My first common-law marriage

Yesterday, for the first time in my 17+ years of practicing family law, I  helped validate a common-law marriage.  Unlike the typical common-law marriage litigated in family court, in which one “spouse” claims marriage and the other “spouse” disclaims marriage, this was a common-law marriage by consent.

This couple came to me with factual circumstances that appeared to exist in myriad sitcoms and rom coms but not real life: they’d obtained a marriage license and undergone a ceremonial marriage in 1986 but the husband hadn’t yet completed his divorce from his previous wife.  Recently, looking through boxes of old paperwork, he’d realized this marriage took place months before his previous divorce and thus was a void, bigamous, marriage.  He and his wife wanted to validate the marriage they thought they’d had for the past 25 years.

S.C. Code § 63-3-530(B) gives the family court “concurrent jurisdiction to hear and determine matters relating to … common-law marriage…”  This couple could have gotten a new license and undergone another marriage ceremony but this would make them newlyweds.  They wanted to be “old” marrieds.  So, utilizing § 63-3-530(B), we filed a petition to validate their common-law marriage.  We offered the judge two alternative marriage dates: one from 1987, when the husband’s previous marriage ended in divorce and one from 2006 when they’d moved to South Carolina (previously they had only lived in states that did not recognize common-law marriage).

The family court judge–one with over a dozen years experience on the bench–had never presided over a case establishing a common-law marriage by consent.  In fact, she noted, this was only the second common-law marriage case she had presided over.  It was also my first common-law marriage trial.  Despite my acknowledging that the parties had not resided in a common-law marriage state until 2006, she granted them a marriage date of 1987.  Rather than being married twenty-five years (the date of their initial ceremonial marriage), or newlyweds (had they simply undergone the procedure again), or five years (had the family court validated their marriage from the date they moved to South Carolina), they are now married for twenty-four years.  They are old marrieds.

Folks who have never married or not been married for long might not understand why it was important to this couple that their marriage be validated as an old marriage.  As someone who’s been married twenty-one years I understand completely, as did my wife when I described this case to her.  There’s pride in sustaining a marriage for a generation or more.  In a sense the marriage itself has independent significance: a symbol of a life well-lived or a commitment well-honored.  I’ve never understood folks who consider living together “in love” as being the equivalent of marriage; the mere act of entering a legally binding commitment–one that only death or the court can dissolve–is meaningful and romantic.  I was glad to help this couple obtain the legal acknowledgment of their long-term commitment.  And, as someone who’s been critical of common-law marriage in the past, I have come to see that the doctrine of common-law marriage may have some use when both parties consent to that marriage.

Because we have to notarize so many affidavits and financial declarations, most South Carolina attorneys who practice family law also become notary publics.  S.C. Code § 20-1-20 authorizes notary publics to marry people.  I hope to officiate at a wedding at some point in my life; so far no one has asked.  I’m a bit jealous of a family law colleague of mine, Dana Rachel Wine, who has developed a sideline officiating at weddings.  Spending so much effort tearing marriages apart, I would love, just once, to bind a couple together.  Perhaps creating this common-law marriage is the closest I will ever get to achieving that goal.


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