You know how you can tell if two people are common-law married in South Carolina? Read the court decision.
No matter how certain two people are that they are or are not married under common law, there’s a good chance that they’re wrong.
That mistake doesn’t much matter as long as no one questions the relationship. Or their property ownership. Or their inheritance rights. Or their child-custody rights.
But let one party try to claim half of the house in a common-law divorce, and a judge might tell her she has no rights because her “marriage” doesn’t meet the test. Let someone try to claim ownership of the estate of the woman he had always considered his common-law wife, and a judge can decide their “marriage” never met the test. And then there’s the man who leaves his live-in girlfriend, enters into a regular, licensed marriage and dies — only to have his old girlfriend convince a judge that she’s actually the deceased’s never-divorced wife, entitled to all of his property.
What is this test that judges apply? Well, it’s not, contrary to common belief, living together for seven years. Or holding oneself out as being married. It is, according to the S.C. Supreme Court, that the couple “mutually intended to be married to one another.” Try proving that in court. Judges sometimes consider tax returns, documents filed under penalty of perjury, contracts and checking accounts. And sometimes they don’t.
If it all sounds dangerously unstable, it is; that’s the nature of common law, which just sort of comes to be accepted as law over time. That’s why it was such good news that, after years of waiting for the Legislature to take action, our state Supreme Court has finally declared the end to common-law marriage in South Carolina.
Common-law marriage came to be accepted in pre-Reformation Europe, a practical and compassionate policy at a time when women had little ability to support themselves and children born outside of marriage were treated as outcasts. As former S.C. Chief Justice Bruce Littlejohn wrote in 1970, common-law marriage sought to “legitimatize innocent children and adjust property rights between the parties who treated each other the same as husband and wife.”
But it always came with that huge downside of ambiguity. And over the centuries, as our values and our laws have changed, it has come to do more harm to individuals, still usually women, than good.
Fortunately, women no longer have to depend on a husband for survival, and we no longer judge children based on their parents’ marital status. So there’s no longer an upside to justify the deep downside of a law that does tremendous harm to people who lived their lives believing they were married only to learn, at a critical moment, that they don’t meet the test that they never even knew existed.
As Associate Justice Kaye Hearn wrote for the unanimous court: “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. 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.”