No common-law marriage for same-sex couple

State Supreme Court abolished common-law marriages last year

By Bill Cresenzo
BridgeTower Media Newswires
 
COLUMBIA, SC —  A same-sex couple that ended their relationship before the U.S. Supreme Court struck down South Carolina’s law prohibiting same-sex marriage could not have formed a common-law marriage as a matter of law, even though the ruling legalizing same-sex marriage must be applied retroactively, the South Carolina Court of Appeals has ruled.

Common-law marriages themselves have since been abolished in South Carolina, after the state’s Supreme Court ruled in July 2019 that the state’s relationship with them had run its course and the arrangement wasn’t working anymore. That ruling was strictly forward-looking and didn’t disturb any common-law marriages that had previously been created, but the latest ruling means that very few same-sex couples will be able to prove the existence of a common-law marriage in South Carolina.

Cathy Swicegood filed an action in March 2014 seeking an order recognizing the existence of a common-law marriage with Polly Thompson, equitable division of marital property, and other relief.
Swicegood alleged that she and Thompson cohabited as sole domestic partners for over thirteen years until December 2013, agreed to be married, and held themselves out publicly as a married couple.

Thompson moved to dismiss, arguing that the parties lacked the capacity to marry because South Carolina had had forbidden same-sex marriage for the entirety of their relationship. A Greenville County Family Court judge agreed, and in a unanimous July 1 opinion, the Court of Appeals agreed.

Chief Judge James Lockemy, writing for the court, said that, as a rule, U.S. Supreme Court decisions are applied retroactively, and so its 2015 decision in Obergefell v. Hodges striking down all state laws prohibiting same-sex marriage must be applied retroactively as well. Some states have concluded that same-sex, common-law marriages can thus be formed retroactively, too. But the retroactive application of Obergefell didn’t require the state courts “to ignore the fact the law operated as an impediment to the formation of a common-law marriage between same-sex couples when it was still in force.”

The since-overturned state laws prohibiting same-sex marriage constituted an impediment to the formation of a common-law marriage until the impediment was removed, and provided an independent legal basis for the family court to dismiss the case, notwithstanding the retroactive application of Obergefell, Lockemy wrote. As with any impediment to marriage, couples are required to enter into a new agreement to be married after the removal of that impediment in order to create a common-law marriage.

“Because they acknowledge their awareness that the law prevented them from marrying in this state during their relationship, we find Swicegood and Thompson could not have formed the intent and mutual agreement to enter a legally binding marital relationship,” Lockemy wrote.

Lockemy noted that a federal district court judge struck down South Carolina’s same-sex marriage law in November 2014, but the parties didn’t raise the issue in appeal since they agreed that their relationship had ended before that ruling. Lockemy said that the November 2014 date was the earliest date on which the removal of the impediment could have occurred.

Margaret Chamberlain of Greenville represented Thompson. She said common law marriage law in South Carolina has always hinged on the intent that couples eventually would get married.

“The bar against same sex marriage, which both parties admitted they were fully aware of, would prohibit them or render them unable to inform the necessary intent to be married,” Chamberlain said.
“How can I do that which is impossible?”

Chamberlain said that Thompson’s attorney, John Reckenbeil of Mauldin, has filed a petition for a rehearing. Reckenbeil could not be reached for comment.