In 1832, South Carolina adopted common-law marriage by way of a court decision, holding the union was a matter of civil contract that didn't require a ceremony. Rather, two people were married when they agreed and intended to be. The legislature has made numerous attempts to change the common law without success. Finally, the South Carolina Supreme Court recently changed it. Read on to see how the court analyzed the issue.

Historical background

The institution of common-law marriage traces its roots to informal marriage in Europe before the Reformation. England recognized such unions during colonization, and as a result, the doctrine migrated to the New World.

Some states proceeded to adopt common-law marriage while others did not. A primary reason in favor of adoption was logistical—frontier America was sparsely populated and difficult to travel, making access to officials or ministers impractical for many people. States also sought to legitimize "subversive" relationships (and the children thereof) and direct women to the family (instead of the public) for financial support.

With the court ruling in 1832, South Carolina sought to legitimatize the innocent children and adjust property rights between the parties who were treating each other the same as husband and wife. One of the underlying premises supporting common-law marriage in the state was the idea that the law presumes morality (not immorality), marriage (not concubinage), and legitimacy (not bastardy). While the legislature never actually
codified common-law marriage, it recognized the institution by exception to the general requirement for couples to obtain a marriage license.

More recently, the prevailing trend has been to repudiate common-law marriage. The reasons have been myriad—from economic to social. When the supreme court issued the recent decision, fewer than 10 jurisdictions continued to recognize the doctrine.

Court’s analysis of society’s changes

Pointing to a thorough analysis in a related Pennsylvania case decision, the South Carolina court explained:

The circumstances creating a need for the doctrine are not present in today's society. 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. Similarly, the marital status of parents no longer determines the inheritance rights of their children. Access to both civil and religious authorities for a ceremonial marriage is readily available in even the most rural areas of the Commonwealth. The cost is minimal, and the process simple and relatively expedient.

Since the court was overturning precedent, it noted the common law will change whenever necessary to serve the people’s needs. The court said it will act when it becomes apparent the state’s public policy is “offended by outdated rules of law.” Since common-law marriage's origins lie in the common law, it may be removed by common-law mandate, regardless of tacit recognition by the legislature.

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 the legitimacy of children. Critically, nonmarital cohabitation is exceedingly common and continues to increase among Americans of all age groups. The right to marry is a fundamental constitutional right, which led the court to believe the right to remain unmarried is equally weighty, particularly when combined with its admonitions that a person cannot enter into such a union accidentally or unwittingly.

The court also noted the state’s public policy is to promote predictable, just outcomes for all parties involved in disputes as well as to emphasize the marital union’s sanctity. It could discern no more efficacious way to fulfill the interests than to require those who wish to be married in South Carolina to comply with the state’s statutory requirements. The court found its 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.

In its announcement, the court followed the majority of jurisdictions that have abolished common-law marriage and indicated the new standard applies only prospectively. No individual may enter into a common-law marriage in South Carolina after July 24, 2019.

The court also took the opportunity to refine what was necessary to satisfy a common-law marriage. It was formed when the parties contract to be married, either expressly or impliedly by circumstance. The key element is mutual assent: Each party must intend to be married to the other and understand the other's intent. Some factors to which the courts have looked to discern their intent include:

• Tax returns;
• Documents filed under penalty of perjury;
• Introductions in public;
• Contracts; and
• Checking accounts.

The court ruled the "clear and convincing evidence" standard also should apply to common-law marriage claims. That is an intermediate standard—more than a preponderance, but less than beyond a reasonable doubt. It requires a party to show a degree of proof sufficient to produce a firm belief in the allegations of common-law marriage that are sought to be established.

To sum up, in cases litigated after July 24, 2019, a party asserting a common-law marriage will be required to show mutual assent to be married by clear and convincing evidence. Courts may continue to weigh the same circumstantial factors they have traditionally considered, but they may not indulge in presumptions based on cohabitation, no matter how apparently matrimonial.

Lessons for employers

The court’s decision will likely have more of a long-term than short-term impact. If you have employees who are in common-law marriages, you should continue to treat them as you have always done.

The issue will get more challenging when the next employee says he is “common-law married,” which can happen when a spousal benefit issue arises or enrollment takes place. As mentioned above, you should take a hard look at tax returns, documents filed under penalty of perjury, introductions in public, contracts, and checking accounts. You may want to consider having both parties sign a new affidavit, under penalty of perjury, that the common-law marriage existed before July 24, 2019. In the future, just telling you they are husband and wife will not be enough.