Tying the “Not”: The South Carolina Supreme Court’s Prospective Abolishment of Common Law Marriage
Morgan E. Spires*
Though South Carolina adopted the doctrine of common law marriage in 1832, the 2019 decision of Stone v. Thompson drastically altered the course of family law jurisprudence by prospectively abolishing the institution. Stone has immeasurable repercussions, and unfortunately, those who the decision impacts directly may not comprehend the magnitude of the abolishment until their partner passes away, their relationship splits, or tragedy strikes. Upon these occurrences, South Carolina law no longer protects relationships that are not solemnized by a formal marriage ceremony, regardless of whether the relationship qualified as a marriage under the common law regime. Take, for example, a hypothetical husband and wife named Cooper and Adeline. The couple was married on a brisk autumn evening at the Lace House in Columbia, South Carolina. Adeline’s best friend, Rachel, applied to become a notary public specifically to perform the ceremony. Although neither Cooper nor Adeline were aware at the time, Rachel had not yet filed her commission. Five years later, Adeline discovered that Cooper, a successful cardiothoracic surgeon, was having an affair with his scrub nurse. Adeline filed for divorce on the basis of adultery, and on a whim, Cooper decided to check the validity of their marriage license. Regrettably for Adeline, she and Cooper were married three months after the opinion of Stone v. Thompson. Because their marriage license was not properly notarized, their marriage was procedurally invalid. As an unemployed housewife, spoiled by the luxuries of her husband’s income, Adeline was left empty-handed after his affair. Without the availability of common law marriage, Adeline had no income, no place to live, and no right to equitable distribution or alimony.
In its abolishment, the Stone court first evaluated the historical justifications for common law marriage, acknowledging the role of the institution during colonization and then turning to state recognition of the doctrine. The court conceded common law marriage was widely accepted among states well into the 1900s yet indicated that the current trend of abolishment signifies a new era. Turning toward South Carolina law, the Stone court claimed existing ambiguities in the institution of marriage evidenced a need for fairness and consistency: “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.” Although this Note contends the Stone usurped legislative power by abolishing common law marriage, it is important to observe that the institution’s outcomes served as a basis for legitimate marital benefits, including alimony, distribution of assets, estate distribution, insurance benefits and spousal coverage, visitation and custody, and many others.
The drastic implications of Stone’s prospective abolishment are incredibly unjust, especially for couples with a genuine good faith belief in the validity of a covertly defective marriage. Prior to Stone, such couples had an underlying assurance that the doctrine of common law marriage ratified any defective formal marriage. After Stone, however, these couples cannot retroactively establish a marital relationship, which leaves them without a way to ensure protection or receive marital benefits in the case of divorce or tragedy. While other states have adopted protections to safeguard good faith couples, such as putative spouse doctrine and palimony, the only existing doctrinal protection in South Carolina is the good faith exception, found in Thomas v. 5 Star Transportation. As this Note maintains, however, the good faith exception is severely underdeveloped and rather inadequate to address the complexities Stone presents. In order to address the inequities of Stone in this regard, the South Carolina Supreme Court must expound upon the good faith exception by recognizing the doctrine’s role outside of the context of bigamy, eliminating its impediment removal requirement, and sufficiently clarifying the definitional standard of “good faith.” Ultimately, despite the court’s seemingly clear-cut holding, Stone commemorates an uncertain era in family law jurisprudence—one that is riddled with unfair remedies and will, in time, require the court to adopt some form of doctrinal protection for good faith partners.
Part II of this Note describes the doctrine of common law marriage and its history before examining the Stone court’s prospective abolishment and refined test for retroactive establishment. Part III analyzes the court’s authority to abolish common law marriage and examines the future implications of such abolishment. Part IV describes the current rights of cohabitants who do not qualify for common law marriage because of Stone, while Part V suggests three possible doctrinal approaches that ensure equitable remedies for partners entering a marriage with mistaken belief as to its validity. Finally, Part VI concludes by recounting the myriad effects of the prospective abolishment and proposing the South Carolina Supreme Court expand and adopt the “good faith exception” found in Thomas v. 5 Star Transportation.
In Stone v. Thompson, the South Carolina Supreme Court was tasked with “determin[ing] whether the family court was correct in finding Susan Thompson and Marion Stone were common law married in 1989, as well as whether Stone was entitled to an award of attorney’s fees.” Evidently, upon analysis of the parties’ relationship, the court determined it was time for South Carolina to “join the overwhelming national trend and abolish [the institution of common-law marriage]. Therefore, from [July 24, 2019] forward—that is, purely prospectively—parties may no longer enter into a valid marriage in South Carolina without a license.”
Unlike formal marriage, common law marriage does not depend on the existence of a marriage license. Rather, the Stone court noted: “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.” Thus, a common law marriage consists of two elements: (1) an express or implied contract to marry and (2) mutual intent to be married. More often than not, a common law marriage is implied by direct and circumstantial evidence, such as tax returns, living arrangements, and introductions to third-parties as “husband” or “wife.”
For centuries, the institution of marriage, whether formal or common law, has been marked by “an expanding list of governmental rights, benefits, and responsibilities.” These rights, benefits, and responsibilities apply at the state and federal levels and include:
[T]axation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.
Despite the procedural differences between formal and common law marriages, as noted South Carolina family law professor Roy Stuckey has written, “[t]he legal consequences of entering into a common law marriage are no different from the legal consequences of entering into a [formal] marriage. Marriage is marriage, and the same rights and obligations attach to either form.” Accordingly, a state’s recognition of common law marriage inherently influences a couple’s right to enjoy both state and federal marital benefits, including alimony, distribution of assets, estate distribution, insurance benefits and spousal coverage, visitation and custody, and many others.
The doctrine of common law marriage began in pre-Reformation Europe as a result of mounting frustrations with the formal requirements of marriage. At the time, marriage was available solely to those members of wealthy and noble families because, as family law scholar Göran Lind acknowledged, “[o]nly the upper class . . . had the means and the possibility of entering into ceremonial marriages.” Without a supporting spouse, women outside of these social circles were rarely capable of independently supporting themselves, much less any illegitimate children. Eventually, common law marriage developed as an available alternative, producing the societal recognition of marriage while preserving the costs and formalities of a traditional marriage ceremony.
