Lord Byron in Childe Harold’s Pilgrimage could provide no more happy a description than the ringing of a marriage bell. Yet, not every marriage over the years has been attended by the solemnities and festivities that typically accompany a marriage.
What Was Common-Law Marriage in South Carolina?
Marriages formed without license or ceremony are common-law marriages, and common-law marriages were chiefly associated with the English people and their descendants. As to other nations, “no marriage could be concluded without some formal ceremony . . . after the Council of Trent in all Western countries except those in the sphere of the English common law” (Sourcebook in Marriage and the Family, Marvin B. Sussman, 3d ed. 1959). Under the Canon Law prevailing in England, marriage was formed by the simple consent of the parties, even when that consent was exchanged secretly and without any ceremony, so long as the consent for marriage was accompanied by verbal affirmation of the marriage partners (The Law of Marriage and Family Relations, Sir W. N. M. Geary, 1892).
As regards the development of the law of marriage in the United States, “[t]he Colonists took out with them the Common Law of England . . . [a]nd a marriage good at Common Law will be valid although contravening such local law, unless such local law creates an express statutory nullity” (Geary, 1892). In his renowned Commentaries, Sir William Blackstone describes marriage as the “second private relation of persons,” and inherently includes marriage at common law among valid marriages, stating that “the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.”
A jury instruction from the early 1900s stated on the subject that (Brickwood’s Sackett on Instructions to Juries, Albert W. Brickwood, 1908):
the issuance of a license is not necessary to constitute a valid common-law marriage. A common-law marriage exists when the man and woman enter into an agreement to become husband and wife, and in pursuance of such agreement do live together and cohabit as husband and wife and hold each other out to the public as husband and wife. Said agreement to become husband and wife may be express or implied.
When the Florida Supreme Court addressed the subject of common-law marriage in the 1940s, the Court noted in McClish v. Rankin, “some of the states recognize a marriage without ceremony. Many of them, however, have either abolished this form of contract or have refused to countenance it in the first instance, but it is approved or tolerated in Florida. . . . We can give no logical reason although we will not attempt to abolish it by judicial fiat.”
South Carolina’s Historical Opposition to “Judicial Fiat”
Like the Supreme Court in Florida, South Carolina courts have long disapproved of changes being made to the law through “judicial fiat,” the arbitrary decree of a court (Black’s Law Dictionary, 9th ed. 2009), noting “the court could not by judicial fiat legislate a right or a duty” (Page v. Winter, 126 S.E.2d 570, 577, 240 S.C. 516, 528 (S.C. 1962)). Judicial fiat was disapproved of by South Carolina courts as being judicial action that was beyond the right of a court to decree, even when the repudiation of a common-law rule would be done because the rule appeared to be illogical, undesirable, or plainly wrong. And, even as recently as 2009, the Supreme Court of South Carolina continued to refuse to decide cases by judicial fiat, because to do so would result in judicial legislation that would be at odds with statutes enacted by the South Carolina Legislature (Harris v. Anderson County Sheriff’s Office, 673 S.E.2d 423, 426, 381 S.C. 357, 363-64 (S.C. 2009)).
Something appears to have changed at the South Carolina Supreme Court.
The 2019 Stone v. Thompson Decision
On July 24, 2019, in the case of Stone v. Thompson, the South Carolina Supreme Court issued a stunning decision (which on October 16, 2019, the Court declined to reexamine), prospectively abolishing common-law marriage throughout the state of South Carolina. Perhaps more stunning an aspect of the Court’s decision than the abolition of common-law marriage, if possible, was that the Court also abolished its prior refusal to decide cases by judicial fiat. As part of the Court’s justification in the Stone v. Thompson case for abolishing the recognition of common-law marriage, the Court stated that the “common law changes when necessary to serve the needs of the people. . . . [and] when it has become apparent that the public policy of the State is offended by outdated rules of law. . . . [those outdated rules] may be removed by common-law mandate [of the courts], regardless of tacit recognition by our legislature.”
