Practice Alert

The Abolishment of Common-Law Marriage in South Carolina

The South Carolina Supreme Court prospectively abolished common-law marriage by order dated July 26, 2019.

Melody Breeden and Anne Kelley Russell

Case Summary:  Stone v. Thompson, No. 27908, 2019 S.C. LEXIS 72 (S.C. Jul. 24, 2019)

In a recent opinion of Justice Kaye G. Hearn, the Supreme Court of South Carolina has abolished common law marriage.  The court in Stone v. Thompson, No. 27908, 2019 S.C. LEXIS 72 (S.C. July 24, 2019) declared that “from this date forward—that is, purely prospectively—parties may no longer enter into a valid marriage in South Carolina without a license.” Id. at *2.  The court proceeded to refine the test courts are to employ for common law marriages entered into prior to July 26, 2019. 

Notably, the court reached its conclusion by citing our society’s shift away from accepting someone based on marital status or legitimacy of children and the courts’ frequent struggles to determine if and when parties expressed the requisite intent to be married.  Id. at *6.  The court further observed that “non-marital cohabitation is exceedingly common and continues to increase among Americans of all age groups.”  Id.  

The court declined to exercise its prerogative to apply its ruling retroactively, which would have in turn undone numerous marriages which are otherwise considered valid in South Carolina.  Instead, it chose to apply its ruling prospectively, following other states, particularly the Pennsylvania Commonwealth Court in PNC Bank Corp. v. W.C.A.B. (Stamos), 831 A.2d 1269 (Pa. Commw. Ct. 2003).  Id. at *8-9.

The court took the opportunity to heighten the standards that South Carolina courts are to apply in future common-law marriage litigation.  Prior to the order, South Carolina courts recognized and applied the “rebuttable presumption” to living litigants (i.e., those finding themselves in family court typically regarding the dissolution of said marriage), whereby there was presumed to be a marriage by cohabitation, coupled with social acceptance over a long period of time, which could only be overcome by strong, cogent, satisfactory or conclusive evidence.  Id. at *10.    As of July 26, 2019, future litigants, whether deceased or living, are to utilize the “clear and convincing evidence” where a party asserting a common-law marriage is required to demonstrate mutual assent to be married by clear and convincing evidence, and may use circumstantial factors traditionally considered. Id. at *11-12.

The most significant factual and procedural background of Stone is that the trial to determine if the parties had a common law marriage involved testimony from over 40 witnesses, nearly 200 exhibits, and lasted more than a week.  Id. at *13.

As of the date of the order, the following jurisdictions continue to recognize the institution of common law marriage:  Colorado, Kansas, Rhode Island, Iowa, Montana, Oklahoma, Texas, Utah, Washington, D.C., and New Hampshire.