Although the 1753 passage of Lord Hardwicke’s Marriage Act ceased English recognition of common law marriage, the American colonists carried their own opinions on the doctrine to the New World. While some colonies abrogated common law marriage through codification, others continued to informally recognize common law marriage notwithstanding the English enactment of Lord Hardwicke’s Marriage Act. Upon the American Revolution, however, New York became the first state to recognize common law marriage via judicial decision, citing three English cases as its basis for doing so.
Soon after New York adopted common law marriage, the doctrine swept the United States. States enacted legislation and developed case law, conceding numerous justifications for its recognition. Primarily, adopting states were concerned with procedural defects that failed to satisfy the statutory requirements of formal marriage. First, because state officers and ministers were located primarily in well-populated communities, access to authorized officiants was reduced for those in distant, rural areas. In tandem, state governments expressed overwhelming concern for the single mothers who depended on governmental benefits to support illegitimate and immoral children. These converging concerns led states ultimately to view the doctrine of common law marriage as a necessity—recognizing the burden of harsh statutory requirements, acknowledging the risk of accidental non-compliance, and simultaneously ensuring marital benefits for those in need. Despite modern access to officiants and less apprehension for dependent women and children, procedural defect is still an overwhelming concern—one which the Stone court overlooked.
Eventually, following the lead of New York and a wealth of other states, South Carolina adopted common law marriage in the 1832 case of Fryer v. Fryer, where the court set forth that “[o]ur law prescribes no [marriage] ceremony. It requires nothing but the agreement of the parties, with an intention that that agreement shall, per se, constitute the marriage.” Following judicial recognition of common law marriage, the South Carolina General Assembly enacted a statute implicitly recognizing the doctrine: “Nothing herein contained shall render any marriage illegal without the issuance of a license.”
Although common law marriage was widely accepted during the late 1800s and well into the 1900s, the Stone court noted that “the [modern] prevailing trend . . . has been repudiation of the doctrine.” Currently, fewer than ten states permit common law marriages. As for South Carolina, the legislature has made multiple attempts to prospectively abolish common law marriage after a specified date, while simultaneously amending or repealing § 20-1-360 of the South Carolina Code to conform with the proposed abolishment. However, of its ten attempts, the most successful attempt barely passed in the house of representatives before being introduced to the general floor of the senate at session’s end. Notwithstanding the legislature’s attempts, until Stone, there was no indication the South Carolina Supreme Court was on the heels of abolishment, either.
After examining the historical basis for common law marriage, the Stone court assessed the modern trend of abolishment in the United States. Although Alabama was the most recent state to abolish common law marriage via judicial opinion, the Stone court lent much credence to Pennsylvania’s 2003 abolishment in PNC Bank Corporation v. Workers’ Compensation Appeal Board (Stamos), whereby the Pennsylvania Commonwealth Court declared that the paternalistic motivations underpinning the doctrine of common law marriage are no longer apparent in modern society. According to the Stone court, the current shift away from paternalism is due, in part, to the fact that, “[b]y and large, society no longer conditions acceptance upon marital status or legitimacy of children.”
Following its historical analysis, the court announced a general power to overrule the common law. In defining its power, the court observed: “We will act when it has become apparent that the public policy of the State is offended by outdated rules of law . . . . [C]ommon-law marriage’s origins lie in the common law, and consequently, it may be removed by common-law mandate, regardless of tacit recognition by our legislature.” Transitioning from the idea of power to the state’s current policy goals, the court acknowledged that, whereas early South Carolina cases cited “immorality, illegitimacy, and bastardy” stigmatizations as the basis for common law marriage, these factors “are no longer stigmatized by society.” Additionally, the court observed that a presumption of marriage solely on the basis of cohabitation is improper due to the fact that cohabitation is progressively common among modern households.
Throughout the Stone opinion, it is evident the court’s primary concern was generating consistent outcomes in lower courts through concrete and efficient analysis. Specifically, the court expressed apprehension in continually requiring trial courts to engross themselves in the determination of mutual intent to be married. In determining such intent, the Stone court noted that “courts struggle mightily to determine if and when parties expressed [the mutual intent to be married] . . . . 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.” As a result of the proclaimed inequities of this guessing game, the court single-handedly professed that the fundamental right to marry deducts a “right to remain unmarried [that] is equally weighty, particularly when combined with our admonitions that a person cannot enter into such a union accidentally or unwittingly.”
Before Stone, South Carolina courts applied two interchangeable and contradictory standards to common law marriage: (1) a preponderance of the evidence or (2) a rebuttable presumption—based on apparently matrimonial cohabitation—which could only be overcome by “strong, cogent, satisfactory, or conclusive evidence” to the contrary. Due to the nature of prospective abolishment, the Stone court conceded there remains a class of individuals rightfully entitled to recognition for common law marriages entered into before the issuance of the opinion. However, the court expressed concern that applying the above standards created too much uncertainty. Consequently, the court adopted a new standard of clear and convincing evidence to ensure that a couple cannot enter into a common law marriage unless the couple fully intended to form a marriage. Under this standard, “a party [must] show a degree of proof sufficient to produce a firm belief in the allegations sought to be established.”
Although the Stone court acknowledged its ability to “retroactively . . . divest vested rights,” the court reached a decision that undermined the established principles on which thousands of couples have relied. Specifically, the court adopted a prospective approach whereby “no individual may enter into a common-law marriage in South Carolina after [July 24, 2019].” Rather, any marriage after this date must be manifested by a marriage license in order to be valid. If a party alleges that a common law marriage was entered into prior to July 24, 2019, the party is “required to demonstrate mutual assent to be married by clear and convincing evidence. Courts may continue to weigh the same circumstantial factors traditionally considered, but they may not indulge in presumptions based on cohabitation, no matter how apparently matrimonial.”