The new consensus at the South Carolina Supreme Court embraces “judicial legislation,” which was previously described by the South Carolina Supreme Court as an impermissible “flaunting of the law as written by the Legislature” (Tedars v. Savannah River Veneer Co., 30 S.E.2d 235, 238, 202 S.C. 363, 371 (S.C. 1943)). In adopting this decisional change to now embrace judicial action that rewrites the common law, the Court appears to give no weight to its prior holdings that pronounced previously well-accepted explanations, such as the following, of the importance of maintaining a separation of powers (South Carolina Public Interest Foundation v. South Carolina Transp. Infrastructure Bank, 744 S.E.2d 521, 525-26, 403 S.C. 640, 649 (S.C. 2013)):
The preservation of a separation of powers has been a basic tenet of democratic societies at least since Baron de Montesquieu warned that “[t]here would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” Consistent with this notion, the South Carolina Constitution requires the branches of government be “forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.”
Why Did South Carolina Abolish Common-Law Marriage?
Two factors appear to have undergirded the South Carolina Supreme Court’s decision to abolish common-law marriage in the state. One was that, as Ashley Hedgecock noted in 2007, “South Carolina [was] among a dwindling minority of jurisdictions that recognize common law marriage.” In fact, the Stone v. Thompson Court mentioned the Ashley Hedgecock article in its decision. The other factor relied upon by the Stone v. Thompson Court appears to be that in modern America “demographic shifts have altered what was previously thought of as ‘marriage’ and ‘family’ and what elements are, and should be, in play in the dissolution of marital and non-marital relationships. . . . [And a concern that, if] legal tests and remedies do not keep some pace with the reality of living arrangements, family law runs the risk of becoming a source of unfairness rather than a mechanism for achieving equity” (Marshal S. Willick, The Evolving Concept of Marriage and Coming Convergence of Marital and Non-Marital Property and Support Law, 19 Nev. Law. 6 (2011)).
In Stone v. Thompson, the South Carolina Supreme Court pronounced that the recognition of common-law marriage was no longer a necessary factor for the Courts to consider in a Family Court case, in part because “circumstances creating a need for the doctrine are not present in today’s society.”
The Current State of the Law
Regardless of the reason for the new law announced by the South Carolina Supreme Court abolishing common-law marriage, the result is that “no individual may enter into a common-law marriage in South Carolina after the date of this opinion [July 24, 2019].” In the view of the South Carolina Supreme Court, parties coming before the courts of the state should not be treated as married unless they have obtained a ceremonial marriage through civil or religious authorities, regardless of whether the parties intended to be in a committed relationship together, lived together, raised children, and engaged in mutually beneficial activities.
Developments Since 2019
Higher Standard of Proof for Pre-2019 Common-Law Marriages
The Stone v. Thompson decision not only abolished prospective common-law marriages but also established a higher standard of proof for couples seeking to establish that they entered into a common-law marriage before July 24, 2019. The Court held that parties must now prove the existence of a pre-2019 common-law marriage by clear and convincing evidence rather than the previous preponderance of the evidence standard.
This heightened standard has been applied in subsequent cases, making it significantly more difficult to prove that a common-law marriage existed before the cutoff date.
Recent Case Law: Sullivan-Carter v. Carter (2023)
In April 2023, the South Carolina Court of Appeals decided Sullivan-Carter v. Carter, Appellate Case No. 2019-001841, which demonstrated the practical impact of Stone v. Thompson‘s stricter standards. The Court of Appeals reversed a family court’s finding of common-law marriage, even where the parties had gone through a marriage ceremony in 1994 (which was invalid because the husband was still married to his first wife at the time). After his first marriage was dissolved in August 1995, the question became whether the parties formed a common-law marriage. The wife testified she considered herself unmarried and kept her affairs separate, while the husband claimed they were already married. The case highlighted that inconsistent behavior and statements about marital status can defeat a claim of common-law marriage, even under the pre-2019 framework.
The Sullivan-Carter case also clarified important procedural matters: orders determining the existence of a common-law marriage in bifurcated trials are treated as interlocutory orders, not final orders, allowing parties to appeal these determinations without waiting for the entire case to conclude. This addresses a significant procedural question about when parties must appeal marriage determinations.
Academic Analysis and Criticism
Since 2019, legal scholars have extensively analyzed the Stone v. Thompson decision. A 2024 article in the South Carolina Law Review critiqued the decision for creating an “all-or-nothing regime” that fails to address property rights between cohabiting couples who are not married. The article argued that South Carolina should consider alternatives such as cohabitation agreements or domestic partnerships to provide some protections for couples in committed intimate relationships.
