We have concluded the institution’s foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted. Accordingly, we believe the time has come to join the overwhelming national trend and abolish it.
Why did SC abolish common law marriage, and what does it mean for people who may have entered common marriages already?
Common law marriage was adopted from the English common law by many states after the Revolution. It made sense because it was often difficult to find a local official who could conduct a marriage ceremony.
It also was an attempt to limit legitimize “subversive” relationships where couples were living in sin, and it was an attempt to ensure that the common law husband continued to support his former wife after a breakup:
England recognized such unions during colonization, and as a result, common-law marriage migrated to the New World. Bowman, supra, at 719. Some states proceeded to adopt the doctrine, while others did not. Id. at 719-22. A primary reason for those that did was logistical-frontier America was sparsely populated and difficult to travel, making access to officials or ministers impractical for many. Id. at 722-24. States also sought to legitimize “subversive” relationships and the children thereof, as well as to direct women to the family for financial support instead of the public fisc. Hedgecock, supra, at 560; see also Ariela R. Dubler, Wifely Behavior: A Legal History of Acting Married, 100 COLUM. L. REV. 957, 968- 69 (2000).
The primary basis for common law marriage was morality – we couldn’t have all these immoral couples living in sin, raising illegitimate bastards:
“The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy.”
So, why did SC abolish common law marriage?
The Court is clear that they are abolishing common law marriage because we no longer live in a paternal society like the frontier societies of the early Republic – society just doesn’t care anymore if you are married or if your child is a bastard:
The paternalistic motivations underlying common-law marriage no longer outweigh the offenses to public policy the doctrine engenders. By and large, society no longer conditions acceptance upon marital status or legitimacy of children.
The Court quoted and adopted similar reasoning given by the Pennsylvania courts when they abolished common law marriage:
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.
Times have changed, and the law must change with the times…
Furthermore, the Court pointed out that determining whether a couple intended to enter a common law marriage is difficult – requiring a marriage certificate as evidence of marriage simplifies divorce proceedings.
Abolishing common law marriage in SC creates more predictability, which is a good thing in the family court. Common law marriage had reduced marriage to “a guessing game with significant ramifications for the individuals involved, as well as any third party dealing with them.”
Most states have already abolished common law marriage – fewer than ten states still recognize common law marriages.
Wait a minute, doesn’t the legislature pass laws and abolish laws?
Not necessarily. “Common law” means that the law is not written down in a statute passed by the legislature. It is a rule that has been established by the courts, passed down and modified over the years through decisions by appellate courts.
The Court cannot just abolish a law that was passed by the legislature, although they can find that a statute is unconstitutional and unenforceable. But, when the courts have established a common law rule, the courts can also do away with it.
SC abolishes common law marriage, but only for people who would have entered into a common law marriage after July 24, 2019, the date the opinion was published:
…from this date forward-that is, purely prospectively-parties may no longer enter into a valid marriage in South Carolina without a license.
It is not retroactive, which would have undone any common law marriage that was entered before July 24, 2019.
Because common law marriages entered into before July 24 are still considered valid, there may be divorce cases filed to dissolve common law marriages for decades to come. Any person who entered a common law marriage before July 24 is still married under SC law, and, if they choose to seek a divorce at any time in the future, the courts must still apply the old common law marriage rule.
The Court did announce new evidentiary rules for common law marriages, however. Courts will still consider the same factors to determine whether a common law marriage exists, but there will no longer be a presumption of marriage because a couple lives together.
The Court also changed the standard of proof – the person attempting to establish that a common law marriage exists must prove by clear and convincing evidence that there was mutual assent to be married:
…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.
Clear and convincing evidence requires more proof than a “preponderance of the evidence” (more likely than not or 50%), and it requires less proof than “beyond any reasonable doubt” (the standard in criminal cases).
In summary: if you entered a common law marriage before July 24, 2019, you can still seek a divorce although it will now be more difficult to prove the existence of the marriage. If you want to get married after July 24, 2019, however, you must get a marriage license.
If you are considering separation or divorce, and you believe you can establish a common law marriage that was entered into before July 24, 2019, call your SC family court attorney at Axelrod and Associates now at 843-916-9300 or fill out our contact form to set up a consultation.
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