The legislature can undoubtedly codify a common law doctrine; however, this action would prompt the question: Did the South Carolina General Assembly do so with the passage of § 20-1-360 of the South Carolina Code? The Stone court assumed the statute is actually not a codification, stating: “While our legislature has not expressly codified common-law marriage, it has recognized the institution by exception to the general requirement to obtain a marriage license.” Additionally, later on in the opinion, the court observed that because common law marriage is a purely common law doctrine, “it may be removed by common-law mandate, regardless of tacit recognition by our legislature.” This observation begs the questions—What exactly is tacit legislative recognition, and does such recognition constitute codification? Upon thorough analysis, it appears the answer to the latter is affirmative—tacit legislative recognition is effective codification.
Although codification of common law marriage is rather rare, one example of a state having done so is California. In 1850, the California Supreme Court first recognized common law marriage, stating: “Marriage is a civil contract, and no form necessary to its validity.” Subsequently, in 1872, California passed a statute codifying common law marriage: “Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations.” Despite the statute’s failure to refer to common law marriage by name, California courts interpreted the statute to allow common law marriages. In fact, one California Associate Justice noted that “[California] statutes control the validity of marriages without regard to the common law.” In addition to California, Montana enacted a substantially similar statute in 1895. Like the California Associate Justice, a Montana Supreme Court Justice declared common law marriage as synonymous to a statutory marriage formed by either solemnization or “a mutual and public assumption of the marital relation.”
Most analogous to § 20-1-360 of the South Carolina Code is the initial codification of common law marriage in the Dakota Territory, later to be divided into North Dakota and South Dakota. There, the legislature passed a session law in 1877 that codified the common law doctrine: “Marriage must be solemnized, authenticated and recorded as provided in this article; but non-compliance with its provisions does not invalidate any lawful marriage.” Upon the establishment of South Dakota as its own individual state, the Supreme Court of South Dakota conducted a thorough discourse, assessing the role of this statutory exception within the scheme of formal marriage requirements. Specifically, evaluating a statutory title similar to the licensure requirement of South Carolina, the court in In re Svendsen’s Estate noted:
What other interpretation can be put upon this [statutory exception] than that any marriage which complies with [the statutory requirements of a personal relationship arising out of a civil contract and consent followed by a mutual assumption of marital rights, duties, or obligations] will be valid regardless of failure to conform to those requirements looking to the solemnization, authentication, and recording of the marriage?
Although antiquated in its application due to South Dakota’s statutory amendment prospectively abolishing common law marriage as of July 1, 1959, perhaps the Stone court should have regarded this opinion for guidance.
It is widely accepted that a doctrine enacted and regulated solely by the judiciary is clearly common law based. However, when an otherwise common law doctrine has been acknowledged by the legislature and subsequently codified, there is doubt as to the judiciary’s exclusive authority over the doctrine. Upon codification of a common law doctrine, the judiciary no longer has authority to develop a robust area of case law. Rather, the judiciary’s role shifts to that of an interpreter of statutory law. Recognizing its role as an interpretive body after codification of a common law doctrine, the South Dakota court in In re Svendsen’s Estate impressively avoided a usurpation of legislative power by observing:
[W]e are not in the happy position of the common-law jurist who, untrammeled by statutory enactment, was free, when declaring what the law was, to give due weight to the changes wrought by advancing civilization. Today the law-making power is vested in our legislative bodies-it is they that define the policies of the time-and when they have spoken, it is for the courts but to construe their words and then declare and enforce the law as enacted by them.
Unlike the South Dakota Supreme Court, the court in Stone ignored the applicable codification of common law marriage and took matters into its own hands.
The Stone court cited Russo v. Sutton as its source of authority to rewrite common law, stating: “The common law changes when necessary to serve the needs of the people.” Yet, the court’s reliance on Russo is largely misplaced. Recognizing that the South Carolina General Assembly already dispensed with related common law heart balm actions, the court in Russo prospectively abolished the heart balm action of alienation of affections. The Stone court is correct in saying that it has power to eliminate a common law doctrine; however, Russo is distinguishable from Stone. Unlike the purely common law doctrine of alienation of affections, common law marriage is codified. In Russo, it is axiomatic that while the legislature may abolish a common law cause of action, the court may not independently override a statutory codification.
Two cases more applicable to the power struggle in Stone are those regarding dog-bite liability in South Carolina. Prior to 1985, South Carolina common law followed the “one free bite” rule; however, in 1985, the South Carolina Supreme Court in Hossenlopp v. Cannon “rejected the ‘one free bite’ rule and imposed quasi-strict liability on dog owners by adopting the ‘California Rule’ for dog bite liability.” In the year following the Hossenlopp decision, the South Carolina General Assembly codified the California Rule and “additionally imposed liability on any other persons having the dog in their ‘care or keeping.’” In 2009, the South Carolina Supreme Court revisited the dog-bite liability issue in Harris v. Anderson County Sheriff’s Office. Recognizing the implication of codification, the court in Harris observed: “This transition from the common law to the statutory setting, of course, restricts our policy-making role and concomitantly requires this court to discern legislative intent.” Regarding any argument that § 20-1-360 of the South Carolina Code fails to directly mention “common law marriage,” neither did the statute at issue in Harris. Yet, the Harris court simply evaluated the unambiguous language of the statute to determine legislative intent, which the Stone court should have done, as well.
When any court undertakes to evaluate legislative intent, such intent should be “ascertained by interpretation from consideration of the entire act, its nature and object, and the consequences of construction one way or the other.” The Stone court interpreted § 20-1-360 of the South Carolina Code as merely directory, but the South Carolina General Assembly’s attempts to abolish common law marriage signals a starkly different view. Considering the high demands of legislative action in South Carolina, it is hard to imagine the legislature would exhaust ten legislative sessions over the course of an eighteen-year period to abolish a statute it perceived as directory. Moreover, considering that all legislative bills attempting to abolish common law marriage have referenced § 20-1-360, this indicates the legislature recognized that the judicial doctrine of common law marriage and the statutory exception could not coexist. The fact that, even under public criticism, the legislature chose not to abolish this statute supports the notion that it is mandatory, and thus, the Stone court erred by deeming pertinent statutes tacit recognition.
