COLUMBIA — The South Carolina Supreme Court ruled Wednesday that common law marriage — the legal framework that has allowed longtime couples to be considered married even without a license — will no longer be recognized in the state.
The decision means South Carolina joins the vast majority of states that have already done away with the practice.
In a unanimous opinion, Justice Kaye Hearn said the ruling applies prospectively to future couples, not to those already considered married under the law.
"We have concluded the institution's foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted," Hearn wrote.
"Accordingly, we believe the time has come to join the overwhelming national trend and abolish it," she concluded.
The court's decision came as part of a ruling in a specific common law marriage case involving a Charleston couple who separated over an affair.
The man claimed in a Family Court procedure the couple were common-law married and pursued a divorce for equal distribution of their collective assets. The woman testified she never intended to be considered married to him.
A judge initially concluded the couple was common-law married beginning in 1989 when they started living together. The Supreme Court overturned that decision, saying there was not enough evidence to prove mutual intent to be married.
Hearn said the case was emblematic of the shift in the role of marriage for acceptance in society, given that many of the couple's friends were "wholly unconcerned with their marital status." She said courts have struggled to determine if and when two people expressed their agreed upon intent to be considered 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," Hearn wrote.
Stephen Futeral, a family lawyer in the Charleston area, said he thinks the court's decision is "a step in the absolute right direction" given that most other states no longer recognize common law marriage. Family Court judges were often inconsistent in their interpretation of evidence, he added.
But he warned that couples will now have to be aware they may not be entitled to an equitable division of property if they break up unless they are legally married.
"Hopefully the general public will educate themselves and know that if you're going to get into a long-term relationship with someone where you're raising a family or you're co-mingling your finances and your financial future together, you probably should consider doing it officially rather than on a wing and a prayer that things are going to turn out OK," Futeral said.
The state Legislature has considered banning common law marriage several times but the measure was held up by senators from rural counties where the practice is more common.
State Rep. Bruce Bannister, a Greenville Republican and family lawyer, said he would have liked the General Assembly to have taken action but noted that courts established common law, and the Legislature never affirmatively added it to the state's code of laws.
"So I think (the court's) action on it is not inappropriate, and being in favor of having common law marriage done away with, I'm glad that it's gone now," Bannister said.