Finding that the relationship had run its course, the South Carolina Supreme Court abolished common-law marriage in the state as of July 25. 

“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 Kaye G. Hearn wrote for the unanimous court. “Accordingly, we believe the time has come to join the overwhelming national trend and abolish it.”

The decision is purely forward-looking and does not undo any common-law marriages that have already been entered into. As a result, the court also redefined the standard of evidence courts must apply in future common-law marriage litigation, establishing a heightened burden of proof and the requirement that both parties mutually intended to be married to one another.

As for the couple in the case before the court – A. Marion Stone III and Susan B. Thompson – the court determined that they were not common-law married, reversing the family court’s decision.

Thompson and Stone met in the early 1980s and began a romantic relationship soon after. They had their first child in 1987 (after Thompson obtained a divorce), moved in together in 1989 and had a second child. They lived together, raised their children and managed rental properties together for almost 20 years before Thompson discovered Stone was having an affair with a woman in Costa Rica.

Stone sought a declaratory judgment in 2012 that the parties were common-law married, a divorce and an equitable distribution of the alleged marital property. After a week-long trial (that included testimony from over 40 witnesses and nearly 200 exhibits), the family court sided with Stone.

But the Supreme Court reversed. While Stone testified that Thompson introduced him as her husband to a third party at an art opening around Christmas 1989, Thompson stated this did not occur and Stone provided no other evidence about the statement. For the subsequent 15 years, no evidence demonstrated a mutual intent by the parties to be married, the court said.

While a handful of documents existed between 1989-2004 where Thompson indicated she was married, many more reflected that she was not. From 2005 to 2008, Thompson indicated she was married to Stone on some documents, the court noted, but Thompson continued to file taxes as single and Stone held himself out as single in Costa Rica. Thompson testified the documents they signed as married were because banks were more closely scrutinizing mortgage loans. 

“It is clear the parties intended to be in a committed relationship and business partnership together, but their conduct in living together, raising children, and running the business does not demonstrate they each intended to be married and knew the other intended the same,” Hearn wrote. 

Changing times, changing practices

Tracing the institution of marriage to Europe prior to the Reformation, the court explained that common-law marriage in South Carolina rests upon “moral paternalism,” with an aim to legitimize children and adjust property rights between the parties. 

The prevailing modern trend has been repudiation of the doctrine for reasons ranging from economic to social. Fewer than 10 jurisdictions still recognize common-law marriage, Hearn noted.

“The common law changes when necessary to serve the needs of the people,” Hearn wrote. “The paternalistic motivations underlying common-law marriage no longer outweigh the offenses to public policy the doctrine engenders. By and large, society no longer conditions acceptance upon marital status or legitimacy of children.”

Emblematic of the shift: the case of Stone and Thompson, where their community of friends were “wholly unconcerned” with their marital status and several of their witnesses were in similar relationships, the court said.

 “Meanwhile, courts struggle mightily to determine if and when parties expressed the requisite intent to be married, which is entirely understandable given its subjective and circumstantial nature,” Hearn said. “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.”

 The abolition of common-law marriage also recognized the fundamental constitutional right to marry, the court said.

“Our public policy is to promote predictable, just outcomes for all parties involved in these disputes, as well as to emphasize the sanctity of marital union,” the court wrote. “We can discern no more efficacious way to fulfill these interests than to require those who wish to be married in our State to comply with our statutory requirements. 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.”

Looking forward

The court declined to apply its ruling retroactively, which would have foreclosed relief to individuals relying on the common-law marriage doctrine.

However, the court did adjust the standard to be applied in future cases involving common-law marriage, expressing reticence to impose a marital relationship on a party that did not fully intend to enter it. The “clear and convincing” evidence standard adopted by the court requires more than a preponderance, but less than a reasonable doubt. In addition, a party must demonstrate that he and his partner mutually intended to be married to one another, Hearn said. 

“In the cases litigated hereafter, a party asserting a common-law marriage is required to demonstrate mutual assent to be married by clear and convincing evidence,” the court wrote. “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.” 

Family law practitioner Greg Forman of Charleston was “pleasantly surprised” by the decision to abolish common-law marriage in the state. He regularly receives calls and emails about the issue and suspects it will remain a part of his practice due to couples that currently consider themselves common-law married.

Anderson attorney Nancy Jo Thomason, chair-elect of the Family Law Section of the South Carolina Bar Association, said she appreciated the clarity provided by the decision but noted that it could lead to future complications for parties post-July 24.

“The opinion is a cautionary tale: people no longer have this vehicle to go to one courtroom and tidy everything up in one nice package,” she said. “Instead, they have the potential to end up in three different courts,” if they need to sort out custody, real estate and other property (furniture, for example) disputes, she explained.

An “equally vital part” of the decision was the court’s increase of the burden of proof in the remaining common-law marriage cases, Forman added. “People should not ever be found to have accidentally contracted marriage,” he said. “Hopefully by having a clear and convincing evidence standard, that problem will be lessened.”

Thomason agreed. “If a client comes in and gives me a set of facts about a relationship, I can give them a better answer about what the court is going to look for if they are trying to prove common law marriage,” she said.

Donald Bruce Clark of Charleston, who represented Thompson, did not respond to a request for comment; neither did Charleston attorney Alexander Blair Cash, who represented Stone.

The 13-page decision is Stone v. Thompson (Lawyers Weekly No. 010-053-19). The full text of the opinion is available online at sclawyersweekly.com.



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