Upon codification of a common law doctrine, the court’s role shifts from being a creator of common law to an interpreter of statutory law. In Stone, the court gleaned guidance from the general statutory requirement that all valid marriages be manifested by a valid marriage license. However, in doing so, the court essentially handpicked which provisions of the code sections applied. The court’s role is to interpret statutory law, not to abrogate it. The court noted that it “can discern no more efficacious way to fulfill [predictable, just outcomes] than to require those who wish to be married in our State to comply with our statutory requirements.” Yet, statutory requirements conflict with the Stone holding because, as of now, § 20-1-360 recognizes that a marriage contract is not illegal absent a license, whereas courts require a license to find a marriage valid. By implication, when a sharp statutory mandate allows for a valid marriage regardless of licensure, the court cannot rear its power to declare unlicensed marriages void.
Notwithstanding the Stone court’s usurpation of power, the repercussions of Stone are immeasurable. Although the abolishment only applies prospectively, the force of the decision will be felt for decades to come. Under the doctrine of common law marriage, any married couple was eligible to enjoy the benefits of marriage and the protections of divorce, notwithstanding a marriage license or lack thereof. Because “[v]alid marriage under state law is . . . a significant status for over a thousand provisions of federal law,” the effect of Stone is a deprivation of myriad liberties, including alimony, distribution of assets, estate distribution, insurance benefits and spousal coverage, visitation and custody, and many others.
One of the most palpable consequences of Stone is the unavailability of alimony for common law spouses upon dissolution of their relationship. A potential award of alimony safeguards a disadvantaged spouse in both fault and no-fault divorces, yet Stone eliminates all common law couples for qualification by entirely denying the recognition of their marriage in the first place. Furthermore, because alimony is often granted with termination upon remarriage of the supported spouse, the result of Stone inequitably allows a supported spouse to avoid alimony termination.
For example, assume Ed and Allie were married in 2010. After ten years of marriage, the couple obtained a divorced, and the family court ordered Ed to pay Allie $1,200 per month in alimony. One year after their divorce was finalized, Allie began dating Todd. Todd was a multimillionaire who happened to be the chief executive officer at the marketing firm where Allie worked. Allie later moved in with Todd, and they shared living expenses. Two months after living together, Allie received a call from her sister, requesting that Allie care for their ailing mother once per month to give their father a short break. Allie agreed, and she traveled to North Carolina one Friday per month, leaving Todd behind to care for the home. Eventually, Allie and Todd began introducing themselves as husband and wife at work, but because Allie knew that her alimony would terminate upon remarriage, she and Todd refused to sign a marriage license or have a formal ceremony. Meanwhile, Ed was a teacher, getting by on the bare minimum due to his income being significantly reduced by alimony payments. Prior to Stone, Allie and Todd’s relationship would likely constitute a common law marriage, and Ed could petition for termination of alimony on the basis of Allie’s remarriage. After Stone, however, Allie can enjoy the benefits of alimony with no strings attached because Allie and Todd’s relationship does not qualify as a common law marriage.
Although an obligor can seek a remedy under § 20-3-150 of the South Carolina Code—which requires the court to modify alimony if a supported spouse continuously cohabitated with a different partner for ninety days—Ed is out of luck because the cohabitation period technically restarted each time Allie left to care for her mother. Justice Hearn, the author of Stone, has acknowledged the practical impossibility of using this protection to terminate alimony: “Few people live under the same roof for ninety consecutive days; indeed, I would venture to say that because of their work schedule, none of the members of this court could be considered to have resided with his or her spouse for ninety consecutive days.” Before Stone, supporting spouses could circumvent this provision if the court found that their ex-spouse formed a common law marriage with another individual. However, the inequitable implication of Stone is such that an obligor is unable to terminate alimony payments even when the supported spouse is, for all intents and purposes, enjoying a quasi-marital relationship. As a result, a spouse like Ed is left footing the bill for his ex-wife’s rendezvous with her new lover, despite having a subpar salary and a mountain of personal expenses.
Upon dissolution of marriage, South Carolina courts apply fifteen statutory factors to determine the superior method of equitably distributing marital property in a particular case. Equitable distribution is a tremendous benefit of marriage because it utilizes equity principles to ensure each spouse receives fair compensation for their marital efforts and contributions. Thus, the contributions of an economically successful spouse will not always impose a financial burden on an unemployed spouse. Rather, the court considers equitable factors when distributing funds, including whether an unemployed spouse maintained the home and took care of children.
In this regard, the abolishment of common law marriage disadvantages couples that would otherwise qualify as common law married. Now, instead of equitably distributing marital property and reimbursing marital contributions, cohabitants must divide their property under traditional rules of property law. Without a remedy like equitable distribution, there is no consideration of the couple’s joint effort. Thus, a wife who may have contributed substantially more to the enhancement of a retirement account in her husband’s name, for example, may be unable to recover. Whereas a family court would consider this contribution in the context of marriage and distribute assets accordingly, an unmarried couple must depend on a circuit court’s title-based approach, likely resulting in their contributions being viewed as a gift.
The failure to recognize transmutation among an otherwise common law couple is another consequence of abolishing common law marriage. Under the doctrine of transmutation, separate property can be converted, or transmuted, into marital property and thus subject to equitable distribution if “the property becomes so commingled as to be untraceable; [the property] is utilized by the parties in support of the marriage; or [the property] is titled jointly or otherwise utilized in such manner as to evidence an intent by the parties to make it marital property.” A common example of transmuted property is a home that one partner owned prior to the relationship but utilized as a marital home during the marriage. Because the owner utilized the home in a manner indicating intent to become marital property, the home is transmuted and, therefore, subject to equitable distribution. Hypothetically, the unavailability of common law marriage may result in thousands of dollars in lost equity, and ignoring the doctrine of transmutation in such contexts inevitably results in a prejudicial distribution of separate property according only to title only.
In South Carolina, the law provides a default distribution in formal marriage such that, if a decedent dies intestate, “[t]he intestate share of the surviving spouse is: (1) if there is no surviving issue of the decedent, the entire intestate estate; (2) if there are surviving issue, one-half of the intestate estate.” As a result of Stone, an otherwise common law spouse surrenders his or her default right to a minimum 50% share in a spousal estate. To ensure that a living partner benefits from the estate of a decedent, an otherwise-qualifying couple must make certain arrangements that are not required for formally married couples. Considering that a 2019 study of 1,003 adults revealed that only 57% of them had estate planning documents, the removal of a legal default protection for such a large subset of individuals is drastic.