Another 2023 analysis noted that the abolition of common-law marriage has particularly impacted couples who believed they were married but did not comply with licensing requirements, leaving them without the protections of marital property division, inheritance rights, or spousal benefits.
Remaining Issues and Unresolved Questions
Full Faith and Credit Recognition
If parties, even now after the Stone v. Thompson decision, enter into a common-law marriage in a state that recognizes the same before coming to South Carolina, South Carolina courts would have to still honor that common-law marriage because of the Full Faith and Credit Clause of the United States Constitution (Art. IV, § 1). Nothing in the Stone v. Thompson decision alters the obligations of South Carolina courts to uphold the Full Faith and Credit Clause or the longstanding judicial rule that “a marriage that is good in the country where performed (lex loci) is good elsewhere.” See also Travers v. Reinhardt, 205 U.S. 423 (1907).
So, if parties come to South Carolina after having established a common-law marriage that was recognized in their prior lex loci – similar to how the parties in the case of Travers v. Reinhardt came to the courts in Washington, D.C., after establishing a common-law marriage in New Jersey – South Carolina must recognize that common-law marriage, despite having abolished such recognition through the 2019 judicial fiat of the South Carolina Supreme Court in the Stone v. Thompson decision.
The Continuing Issue of Cohabitation
The 2019 Stone v. Thompson decision does not eliminate the need of the courts to address the repercussions of cohabitation that takes place in the absence of a state-sanctioned marriage. Cohabitation outside of marriage is not likely to disappear any time soon. In fact, “[a]ll trends point toward an increase in cohabitant cases. Half the American Academy of Matrimonial Lawyers Fellows polled in February 2011 noted a spike in the number of suits between former cohabitants, and 39 percent noted an increase in the number of cohabitation agreements” (Marshal S. Willick, The Evolving Concept of Marriage and Coming Convergence of Marital and Non-Marital Property and Support Law, 19 Nev. Law. 7 (2011)).
As of 2025, cohabitation has become even more common, with many couples choosing to live together without marriage for various personal, financial, or philosophical reasons. Yet South Carolina law provides no automatic legal protections for these relationships.
Property Rights for Cohabiting Couples
As early as 1911, the Supreme Court of South Carolina opposed the harsh doctrine applied in other states that dictated the mandate that “where the relation began as meretricious, it cannot be converted into a marriage” (Davis v. Whitlock, 73 S.E. 171, 175, 90 S.C. 233, 246 (S.C. 1911)). And while one might question the use of the term “meretricious” instead of the more current phrase of “committed intimate relationship” (see Morgan v. Briney, 200 Wn.App. 380, 384, 403 P.3d 86, 89 (2017)), South Carolina law only prevents recovery of compensation based on an intimate relationship if those relations are illegal or contrary to public policy (Grant v. Butt, 17 S.E.2d 689, 198 S.C. 298 (S.C. 1941)). Given the reasoning set forth in the Stone v. Thompson case, which holds that the changing culture and mores of the day provide a basis for changes to be made in the law relied upon by the courts, South Carolina cases that formerly barred compensation based on “meretricious” relationships should now be read as supporting such recoveries.
As a prelude to such findings in future cases, that a committed intimate relationship that does not rise to the level of state-sanctioned marriage may nonetheless require an equitable division when the relationship ends, in 1991 the Supreme Court of South Carolina recognized that “circumstances surrounding [a] relationship [may] make it tantamount to marriage” (Bryson v. Bryson, 553 S.E.2d 493, 496, 347 S.C. 221, 226 (S.C.App. 2001); see also Love v. Love, 626 S.E.2d 56, 367 S.C. 493 (S.C.App. 2006)). And, the present state of property division following the 2019 Stone v. Thompson decision that effectively barred property division in a Family Court case with aspects of a committed intimate relationship, leaves unaddressed the possibility of a party calling for an equitable accounting or other equitable relief between such individuals to be determined by the courts. The most straightforward case would be a basic action for an accounting, which is an action in equity (Historic Charleston Holdings, LLC v. Mallon, 381 S.C. 417, 427, 673 S.E.2d 448, 453 (2009)).
