Same-sex couple couldn’t form common-law marriage  



A same-sex couple that ended their relationship before the U.S. Supreme Court struck down South Carolina’s law prohibiting same-sex marriage lacked the requisite intent and mutual agreement to enter a legally binding common law marriage, the South Carolina Supreme Court has ruled, affirming the result of a 2020 decision by the state’s Court of Appeals on slightly different grounds. 

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 2020 the Court of Appeals affirmed. 

Swicegood petitioned for the Supreme Court to review the decision. In a two-page per curiam opinion handed down on Nov. 10, the Supreme Court granted the petition, dispensed with further briefing, vacated the decision in part, and affirmed the decision in its result. 

The Court of Appeals had based its decision on its findings that the now-obviated state law prohibiting same-sex marriage had operated as an impediment to the formation of a common law marriage between same sex couples, and that Swicegood and Thompson had lacked the requisite intent and mutual agreement to enter a legally binding common law marriage as a matter of law. 

Although the Court of Appeals recognized that Obergefell v. Hodges, a 2015 U.S. Supreme Court decision striking down all state laws prohibiting same-sex marriage, must be applied retroactively, it nevertheless held that the state statute constituted “a pre-existing, separate, independent rule of state law, having nothing to do with retroactivity,” which formed an “independent legal basis” for its finding. 

The Supreme Court disagreed with, and vacated, the portion of the court’s ruling holding that the statute constituted an impediment, but it affirmed the ultimate result reached by the appeals court that no common law marriage was established. 

“In [Obergefell], the Supreme Court held ‘same sex couples may exercise the fundamental right to marry,’ and all state laws challenged in that case were ‘invalid to the extent they exclude same sex couples from civil marriage on the same terms and conditions as opposite sex couples,’” the court’s opinion reads. “Our state’s restriction on same sex marriage … was rendered void ab initio by Obergefell and, therefore, must be treated as though it never existed … Accordingly, the statute cannot serve as an impediment to the recognition of a same sex marriage predating Obergefell.” 

Margaret Chamberlain of Greenville and Melissa Hope Moore of Fountain Inn represented Thompson. Chamberlain could not be reached for comment on the court’s decision. 

John Reckenbeil of Mauldin and Jeff Wilkes of Greenville represented Swicegood. Reckenbeil said that while the practical impact of the decision may be limited because the state has now abolished common law marriage, the Supreme Court’s decision to vacate part of the Court of Appeals’ reasoning was nevertheless important because of the constitutional principles at issue. 

Whenever we say that something is unconstitutional, we always say that it’s to be applied retroactively,” Reckenbeil said. “If this decision was based on an impediment that Ms. Thompson could not have intended to be common law married, that’s giving credence and credibility to an unconstitutional provision.” 

Reckenbeil said that Swicegood has already filed a petition for a rehearing with the Supreme Court. 

The two-page decision is Swicegood v. Thompson (Lawyers Weekly No. 010-066-21). The full text of the opinion is available online at 

Follow David Donovan on Twitter @SCLWDonovan 

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