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Stone v. Thompson

Supreme Court of South Carolina

July 24, 2019

A. Marion Stone, III, Respondent,
Susan B. Thompson, Petitioner. Appellate Case No. 2017-000227

          Heard June 13, 2019

          Appeal from Charleston County Jocelyn B. Cate, Family Court Judge.


          Donald Bruce Clark, of Donald B. Clark, LLC, of Charleston, for Petitioner.

          Alexander Blair Cash and Daniel Francis Blanchard, III, both of Rosen Rosen & Hagood, LLC, of Charleston, for Respondent.

          HEARN JUSTICE.

         This 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.

         Our 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.

         Nevertheless, 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.[1]


         a. Historical Common-law Marriage

         The 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).

         South 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).

         b. The Modern Trend

         The 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 institution.[2]

         In 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).[3] 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.

         c. Modern South Carolina

         The 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, ...

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