South Carolina’s Refusal to Recognize Palimony
As of 2025, South Carolina still does not recognize “palimony” – the payment of support to an ex-partner after the dissolution of a non-marital relationship. The only South Carolina case addressing this issue is the 1941 case of Grant v. Butt, which declined to enforce a cohabitation agreement based on concerns about “meretricious consideration.”
However, modern legal scholars argue that this nearly century-old precedent should be reconsidered in light of Stone v. Thompson‘s acknowledgment of changing social norms around cohabitation and marriage. Despite these arguments, no South Carolina court has yet awarded palimony or expanded equitable remedies for cohabiting couples.
Cohabitation Agreements as a Solution
The primary protection available to cohabiting couples in South Carolina is a written cohabitation agreement. These contracts can specify how property will be divided, what financial support (if any) will be provided upon separation, and other terms governing the relationship. South Carolina courts generally enforce such agreements as valid contracts, provided they are not based on illegal consideration (such as an agreement solely for sexual services).
Family law attorneys across South Carolina now routinely recommend that unmarried couples who live together execute cohabitation agreements to protect their interests, particularly when:
- One partner contributes more financially to the household
- One partner gives up career opportunities to support the other
- The couple purchases property together
- They have children together
- One partner owns a business that the other helps to build
The Constitutional Question
As a final matter to consider regarding the impact of the 2019 Stone v. Thompson decision, “the common law of England is of force in [South Carolina], except where it has been abrogated or modified by legislative enactment” (State v. Wilson, 161 S.E. 104, 110, 162 S.C. 413, 428 (S.C. 1931)). So, the Stone v. Thompson Court left unresolved for another day the question of how a common-law marriage recognized under the common law of England, and not abrogated or modified by legislative enactment, can nonetheless not be recognized in a Family Court action.
This constitutional question remains unaddressed as of 2025. No party has yet challenged the Stone v. Thompson decision on the grounds that it improperly overrode common law that should only be changed by the Legislature. However, this argument remains a potential avenue for future litigation.
Practical Implications for Charleston-Area Residents
For individuals and couples in the Charleston area and throughout South Carolina, the Stone v. Thompson decision has several important practical implications:
If You Were in a Relationship Before July 24, 2019
If you believe you were in a common-law marriage that began before July 24, 2019, you should be aware that:
- You must prove the marriage by clear and convincing evidence
- You will need substantial documentation showing mutual intent to be married
- Inconsistencies in how you held yourselves out as married can defeat your claim
- The process of proving a pre-2019 common-law marriage can be expensive and time-consuming
If You Are Currently Cohabiting
If you are currently living with a partner without being formally married:
- You cannot establish a common-law marriage in South Carolina, regardless of how long you live together
- You have no automatic rights to your partner’s property, support, or estate
- You should strongly consider executing a written cohabitation agreement
- You should review your estate planning documents to ensure your partner is provided for
- You should understand that only formal marriage will provide full legal protections
If You Formed a Common-Law Marriage in Another State
If you established a valid common-law marriage in another state that still recognizes such marriages (such as Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, or Utah), South Carolina must recognize that marriage under the Full Faith and Credit Clause.
Conclusion
More than six years after the South Carolina Supreme Court’s decision in Stone v. Thompson, the legal landscape for unmarried couples in South Carolina remains uncertain. While the decision clarified that no new common-law marriages can be formed, it left many questions unanswered about how the law should address the property rights and support obligations of couples who live together without formal marriage.
As cohabitation continues to increase and social attitudes toward marriage continue to evolve, South Carolina courts and legislators may need to revisit these issues and consider whether additional legal protections or remedies are appropriate for committed intimate relationships that fall outside the traditional definition of marriage.
For now, the best protection for unmarried couples in South Carolina remains a well-drafted cohabitation agreement prepared with the assistance of an experienced family law attorney.
Additional Resources
- Full text of Stone v. Thompson opinion – South Carolina Supreme Court (2019)
- Sullivan-Carter v. Carter opinion – South Carolina Court of Appeals (2023)
- South Carolina Code Title 20 – Family Law – SC Legislature
- South Carolina Law Review articles on common-law marriage – University of South Carolina
- Full Faith and Credit Clause – U.S. Constitution