To ensure a right in their partner’s estate, an otherwise common law couple must, first and foremost, establish a will or revocable living trust, explicitly designating one another as beneficiary or trustee. This simply guarantees distribution according to the decedent’s desires. To account for possible illness or other incapacitations, a couple must then complete healthcare directives or living wills, along with a durable financial power of attorney. Otherwise, a partner may not have the right to make healthcare decisions or the adequate funding to provide care for his or her partner. These additional requirements do not resemble each and every precaution that couples should take to safeguard their rights in the event of death or incapacity, but they do provide a comprehensive overview of the complexities that confront otherwise common law married couples.
Most state, federal, and private insurance policies allow policyholders to seek coverage for their spouses and dependents, and these policies often define spouse according to state law. Thus, married couples enjoy virtually as many insurance benefits as they can afford. After Stone, however, the definition of a spouse encompasses only those South Carolina citizens with valid marriage licenses. Accordingly, couples that would otherwise qualify for spousal coverage on health insurance, life insurance, and automobile insurance policies may be left empty-handed. A simple solution to this inequity seems to be for a couple to get married. If an insured partner passes away or becomes ill, however, the mere absence of a certificate will prevent the other partner from claiming spousal coverage to fund immediate needs.
Two other implications of Stone arise in the employment law context. First, under the South Carolina Workers’ Compensation Act, a spouse is eligible for dependent survivor benefits under § 42-1-175 of the South Carolina Code—which defines a surviving spouse as “the decedent’s wife or husband living with or dependent for support upon the decedent at the time of the decedent’s death or living apart from the decedent for justifiable cause or by reason of desertion by the decedent at such time.” This is another example of a remarkable benefit of marriage, especially for those who do not have life insurance or other existing protections to safeguard their finances in the case of unexpected death. Unfortunately for those affected by Stone, because a common law spouse is no longer considered the wife or husband of a decedent, there are absolutely no survivor benefits available to such a dependent under South Carolina’s current workers’ compensation regime. Inevitably, this shift in definition will leave the surviving partner with even more of a financial burden after the death of a loved one.
Second, and perhaps the most extreme result of Stone, is the abolishment’s effect on Family and Medical Leave Act coverage. The Act defines “husband or wife” as follows:
[T]he other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into . . . . This definition includes an individual in a same-sex or common law marriage that either: (1) Was entered into in a State that recognizes such marriages; or (2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.
An implication of Stone is that, after the date of the opinion, a couple must register a valid marriage license with the state in order to seek covered medical leave to care for a spouse. Hypothetically, this means that a couple in the year 2060 may have been together for forty years, yet neither can take leave to care for their terminally ill partner. This is an unfortunate outcome for all involved, particularly for those who do not realize their need for coverage until their partner is already ill or unexpectedly incompetent, or those who, for possible religious or personal reasons, are not ready to enter into a formal marriage.
When a child is born to married parents, the Supreme Court of South Carolina has declared “a common law presumption that [the child] is a child of the marriage.” Unless a husband submits evidence rebutting this presumption, his presumed paternity will prevail. In the case of marital separation, both parents have full custody rights to their child until a family court orders otherwise. Upon petition for custody or upon divorce proceedings, § 63-5-30 of the South Carolina Code recognizes that currently or previously married parents have “equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of [minor children.]” Beginning on equal footing, a family court evaluates the best interests of the child in order to determine whether custody or visitation is appropriate. Absent a wife’s showing that her husband is an unfit father, the court will typically allow the father to have unsupervised visitation at a minimum.
In terms of visitation and custody, the immediate ramification of Stone will affect a specific type of father; however, this effect is incredibly harsh when comparing the rights of a married father to those of an unmarried father. For example, consider a father, Chris, who began a relationship with his girlfriend, Samantha, in the winter of 2019. Throughout their five-year relationship, Chris and Samantha filed joint tax returns, bought a home together, and introduced one another as husband and wife. Eventually, Samantha became pregnant, and the couple was elated. Samantha had a son named Elijah, but while in the hospital, Samantha discovered Chris was cheating on her. Thereafter, Samantha refused to acknowledge Chris on Elijah’s birth certificate, and in fact, she requested that hospital security keep Chris away from her room. Prior to Stone, Chris and Samantha would likely constitute a common law married couple, Chris would be Elijah’s presumed biological father, and Chris would inevitably be entitled to custody or visitation. However, because Chris and Samantha entered into a relationship after the July 24, 2019 opinion, Chris is deprived of these rights. Instead, he has the rights of an unmarried father, which, unfortunately for him, are unfavorable in South Carolina.
When a South Carolina child, like Elijah, is born out of wedlock, § 63-17-20(B) of the South Carolina Code presumes custody with the child’s mother. In order to gain any right of custody or visitation, an unmarried father must overcome several hurdles. First, the father must establish his paternity. As the South Carolina Center for Fathers and Families notes, if the father does not establish paternity, “[t]he father has no legal say in decisions such as education, medical treatment[,] or religion . . . does not have the right to be notified if his child is being adopted[.]” Although it would seem sufficient, acknowledgement of fatherhood on a child’s birth certificate does not legally establish paternity, and the father’s requirements vary depending on the compliance of his child’s mother.
If a child’s mother consents to the father establishing paternity, the mother and father can sign a Paternity Acknowledgement Affidavit either in the hospital or at a health department in the county of their child’s birth. However, if a child’s mother opposes the father establishing paternity, she has incredible power over the situation. In such a situation, the father must first complete DSS Form 27103. Upon completion, the father must undergo a test to match his DNA with that of the child, and this test must positively identify the father as the child’s biological match in order to legally establish paternity.
If a father fails to take the appropriate steps to establish paternity, his child’s mother will have incredible power over his rights to the child. For example, if the father has not filed a claim of paternity with the Responsible Father Registry and is not actively present in the child’s life, a mother may have the unilateral ability to terminate the father’s rights or place the child for adoption without notice to the father. Although this example is rather drastic, it goes to show the incredible disparity in married fathers’ rights as compared to unmarried fathers’ rights. Whereas § 63-9-310(A)(2) of the South Carolina Code requires consent from both married parents before someone can adopt their child (regardless of the father’s involvement in his child’s life), the comparable statute for unmarried fathers requires a father’s consent only when he can overcome substantial burdens of proof.
