SC Not really married, not really benefits, not really leave

August 5th, 2019
Reggie Gay at Burr Forman McNair
SC Not really married, not really benefits, not really leave south carolina common law marriage abolished, no marriage no benefits,no fmla lave without a marriage license.

You May No Longer Be Married in South Carolina

The Supreme Court of South Carolina recently issued an Opinion prospectively abolishing Common Law Marriage in South Carolina.  Stone v. Thompson, Op. No. 27908 (S.C. Sup. Ct. filed July 24, 2019) (Shearouse Adv. Sh. No. 30 at 94).  The effective date is July 25, 2019.  The Court’s reasoning was partially based on modern culture which is vastly different than the past.  The Court determined that South Carolina’s recognition of Common Law Marriage rested on outdated “moral paternalism”.  The stigma associated with unwed mothers and having children out of wedlock, or the difficulty of having a proper officiant for a marriage is no longer applicable.  Thus, the Court found the underlying rationale for recognizing Common Law Marriage no longer exists.

In its decision, the Court explained the reasoning for abolishing Common Law Marriage stating “We have concluded the institution’s foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted…  [T]he time has come to join the overwhelming national trend and abolish it… [and] parties may no longer enter into a valid marriage in South Carolina without a license…  We can discern no more efficacious way to fulfill these interests than to require those who wish to be married in our State to comply with our statutory requirements.”

The Court abolished Common Law Marriage prospectively meaning that parties can no longer enter into a valid Common Law Marriage from July 25, 2019 forward.  Common Law Marriages previously recognized as valid will remain valid.  Moving forward, couples will have to comply with the statutory requirement and have a valid marriage certificate.  The Supreme Court also clarified the test to be used by lower courts in determining whether a previous recognized Common Law Marriage continues to be recognized as valid.  This test or standard is the “clear and convincing evidence” standard.  The Court stated that a party asserting a Common Law Marriage is required to demonstrate mutual assent to be married by clear and convincing evidence using traditional factors, but the Court may not rely on a presumption based on cohabitation.

So what does this Supreme Court decision mean for South Carolina employers?  This change to the law may potentially affect employers and employees in regard to leaves of absence and benefits.  As a result of this decision, it now becomes important to determine the date on which an employee who maintains he or she is married under Common Law was recognized.  As an example, Common Law spouses have been eligible to take FMLA leave to care for a Common Law spouse suffering from a serious health condition.  Following this decision, employees will only be able to take FMLA leave to care for a spouse in a Common Law Marriage if the marriage was recognized before July 25, 2019.  Going forward, employees who were married July 25, 2019 or afterwards will have to have a valid marriage certificate in order to take FMLA leave to care for a spouse.  Depending on the language used in a company’s paid leave and other benefit programs, the date of marriage may affect eligibility in these programs as well.

In summary, while an employer may not have initially given any thought to the abolition of Common Law Marriage in South Carolina, the change in the law may actually impact how a company authorizes leave and other benefits.  Accordingly, an employer may want to consider asking employees to provide reasonable documentation evidencing the existence of a valid marriage.


This blog was written by Reggie Gay at Burr Forman McNair, which authors our Model Employee Policies for South Carolina Employers. You can find more in their Labor & Employment e-note on their website.