Why won’t South Carolina end common-law marriage?

On July 24, 2019, the South Carolina Supreme Court finally (and only prospectively) abolished common-law marriage in South Carolina.  See South Carolina Supreme Court finally (and only prospectively) abolishes common-law marriage–and makes it harder to establish retroactive common-law marriages

Yesterday I litigated the issue of common law marriage–in a municipal court eviction proceeding no less. It’s a task I consider most unpleasant and that hearing did nothing to change my opinion.  My client had tried to evict his ex-girlfriend/baby mama (the baby’s now 20 years old) and–she claimed–common-law wife from a house he owned.  The judge decided that, because the parties had lived together for fifteen years and had a child together, they were common-law married, and thus the residence was marital property.  Accordingly she would not evict the woman.  He hired me and I asked the judge to reconsider.  After I showed that when this woman claimed the common-law marriage began my client was still married to another woman the judge reversed her decision and ordered ex-girlfriend/baby mama to vacate the premises, at which point she (the other woman, not the judge) engaged in histrionics worthy of the Jerry Springer show.  Entertaining but hardly dignified–and I like my courtroom time to be dignified.

A quick google search of “how many states still allow common law marriage” yields answers of seven, nine, fifteen (all also listing the District of Columbia).   South Carolina is on all three lists, allowing common-law marriage by statute: S.C. Code § 20-1-360: “Nothing contained in this article shall render illegal any marriage contracted without the issuance of a license.”  This leads me to question: why won’t South Carolina abolish common-law marriage, especially when the majority of states do without it?

In law school I was taught that the rationale for common-law marriage is that there was a time when the law (i.e., government bureaucracy) did not extend everywhere, so there needed to be a method for folks to get married when they could not get to a government office to obtain a license.  This was especially true when the young lady was “in the family way”–a circumstance that, contrary to conservative opinion, our modern era did not devise, though we may be the first era to have unmarried folks living and bearing children together without being shamed out of the community.

However, if common-law marriage was justified in a frontier age, South Carolina’s frontier was settled two centuries ago.  Myriad United States have turned from wilderness to settled during this period and have seen fit to abolish common-law marriage but not South Carolina, which remains, along with Rhode Island, the only original colonies to still allow common-law marriage (Georgia allows it if contracted before January 1, 1997 and New Hampshire allows it for inheritance purposes only).

If common-law marriage was merely archaic, it would be tolerable.  However, even when a couple agrees they are common-law married it causes future problems when they attempt a common-law divorce (i.e., separate without getting divorced) and then enter into subsequent ceremonial marriages that end up being voidable as bigamous.  It’s a greater problem when the parties cannot agree if they are common-law married, engendering more perjury than any other area of family law practice: the “we’re common-law married” wife who filed separate tax returns for the past ten years; the “we just live together” boyfriend/baby daddy who listed girlfriend/baby mama as “wife” on his employer provided health insurance (in sixteen years doing family law I have yet to see or hear of a man being the one claiming common-law marriage).  While it might theoretically be possible to be common-law married without committing perjury on some government or employment form, in practice I have yet to see a disputed case of common-law marriage in which the party claiming common-law marriage has not falsely sworn being single on at least one occasion.  As a result court cases resolving the issue of whether a couple was married at common-law do not become a “quest for the truth” but instead devolve into determining who is the less convincing liar.  Hardly dignifying, and explaining my distaste for such cases.

Allowing common-law marriage merely encourages men to be cads and women to be naive.  Men who want to keep their girlfriends happy can tell them that “we don’t need a piece of paper” and lead their girlfriends to believe they are married at common-law, only to change their position when they break up and the girlfriend/wife wants property division and alimony.  The law supports these naive women when they end up so-duped if the court believes their claims of common-law marriages and throws them to the mercies when the court doesn’t.  This creates all kinds of injustice.

It’s not as though the process of ceremonial marriage is that difficult.  When I wanted to marry my then-girlfriend in 1989, it took a trip to city hall (in South Carolina it would take a trip to the county Probate Court), a blood test (for syphilis, not for AIDS–how odd) and a Rabbi.  As my young daughter would say, “easy, peasy lemon squeezy.”  The nice thing about such formality is that there are no surprises years down the road, with one of us thinking we are married and the other thinking we are merely living together.  Given that marriage is one of the most significant and solemn things most of us will contract in our life, shouldn’t the law require that we not enter this contract inadvertently or accidently?

Common-law marriage was made for hillbillies, and the folks who claim to contract it in the twenty-first century tend to live the chaotic lives of hillbillies, even if they live in suburban homes and have decent incomes (I am sure there is a advocacy group somewhere that’s going to be peeved at my insulting hillbillies).  We shouldn’t encourage such chaos or allow so much perjury to be suborned.  When Joni Mitchell sang “We don’t need no piece of paper from the City Hall keepin’ us tied and true” she was praising shaking-up, not encouraging common-law marriage. If people want to be married, they should get that damn piece of paper: South Carolina needs to abolish the archaic practice of common-law marriage.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman

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