Even after a father establishes legal paternity, however, he must overcome additional hurdles to ensure visitation or custody. Assuming not every relationship ends on good terms, vindictive mothers may leverage visitation or custody, making it increasingly difficult for unwed fathers to obtain these rights. According to Robert Franklin, attorney and journalist for National Parents Organization, this creates a scenario where fathers “are still under the thumb of their child’s mother. Further, if an unmarried father seeking custody cannot access his child, he faces a disadvantage under the South Carolina Supreme Court’s “assumption that custody will be awarded to the primary caretaker.” Thus, an unwed father begins the process at the short end of the stick, so to speak. First, he must overcome excessive impediments to prove his paternity, and then, he must formally petition for visitation and custody, if applicable.
For both married and unmarried fathers, a custody case presents a plethora of challenges. However, because an unmarried father does not have default rights under South Carolina law like married fathers do, he must successfully prove further administrative burdens, risking even more litigation to ensure participation in his child’s life. Unfortunately, the abolishment of common law marriage may isolate unmarried fathers from their children until a court orders visitation or custody. Stone undoubtedly places an undue burden on fathers in otherwise-qualifying relationships by requiring not only the establishment of legal paternity but also an uphill battle for visitation or custody. Unless and until a father establishes legal paternity, his child’s mother controls the scope of his rights, and he is much more vulnerable than a married father with assumed rights.
Existing law dictates that “a man and woman cohabiting . . . do not acquire, by reason of such cohabitation alone, any rights in property accumulated in the name of the other, regardless of their good faith.” Compared to the benefits of a marital relationship, couples who would have constituted common law spouses prior to Stone now have drastically different rights upon dissolution. As a result of Stone, cohabitating partners that fail to complete a valid marriage license cannot seek equitable distribution through family court. Instead, cohabiting partners must seek remedies through contract or property law, whereby circuit courts primarily concentrate on pooling and contribution to establish cohabitant rights.
The most litigated aspect of cohabitant rights to personal property is pooling, a concept similar to the marital doctrine of transmutation. To determine whether cohabitants pooled their income, assets, or debts, the court evaluates the following:
For what length of time have the parties pooled the property or funds? What is the form in which the pooled funds or assets are held (e.g., title of bank account, name or names on real estate title, names on credit cards, person who is listed on bills)? What was their stated intent in pooling (e.g., support an ill partner, support a stay-at-home person, use of a common bank account, creating joint or co-ownership or property, giving of gift to a partner, etc.)? Is there a sizable disparity in the property or amounts pooled (e.g., one person contributes significantly more, or less, than the partner)?
In addition to pooling, the court may evaluate contribution. Unlike pooling, contribution is a concept that measures the interests parties have in acquired property based on the efforts each party made in the form of “labor, capital, or the like.” Thus, contribution resembles more of an effort-based investment, whereas pooling is exclusively monetary.
Upon dissolution of a cohabitant relationship, another consideration is interest in real property. If both partners hold title to real estate through a joint tenancy and cannot agree to partition, one of the partners must sue for partition in order to either “have the property sold and the proceeds divided in proportionate shares among the owners” or divide the property such that “each owner receives a physical portion of the property equal to his percentage of ownership.” In the case of a joint tenancy, failure to sue for partition before the death of either partner will result in survivorship rights to the opposing partner. If the parties own real estate through a tenancy in common and cannot agree to a partition, however, one of the partners must sue for partition upon which the court awards ownership rights according to a party’s proportional ownership of the property. If the parties neither hold joint title nor have an existing lease agreement for the property, a non-owner partner is likely a month-to-month tenant. To evict a partner in a month-to-month tenancy, the owner partner must simply give thirty-days’ written notice.
It is apparent the abolishment of common law marriage adversely affects a large subset of individuals either who wish to enjoy the benefits of marriage without the formality of traditional marriage requirements or who cannot enjoy such benefits because of some tragedy depriving them of the ability to marry. Perhaps most disadvantaged by the abolishment, however, are individuals who believe themselves to be parties to a formal marriage but nevertheless have an impediment rendering their marriage null and void. After Stone, these couples no longer have a default alternative to guarantee legal recognition of their marriage. While the Stone court unmistakably established its distaste for common law marriage as an independent doctrine of marital benefits, it did not expressly contemplate the effects of its decision on couples with a good faith belief in the validity of their marriage. The South Carolina Supreme Court will inevitably encounter future litigation involving such issues, and as a result, fairness and equity demand an exception in these cases.
In 2015, the South Carolina Court of Appeals in Thomas v. 5 Star Transportation explicitly declared a third type of marriage, separate from formal and common law marriage, known as a marriage formed through the good faith exception. Under Thomas, the court held:
[I]f a man and woman enter into a contract of marriage believing in good faith that they are capable of entering into the relation notwithstanding a former marriage, when, in fact, the marriage is still of force, and after the removal of the obstacle of the former marriage the parties continue the relation and hold themselves out as man and wife, such action constitutes them man and wife from the date of the removal of the obstacle.
South Carolina is the only state to recognize this exception, and unlike state precedent regarding both formal and common law marriage, the good faith exception is severely underdeveloped. The exception has applied in merely four cases—Davis v. Whitlock in 1911 and Bannister v. Bannister in 1929 (both South Carolina Supreme Court cases), and Weathers v. Bolt in 1987 and Thomas v. 5 Star Transportation in 2015 (both South Carolina Court of Appeals cases). Of these cases, Davis and Thomas were the only cases to find a valid marriage under the good faith exception.
In Davis, the defendant’s first husband abandoned her in 1868, and she married the plaintiff in 1887. At the time of her marriage to the plaintiff, the defendant admitted “she did not know whether [her first husband] was dead or alive, and that she made no inquiry about it, and that she did not tell [the] plaintiff of her prior marriages.” In 1901, the defendant learned that her first husband died in 1895, seven years after her marriage to the plaintiff. Despite this news, the defendant continued her relationship with the plaintiff until their separation in 1907. The Davis court held that the parties were legally married as of 1895 because of the good faith exception.
