A. Marion Stone, III, Respondent,
Susan B. Thompson, Petitioner. Appellate Case No. 2017-000227
June 13, 2019
from Charleston County Jocelyn B. Cate, Family Court Judge.
OF CERTIORARI TO THE COURT OF APPEALS
Bruce Clark, of Donald B. Clark, LLC, of Charleston, for
Alexander Blair Cash and Daniel Francis Blanchard, III, both
of Rosen Rosen & Hagood, LLC, of Charleston, for
case initially came to the Court to consider whether an order
from a bifurcated hearing determining the existence of a
common-law marriage was immediately appealable. In Stone
v. Thompson, 426 S.C. 291, 826 S.E.2d 868 (2019), we
held it was and retained jurisdiction to consider the merits.
We must now determine whether the family court was correct in
finding Susan Thompson and Marion Stone were common-law
married in 1989, as well as whether Stone was entitled to an
award of attorney's fees.
review in this case has prompted us to take stock of
common-law marriage as a whole in South Carolina. We have
concluded the institution's foundations have eroded with
the passage of time, and the outcomes it produces are
unpredictable and often convoluted. Accordingly, we believe
the time has come to join the overwhelming national trend and
abolish it. Therefore, from this date forward-that is, purely
prospectively-parties may no longer enter into a valid
marriage in South Carolina without a license. Consistent with
our findings regarding the modern applicability of common-law
marriage rationales, we also take this opportunity to refine
the test courts are to employ henceforth.
the case before us remains. We do not believe Stone
demonstrated the mutual assent required to prove a common-law
marriage, and as a result, we hold the parties were not
married and reverse the family court on the merits and as to
the issue of attorney's fees.
Historical Common-law Marriage
institution of common-law marriage traces its roots to
informal marriage in Europe prior to the Reformation. Cynthia
Grant Bowman, A Feminist Proposal to Bring Back
Common Law Marriage, 75 Or. L. Rev. 709, 718 (1996);
see also Ashley Hedgecock, Comment, Untying The
Knot: The Propriety of South Carolina's Recognition of
Common Law Marriage, 58 S.C. L. Rev. 555, 559-62 (2007).
England recognized such unions during colonization, and as a
result, common-law marriage migrated to the New World.
Bowman, supra, at 719. Some states proceeded to
adopt the doctrine, while others did not. Id. at
719-22. A primary reason for those that did was
logistical-frontier America was sparsely populated and
difficult to travel, making access to officials or ministers
impractical for many. Id. at 722-24. States also
sought to legitimize "subversive" relationships and
the children thereof, as well as to direct women to the
family for financial support instead of the public fisc.
Hedgecock, supra, at 560; see also Ariela
R. Dubler, Wifely Behavior: A Legal History of Acting
Married, 100 Colum. L. Rev. 957, 968-69 (2000).
Carolina followed New York's approach in adopting
common-law marriage, holding it was a matter of civil
contract that did not require ceremony; rather, two people
were married when they agreed and intended to be. Fryer
v. Fryer, 9 S.C. Eq. (Rich. Cas.) 85, 92 (1832);
Fenton v. Reed, 4 Johns. 52 (N.Y. Sup. Ct. 1809). As
Justice Littlejohn explained in 1970, the institution sought
to "legitimatize innocent children and adjust property
rights between the parties who treated each other the same as
husband and wife." Jeanes v. Jeanes, 255 S.C.
161, 168-69, 177 S.E.2d 537, 540-41 (1970) (Littlejohn, J.
concurring). Common-law marriage in South Carolina rests upon
moral paternalism, as our courts have long recognized.
Id. at 166-67, 177 S.E.2d at 539 ("The law
presumes morality, and not immorality; marriage, and not
concubinage; legitimacy, and not bastardy." (quotation
omitted)). While our legislature has not expressly codified
common-law marriage, it has recognized the institution by
exception to the general requirement to obtain a marriage
license. S.C. Code Ann. § 20-1-360 (2014).
The Modern Trend
prevailing trend, however, has been repudiation of the
doctrine. The reasons have been myriad-from economic to
social-including some more nefarious than others. Bowman,
supra, at 731-49. Alabama became the most recent
state to do so, enacting Ala. Code 1975 § 30-1-20 in
2016. See Blalock v. Sutphin, ___ So.3d ___, 2018 WL
5306884 at *5 (Ala. 2018). By our count, this leaves fewer
than ten jurisdictions that currently recognize the
2003, the Pennsylvania Commonwealth Court set forth a
thorough explanation for its conclusion that common-law
marriage should no longer be recognized in PNC Bank Corp.
v. W.C.A.B. (Stamos), 831 A.2d 1269 (Pa. Commw. Ct.
2003). Notably, the court determined:
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.
831 A.2d at 1279 (internal citations omitted). The court also
pointed to benefits of standardized formal marriage
requirements such as predictability, judicial economy, and
upholding the statutes' "salutary" purposes.
Id. at 1279-81.
Modern South Carolina
common law changes when necessary to serve the needs of the
people. Russo v. Sutton, 310 S.C. 200, 204, 422
S.E.2d 750, 753 (1992). We will act when it has become
apparent that the public policy of the State is offended by
outdated rules of law. Id. (abolishing the
"heart balm" tort of alienation of affections);
see also Nelson v. Concrete Supply Co., 303 S.C.
243, 399 S.E.2d 783 (1991) (abolishing contributory
negligence); McCall v. Batson,285 S.C. 243, 329
S.E.2d 741 (1985) (abolishing sovereign immunity). As
discussed-and perhaps intuitively-common-law marriage's
origins lie in the common law, ...