An end to common law marriage in South Carolina

By Lynelle D. Morgan
Attorney at Law

ROCK HILL, S.C. – Going forward, South Carolina couples who want to enter into a valid marriage in South Carolina must have a license. There will be no new common-law marriages in South Carolina, the state Supreme Court has ruled.

The Supreme Court’s July 24, 2019, decision officially ends South Carolina’s status as one of only about 10 states in the nation that allowed couples to marry without a license if they meet the state’s requirements for common-law marriage.

The ruling doesn’t affect existing common-law marriages – they are grandfathered in. But no such unions can be formed after the date of the Supreme Court opinion.

For two decades in the South Carolina General Assembly, lawmakers have tried and failed to abolish common-law marriage, a legal concept that dates back centuries but has been falling out of favor in recent years.

The court got the job done with a unanimous ruling in a case arising out of Charleston County. The couple in that case began living together in 1989. After they separated the man sought a divorce, including an equal split of their assets.

The man claimed in Family Court that the couple was common-law married. The woman testified that she never intended to marry the man, and that she went to great lengths to preserve her unmarried status.

Their friends weren’t much help in clarifying matters – some testified that the couple represented themselves as husband and wife, while others said they did not, demonstrating that common-law marriage requirements are a mystery to most. By and large, their acquaintances seemed “wholly unconcerned with their marital status,” as Supreme Court Justice Kaye Hearn wrote in the court’s opinion.

Two people cohabiting without benefit of clergy or marriage license is no longer unusual. This cultural shift is a key reason the concept of common-law marriage is passing from the modern body of law. Many couples live together and even raise families with no intent to marry. The court recognized the importance of honoring such decisions, affirming that the right to remain unmarried is as fundamental as the right to marry.

In the Charleston case, the lower court ruled in the man’s favor, but the Supreme Court unanimously overturned that decision – abolishing the institution of common-law marriage prospectively.

“We have concluded the institution’s foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted,” Justice Hearn wrote.

“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,” she wrote. “Accordingly, we believe the time has come to join the overwhelming national trend and abolish it.”

What should couples wishing to enjoy the legal status of matrimony do now? The justice offered some old-fashioned advice: “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.”

If you have questions about your own marital status under South Carolina law, contact one of the experienced professionals on the Morton & Gettys Family Law team. We’ll be glad to help you.

Lynelle Morgan is a family law attorney with Morton & Gettys Law Firm in Rock Hill, SC. She can be reached at (803) 366-3426 or lynelle.morgan@mortongettys.com.

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Lynelle D. Morgan

Associate

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