Supreme Court reverses Court of Appeals determination that same-sex, common-law marriage could not exist prior to 2014

Posted Thursday, November 11th, 2021 by Gregory Forman
Filed under Divorce and Marriage, Of Interest to General Public, South Carolina Appellate Decisions, South Carolina Specific

The November 10, 2021, Supreme Court opinion in Swicegood v. Thompson, 435 S.C. 63, 865 S.E.2d 775 (2021), remedies the obvious error in the Court of Appeals decision in Swicegood v. Thompson, 431 S.C. 130, 847 S.E.2d 104 (Ct. App. 2020). It reversed that court’s and the family court’s finding that no same-sex, common-law marriage could be established in South Carolina prior to South Carolina authorizing same-sex marriage in Condon v. Haley, 21 F. Supp. 3d 572, 587 (D.S.C. 2014).

The Supreme Court based its reasoning on Obergefell v. Hodges, 576 U.S. 644, 675–76 (2015), which held that any state’s restriction on same-sex marriage was void ab initio. The lower courts’ errors were so obvious that the Supreme Court granted certiorari, dispensed with further briefing, and simply vacated that provision of the Court of Appeals’ opinion. The Supreme Court rarely does this in a published opinion; the error has to be glaring for it to do so. However, because Swicegood did not hold herself out as married during the times she lived with Thompson, the Supreme Court affirmed the finding that no common-law marriage existed.

I noted the Court of Appeals’ obvious error in my initial blog on the Court of Appeals’ opinion:

I don’t see how an unconstitutional impediment could be a legally valid impediment but agree that if the parties believed there was an impediment to their marrying, they could not be married at common-law.

It is important that the Supreme Court remedied this error. It is highly unlikely that many same-sex, common-law marriages were established prior to Condon. The Supreme Court abolished prospective common-law marriages in Stone v. Thompson, 428 S.C. 79, 833 S.E.2d 266 (2019). Thus, there are likely to be few same-sex, common-law marriages in South Carolina. However, this Supreme Court opinion means those marriages won’t be considered void due to an unconstitutional depravation of equal protection.

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