Although Davis makes no direct mention of common law marriage, an initial decision by the trial court found the plaintiff could not invalidate his marriage with the defendant because the couple “lived together as man and wife and recognized each other as such for more than 10 years after the death of [the plaintiff’s first husband], which removed the only impediment to a valid marriage . . . . ” Based upon these findings, the Davis court held there was “sufficient [evidence] to establish a common-law marriage.” Considering the context of the Davis decision, it seems that the good faith exception is a remedy completely dependent on the recognition of common law marriage. Thomas, however, undermines this conclusion by finding a marriage through the good faith exception and expressly declining to recognize a common law marriage.
The Davis court cited five cases in support of the good faith exception. Upon further evaluation, three of those cases used the good faith exception to find a common law marriage. Another one of those cases did not expressly state a finding of common law marriage; rather, it cited other cases indicating the basis of its decision was the common law marriage doctrine. In the only remaining cited case, Chamberlain v. Chamberlain, the court applied the good faith exception as a remedy exclusive of common law marriage, Chamberlain did not identify its doctrine with terms such as “good faith” or “exception,” and the opinion is extremely short with not much substantive value. The closest the Chamberlain court comes to announcing a rule is, “In connection with the intent of both parties as admitted by them, we have evidence to show that they manifested that intent to others after the divorce in such a way as to fully establish the legality of their relationship.” Thus, despite its reliance on precedent that seemingly equates marriage via good faith exception with a common law marriage, Thomas is the only prominent case declaring a marriage formed by the good faith exception outside of the context of common law marriage.
Assuming the Thomas approach is correct such that common law marriage and the good faith exception are mutually exclusive, Thomas’ rule is still applicable in South Carolina, notwithstanding Stone. There are notable concerns with the good faith exception, however. First, prior cases have been limited to those where the impediment at issue is bigamy. This leaves open the possibility that a court can refuse to apply the good faith exception in cases of procedural issues, for example. Even if equity seems to demand a remedy for couples with technical errors on marriage licenses, invalid authorization of marriage licenses, and insufficient satisfaction of the waiting period, the Thomas rule, if applied verbatim, would not protect such couples. To adequately apply the good faith exception in these cases, the South Carolina Supreme Court must broaden the doctrine to apply in cases of all impediments, including those of a procedural nature.
Moreover, the court should not require removal of the impediment to ratify an otherwise void marriage because, in cases of procedural defect, the impediment often cannot be removed. For instance, when a party lacking the requisite statutory authority, such as a Buddhist priest, attempts to validate a couple’s marriage, yet the couple does not realize this invalidity, it is unlikely the couple will discover the impediment until a divorce or some other tragedy. Once again, applying the rule verbatim in this instance would not protect such individuals because, by its very nature, a marriage formed by the good faith exception requires removal of a marital obstacle and continued cohabitation thereafter. Because couples generally will not discover procedural impediments until it is too late, a more comprehensive and inclusive rule is needed whereby good faith belief in the validity of a marriage—despite the presence of an impediment—can ratify the marriage upon continuous marital cohabitation.
Another area in which South Carolina case law requires further development involves the definitional standard of good faith. Assuming South Carolina will apply the definition of good faith that other states have used, the courts will encounter a directional challenge of whether the analysis of good faith encompasses purely subjective considerations or both objective and subjective considerations. A purely subjective approach determines whether the proponent of the marriage indeed had a belief in the validity of the marriage, considering the specific facts of the case. On the contrary, an objective-subjective approach considers whether a reasonable person in the proponent’s shoes would believe a valid marriage existed. When considering the approaches for determining good faith, a purely subjective approach not only would be difficult for an opposing spouse to disprove but also would result in a larger volume of marriages due to one-sided claims of marriage validity. To ensure that such marriages are obtained in only the most equitable circumstances, the objective-subjective approach is better suited for South Carolina. Under this approach, the court can consider the totality of the circumstances, including the proponent’s knowledge, intelligence, education, and age while also remaining grounded in the standard of a reasonable person. This ensures a fair consideration of the proponent’s belief while also balancing societal perceptions of marriage validity. Regardless of any decision in this capacity, it is undeniable the good faith exception will require supplementary development to be a fully functioning, autonomous doctrine.
Another potential solution for equity in the case of procedural defect is the putative spouse doctrine. According to the Uniform Marriage and Divorce Act, a putative spouse is “[a]ny person who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person.” To qualify for protection under the putative spouse doctrine, putative spouses cannot have any awareness of the invalid status of their marriage. Once an individual qualifies as a putative spouse, the doctrine allows the party to enjoy the benefits of a valid marriage despite effective invalidity. Upon discovery of the invalid nature of the marriage, however, the protection of the putative spouse doctrine ceases to exist, and a couple must comply with the statutory requirements of marriage to enjoy marital benefits thereafter.
There are two general elements required for putative spouse doctrine to apply: “(1) a proper ceremony [must have been] performed, and (2) one or both parties [must have had] a good-faith belief that there was no impediment to the marriage and the marriage was valid and proper.” Establishing the first element is fairly straightforward. The second element, however, is often disputed. State courts applying this doctrine have defined good faith as an “honest and reasonable belief that the marriage was valid at the time of the ceremony.” While some states measure reasonable belief using both objective and subjective considerations, other states measure reasonable belief subjectively, considering only the individual’s state of mind relative to the circumstances. When the couple held a wedding ceremony, courts presume good faith such that any party asserting lack of good faith has the burden of proving bad faith. To rebut this presumption, asserting parties must show that their partner had reliable information demonstrating the invalid nature of the marriage yet failed to fulfill the duty to investigate with reasonable precaution. Regarding the reliability of information, “unconfirmed rumors or mere suspicions of a legal impediment do not vitiate good faith, ‘so long as no certain or authoritative knowledge of some legal impediment comes to [the claiming party].’”
Ultimately, the primary purpose of the putative spouse doctrine is to “avoid depriving innocent parties who believe in good faith that they are married from being denied the economic and status-related benefits of marriage, such as property division, pension, and health benefits.” Although aspects of the putative spouse doctrine resemble common law marriage, the doctrines are mutually exclusive and rather dissimilar in application. Unlike the doctrine of common law marriage, an element of the putative spouse doctrine requires that “the parties . . . actually attempted to enter into a formal [and statutorily-based] relationship with the solemnization of a marriage ceremony.” Even if a state has abolished common law marriage out of concern for the inviolability of formal marriage, subsequent adoption of the putative spouse doctrine does not undercut such a decision. Rather, “[a]s a majority of [the adopting] states have recognized, the sanctity of marriage is not undermined, but rather enhanced, by the recognition of the putative spouse doctrine.”
