South Carolina Supreme Court finally (and only prospectively) abolishes common-law marriage–and makes it harder to establish retroactive common-law marriages

A decade ago, in a blog titled, “Why won’t South Carolina end common-law marriage?,” I expressed my strong dislike of the doctrine by noting, “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,” before concluding:

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… We shouldn’t encourage such chaos or allow so much perjury to be suborned. … 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.

Evidently, the members of the South Carolina Supreme Court share my distaste of common-law marriage. From watching the oral argument in Stone v. Thompson, it was clear that the Supreme Court would create standards that would engender greater uniformity in establishing a common-law marriage. It was less clear whether the Supreme Court would abolish it outright. The July 24, 2019 opinion in Stone v. Thompson, 833 S.E.2d 266 (S.C. 2019), does both: holding that “no individual may enter into a common-law marriage in South Carolina after the date of this opinion,” while holding that to judicially establish common-law marriages contracted prior to July 25, 2019, the party seeking to establish such a marriage will need to do so by clear and convincing evidence.

In abolishing common-law marriages prospectively, the Supreme Court looked to the reasoning of a Pennsylvania case, PNC Bank Corp. v. W.C.A.B. (Stamos), 831 A.2d 1269 (Pa. Commw. Ct. 2003):

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.

Expanding on that reasoning, the Supreme Court noted:

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 current case is emblematic of this shift, as the parties’ community of friends was wholly unconcerned with their marital status, and indeed several of their witnesses were in similar relationships. Meanwhile, courts struggle mightily to determine if and when parties expressed the requisite intent to be married, which is entirely understandable given its subjective and circumstantial nature. The solemn institution of marriage is thereby reduced to a guessing game with significant ramifications for the individuals involved, as well as any third party dealing with them.

Critically, non-marital cohabitation is exceedingly common and continues to increase among Americans of all age groups. The right to marry is a fundamental constitutional right, 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. Further, we must agree with the many observers who have noted that common-law marriage requirements are a mystery to most. 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.

Citations omitted.

Having abolished common-law marriage, prospectively, the Supreme Court next addressed what to do with folks who already believed they were married at common-law. The court “decline[d] to exercise our prerogative to apply our ruling today retroactively. We see no benefit to undoing numerous marriages which heretofore were considered valid in our State, and we will not foreclose relief to individuals who relied on the doctrine.”

However, the Supreme Court imposed a higher burden of proof for those wishing to establish common-law marriage:

Consistent with our observations regarding the institution’s validity in modern times, we believe we must update the standards courts are to apply in future common-law marriage litigation. A common-law marriage is formed when the parties contract to be married, either expressly or impliedly by circumstance. 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. 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.

Appellate courts have previously recognized two lines of cases regarding common-law marriage. The first holds that a party proves a common-law marriage by a preponderance of the evidence. The second relies on a strong presumption in favor of marriage by cohabitation, apparently matrimonial, coupled with social acceptance over a long period of time. This presumption—like common-law marriage itself—is based on a conception of morality and favors marriage over concubinage and legitimacy over bastardy. It can only be overcome by strong, cogent, satisfactory or conclusive evidence showing the parties are not married. This Court has held that once a common-law marriage becomes complete, no act or disavowal can invalidate it.

Thompson argues the rebuttable presumption of common-law marriage is based on outdated assumptions about cohabitation. Given our foregoing assessment of common-law marriage, it will come as no surprise that we agree. The concerns regarding immorality, illegitimacy, and bastardy are no longer stigmatized by society, and as a result, they can no longer serve as the basis for assuming individuals are married.

Additionally, consistent with our preceding discussion regarding the sanctity of a marital relationship and our reticence to impose one on those who did not fully intend it, we believe a heightened burden of proof is warranted. Therefore, we 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.

Citations omitted.

Given some folks’ reliance on the common-law marriage doctrine, it makes sense for the ban on recognizing common-law marriage to only apply prospectively. However, given the inconsistencies of evidence in practically every contested common-law marriage case, and given a strong public policy that folks should understand their own marriage status, this increased burden of proof was long overdue.

Finally, Stone reversed the family court and found no common-law marriage between these particular litigants. The evidence reflected that the parties began dating in the early 1980’s, had their first child together in 1987, and began cohabiting in 1989. Between 1989 and 2004 there was no evidence of Thompson holding herself out as married. In the 2005-08 time period, Thompson was inconsistent on her marital status. Thompson blithely noted that she sometimes held herself out as married during this time period “because banks were more closely scrutinizing mortgage loans.” This led the Supreme Court to cite in a footnote language from the Pennsylvania PNC Bank case:

[C]ouples may swear in applying for benefits that they are man and wife, but file tax returns averring under penalty of perjury that they are single. One attorney in oral argument, when asked how he could explain affidavits to the IRS inconsistent with the testimony of his client in the litigation then before the court, replied matter-of-factly that he assumed it lowered their tax liability. What is truly astonishing is not that parties take inconsistent positions to gain advantage, but that they seem to see nothing particularly inappropriate in their chameleon-like behavior. We must conclude that this court can no longer place its imprimatur on a rule which seems to be a breeding ground for such conduct and its attendant disrespect for the law itself.

In finding the parties were not married, the Supreme Court concluded, “While we in no way condone false statements in pursuit of a financial benefit, we do not believe these documents evidence the necessary intent to prove the parties were common-law married.”

Common-law marriage was clearly a doctrine that has outlived its usefulness. While the courts viewed it as a different method of proving marriage, the culture considered it a different type of marriage–and this disconnect between law and culture was creating constant uncertainly and injustice. For family law attorneys who examined the practice of common-law marriage as part of litigation, it was obvious that common-law marriage was rarely an actual marriage as married folks actually understand it.

Consider your own marriage–if you are married. There are easily ten moments each day in which your marriage is publically noted. Every time you wear a wedding ring and every time you refer to your partner as your spouse, or your husband/wife, you are making a public record of your marriage. Imagine what would happen if 1% of the time you indicated you were not actually married: you didn’t wear a wedding ring out in public; you referred to or introduced your spouse as your friend/girlfriend/boyfriend to folks who know both of you; you filed tax returns as single or head of household and told your spouse to do likewise. Imagine your spouse’s reaction when he or she discovered you were doing this. Not pretty. That’s because you are married. Yet folks who were married at common-law did this routinely.

Given the rise of cohabitation in the past 50 years, this oscillation in public declaration of marital status was becoming routine–and causing grave injustice in the family court as folks couldn’t be certain of their own marital status. In Stone, even the couple’s own friends were unclear on their marital status. Often one half of a couple considered them married and the other half did not. Some of these couples even disagreed on their own marital status. This uncertainty was the problem common-law marriage was creating. I’m thrilled our Supreme Court finally abolished it.

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