COLUMBIA, S.C. – South Carolina might have become the latest state to repudiate the doctrine of common-law marriage Wednesday.
The state’s Supreme Court, in an opinion issued Wednesday, joined the “overwhelming national trend” and attempted to abolish the doctrine of common-law marriage going forward.
A common-law marriage occurs when a couple begin living together, hold themselves out as a married couple and behave as a married couple would but do not formally go through the process of obtaining a marriage license.
The opinion was written by Justice Kaye Hearn. The state’s other Supreme Court justices — Chief Justice Donald Beatty, John Kittredge, John Few and George James — concurred with the opinion.
“Therefore, from this date forward — that is, purely prospectively — parties may no longer enter into a valid marriage in South Carolina without a license,” Hearn said in the opinion.
Hearn cited an opinion of the Commonwealth Court of Pennsylvania as an explanation.
“The circumstances creating a need for the doctrine are not present in today's society,” the Pennsylvania opinion says. “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.”
The Pennsylvania opinion adds that the marital status of parents no longer determines what their children will inherit.
“We find the Pennsylvania court's reasoning and other considerations sufficiently persuasive to adopt a bright-line rule requiring those who wish to be married in South Carolina to obtain a lawful license,” Hearn said in the opinion issued Wednesday.
Among the other considerations listed in the opinion are that courts can struggle to determine if or when parties involved express the intent to be married, which reduces the “solemn institution” of marriage into a guessing game, that living together while unmarried is exceedingly common and continues to increase, and that the right to marry is easily available to all who wish to.
Later, Hearn added that the doctrine creates a situation in which a couple might attempt to claim marriage on their tax returns — married couples receive double the tax credits — but not in other areas of life.
“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,” Hearn said in a footnote. “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.”
The opinion indicates that fewer than 10 jurisdictions in the United States continue to recognize the doctrine.
The jurisdictions that continue to recognize common-law marriage are Colorado, the District of Columbia, Iowa, Kansas, Montana. Oklahoma, Rhode Island and Texas. New Hampshire recognizes common-law marriages for the purposes of probating an estate. The status of common-law marriages in Utah is ambiguous.
The trend of abolishing the doctrine of common-law marriage began with the Council of Trent in 1563 when the council ruled that no marriage would be valid in the eyes of the Roman Catholic Church unless it was solemnized by a priest. Then, in 1753, Great Britain passed an act that validated no marriage unless the marriage was performed under the Church of England (Jews and Quakers were exempt). That law did not apply to the American colonies, thus, when the colonies broke away, the doctrine remained intact.
Alabama, the opinion continues, became the latest state to abolish the doctrine, doing so via a statute enacted in 2016.
The South Carolina General Assembly could take action to incorporate the doctrine into South Carolina Code. However, the General Assembly is finished for the year and will not return until January.