Posted on Wed, Apr. 12, 2006

email this

print this

reprint or license this

S.C. bill poised to cut ties that bind

Measure advancing in Legislature would make common-law marriage illegal by 2008

By RODDIE BURRIS

rburris@thestate.com

Common-law marriage, a centuries-old tradition that allows couples to become man and wife through their intent, rather than by a state-issued license or a vow before God, may soon go the way of covered wagons.

A House-passed bill advancing in the S.C. Senate would end common-law marriage in the state effective Jan. 1, 2008.

The bill, which gained Judiciary Committee approval Tuesday, gives couples until the end of 2007 to get a marriage license — without the usual $40 charge — and be recognized as man and wife.

The move comes amid growing concern that individuals left after a partner dies can have difficulty securing property and other assets. It also comes as the Legislature is showing an increased appetite for wading into laws that involve sticky domestic issues and cultural practices, such as defining adultery and rules for alimony payments.

“Significant others often find that they can’t influence or enjoy any of the fruits of the labor of their loved ones,” after a death or other type separation, said Rep. Seth Whipper, D-Charleston, the lead sponsor of the House bill.

“We’ve been trying to get a common-law marriage bill passed for some years now. This Legislature, so far, has shown a willingness to step into these type issues.”

A common-law marriage is established in South Carolina if a man and woman intend for others to believe they are married. A judge must declare a couple so married for it to be legally recognized.

Still, dozens of commonly held myths exist, including the falsehood that if a couple lives together for seven years, they automatically are married under common law.

It is unclear how many people live in South Carolina as common-law couples. No records of such unions are kept.

The S.C. Office of Research and Statistics said that during the period from 2000 to 2003, an average of 4.1 percent of South Carolina households were comprised of unmarried couples. But not all of those couples would meet the standard for common-law marriage.

Not everyone agrees common-law marriage should be ended. While 15 members of the Senate Judiciary Committee supported advancing the measure, four opposed it. Concerns center on the absolute, sweeping nature of the change.

Whipper, an attorney who has represented clients on both sides of the issue, said some residents don’t feel it is the Legislature’s business to intervene.

But most states have abolished the practice of contracting new common-law marriages. California, for instance, abandoned the practice in 1890.

IT MADE SENSE ONCE

South Carolina is one of only nine states, plus the District of Columbia, that establishes common-law marriages, a practice rooted in English common law and transferred to the New World colonies in the early 15th Century.

At that time, it made sense, said Roy Stuckey, a family law professor at the USC School of Law. It doesn’t anymore, he said.

When America was being settled, there were few ministers or justices of the peace going about to perform marriages. In addition, courthouses and county seats could be long distances away, and travel was difficult, he said.

Common-law marriage was recognized as a means of allowing committed men and women to live in “legitimate” unions that otherwise would not have been available to them, Stuckey said.

Critics, like Stuckey, say the practice is archaic, that it wars against marriage as a viable institution, and it clogs court systems and costs the state valuable resources.

But Lexington County homemaker Pamela Dawkins was flabbergasted when she heard lawmakers are trying to do away with common-law marriage.

“When you sign your name to that piece of paper, (the marriage license), what you’re really saying is you own that other person,” Dawkins said.

“You’re ending a partnership and entering ownership, which can be (used as an advantage) on the part of either party, the man or the woman.”

Dawkins, who considers herself common-law married to Richard Dawkins, her “spouse” of 18 years, said they have seen too many friends live together fine for many years, then get married and shortly thereafter, divorce.

Richard agrees.

“How many times have you shown anyone your marriage license?” he asked. “When you think about it, everyone takes you at your word when you say this is my husband or my wife.”

Pamela Dawkins said they have everything on paper (except a marriage license), including insurance benefactors, mortgages, and wills. Most common-law couples don’t, legal experts say.

They say opposite-sex couples who only think of themselves as married, but never “made it official,” potentially have much to gain — or lose — if the proposal becomes law.

NOT AUTOMATIC

If the bill is passed and Gov. Mark Sanford signs it, couples could utilize the yearlong grace period to get married or to go before a court to distinguish whether a marriage actually exists in cases where one party or the other objects.

Any relationship prior to Dec. 31, 2007 that is proved to be a marriage under common law standards would still have legal standing.

Lawyers and others say, contrary to folklore, street gossip, and old wives’ tales, a common-law marriage exists in South Carolina only after a judge rules it to be so.

If a judge has to decide, he or she may look into such factors as whether the couple referred to each other as “my husband” or “my wife,” or whether the female assumed the male’s surname. Judges also can consider whether the couple filed joint tax returns, held joint banks accounts or shared insurance.

Whipper said he’s seen common-law marriage disputes involving property settlements last for up to six years, and in the end, only the lawyers won.

“I hear people (casually) say, ‘I’m common-law married,’ and I say to them, ‘Whoa — that’s got some consequences,’” said Tom Neal, a Columbia family law attorney. Almost always in such instances, Neal said, the speaker isn’t aware their words could establish legal standing.

Another problem with common-law marriage, critics say, is there is no such thing as common-law divorce.

While states that do not provide for common-law marriage within their borders still recognize such marriages created in other states, all states only recognize court-ordered divorces.

Reach Burris at (803) 771-8398.