Miscellaneous

Legislation Attempts to Solve Common Problem of Common-law Marriage

By Anne Skove, Esq.

Probate judges see families at their worst: grieving, fighting, and with unresolved issues.

Probate judges believe that allowing common-law marriage, which South Carolina does, exacerbates conflicts over estates.

Will ending common-law marriage stop these types of conflicts? Would that it would! But the question of whether a couple was actually married would no longer be part of the debate. This would simplify issues (somewhat), decrease case processing time, and give the surviving spouse more certainty.

Legislation that would end common-law marriage was introduced this session, but is not likely to pass. Opponents claimed that the law would bar co-habitating couples from dividing property in the event of a break up.

See South Carolina Needs to End Common Law Marriage, Larry Martin, GreenvilleOnline (March 28, 2008).

According to the National Conference of State Legislatures, common-law marriage is permitted in 10 states and DC; 5 states grandfathered the practice; and 2 recognize it in certain circumstances. But, the full faith and credit clause of the Constitution has been interpreted to ensure that common-law marriage must be honored by states in which such a marriage may not be contracted. (This also explains the rush to ban same-sex marriage by states who never intended to allow it; the fear is/was that some states would allow it, and other states would thus have to recognize it.)

Full post as published by court-o-rama.org on March 28, 2008 (boomark / email).