Although the South Carolina Supreme Court has expressly “declined to adopt the putative spouse doctrine ‘as it is contrary to South Carolina’s statutory law and marital jurisprudence,’” other states have adopted—both legislatively and judicially—the doctrine or an analogue thereof in the wake of common law marriage abolishment. Since other states have adopted the putative spouse doctrine as a solution for the inequities following a common law marriage abolishment, the doctrine is ripe for revisiting after Stone. Due to the pragmatics of the good faith exception, however, its recognition is an enhanced alternative compared to the putative spouse doctrine for two primary reasons. First, unlike the putative spouse doctrine, the good faith exception does not terminate upon discovery of an impediment, and second, the good faith exception does not expressly require a ceremony. Thus, despite the court’s aversion for the putative spouse doctrine, the good faith exception, although underdeveloped, will inevitably provide a superior remedy for South Carolina couples.
The landmark case of Marvin v. Marvin brought copious attention to the California Supreme Court due to its novel creation of an independent remedy for the cohabitants who did not enter into an express contract. Specifically, the court noted that the parties’ conduct “demonstrate[d] an implied contract or implied agreement of partnership or joint venture, or some other tacit understanding between the parties.” Scholars later acknowledged this remedy as “palimony,” upon which “the formation of a marital-type relationship between unmarried persons may, legitimately and enforceably, rest upon a promise by one to support the other.” According to palimony cases, consideration in the implied contract is simply participation in a unique cohabitating relationship—each party forms an informal union of cohabitation that demonstrates the parties’ intent to share in collective financial efforts, property, and assets.
Palimony is distinctive in that, unlike the putative spouse doctrine and the good faith exception, a court does not require intent to be married at any point. Rather, the parties can intend merely to be cohabitants whereby the nature of their relationship suggests a joint, quasi-marital effort that does not “rest upon illicit meretricious consideration.” In Marvin, the couple in fact had an express agreement. However, recognizing the inequities that would arise from identical circumstances where a couple did not have an express contract, the California Supreme Court decided to create an independent recovery doctrine. The Marvin court’s primary policy consideration was that “adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights.” Although an undoubtedly unique benefit to cohabiting couples, the adoption of palimony as an independent remedy is rare. In fact, since Marvin, one state has adopted palimony as a common law doctrine, only to be later overturned by its legislature.
South Carolina has never awarded palimony to a cohabitating couple, so the determination remains open in the wake of the abolishment of common law marriage. However, due to South Carolina’s general aversion to adopting a rarely implemented doctrine, the state will likely not adopt the remedy of palimony. In South Carolina, the only comparatively relevant case to Marvin is the 1941 case of Grant v. Butt. In Grant, the South Carolina Supreme Court declined to enforce a cohabitation agreement where an unmarried woman agreed to cohabitate with an unmarried man in exchange for his making her a beneficiary of his life insurance policy. Although Grant does provide a rough guide approximating South Carolina’s judicial reaction to cases of implied contracts for palimony, the era in which Grant was decided lends much credence to the argument that gender influences, meretricious consideration, and a general revulsion against cohabitation were primary concerns of the court.
There is a prominent benefit to the recognition of palimony as compared to the good faith exception, however. Whereas the good faith exception protects otherwise invalid marriages, the remedy of palimony acknowledges that cohabitation is not inherently marital and offers a completely neutral remedy independent of marriage. Because the Stone court expressed its primary concern for the uniformity and predictability of marriage itself, the court may be less reluctant to adopt a remedy of palimony because it recognizes that cohabitation and marriage are mutually exclusive and not synonymous.
Rather than being fixated on the existence of marriage, palimony is concerned with equity. Determining the equitable solution in a case of cohabitation is far less complex than untangling intent in a case of possible common law marriage. If the South Carolina Supreme Court decided to adopt palimony, a trial court would dedicate its analysis simply to ascertaining whether two individuals cohabitated in such a manner that terminating their relationship would create turmoil. If so, palimony may be appropriate, and if not, palimony is not appropriate. Nonetheless, if faced with the rare recognition of palimony as compared to the already-recognized good faith exception, South Carolina will likely reject the former in preference for the latter.
The South Carolina Supreme Court’s decision in Stone v. Thompson will inevitably mark South Carolina history as one of the most revolutionary departures from this state’s long-standing doctrine of common law marriage. The considerations of paternalistic underpinnings, albeit valid, are highly overstated in the court’s opinion. Although originally developed solely as a remedy for dependent women, the purpose of common law marriage has shifted. No longer is the benefit of this type of marriage solely conditioned on the dependency of a woman. Rather, under the modern doctrine of common law marriage, both men and women equally obtain marital benefits in cases of divorce or tragedy where it may be too late to obtain a formal marriage.
As it stands, our country, particularly in its southern states where informality often constitutes normative social mores, is at a crossroad in determining marital rights, freedoms, and responsibilities. There is no doubt the past decade has ushered in radical deviations from historical perceptions of marriage. Within this modern trend is an acceptance of the implied freedom to conduct private, intimate relationships in forums with equal recognition, regardless of race, sex, religious belief, or formality. Masked in the traditional notions of marriage formality, the punitive effects of Stone signify a vast deviation from the current trend—one that is not only unwarranted but also unjust.
Despite a conceded salutation to the legislature’s power over the doctrine, the Stone court expressly denied legislative authority and single-handedly overhauled arguably the most profound common law institution in South Carolina. In order to effectuate an optimal result for those currently faced with an indeterminate defense against the abolishment of common law marriage, the South Carolina Supreme Court should expressly adopt and necessarily expound upon the good faith exception of Thomas v. 5 Star Transportation. Notwithstanding the court’s approach to a self-identified regulatory power, the demands of justice, equity, and integrity will eventually mandate a responsive exception to the harsh implications of Stone.