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Two Become One? How South Carolina's Common Law Marriage Doctrine Applies to Same-Sex Couples

Posted by Jordan W. Peeler | Jul 03, 2017 | 0 Comments

Married 20ben rosett 10609
Photo Credit: Rosett

South Carolina is one of the few states recognizing common law marriage. Currently, only eight states and the District of Columbia fully recognize it.[1] The Supreme Court's decision in Obergefell opened the door to same-sex common law marriage in South Carolina. There are currently only three jurisdictions officially recognizing same-sex common law marriage: Iowa, Rhode Island, and the District of Columbia.[2] However, a recent South Carolina decision could add another to the list.

What is common law marriage and how can it affect you?

This blog has previously dealt with the requirements for establishing a common law marriage in South Carolina. If those elements are met, what does it mean for same-gender couples? Those couples who have met the requirements for common law marriage since Obergefell could now be considered common law spouses, even in the absence of a formal ceremony.

What about couples who were together long before Obergefell? Were they “married” from the day they began to meet the requirements for common law marriage, however far back that was? For instance, if you have been with your partner ten years, would you be considered “married” only since June 26, 2015 (the date of Obergefell) or all the way back to when you began to fulfill the requirements? The answer could have major implications for your case, affecting everything from spousal support to the division of assets and debts.

How are South Carolina courts handling this issue?

So far, only one South Carolina case has dealt with same-sex common law marriage. In his decision earlier this year in Parks v. Lee[3], York County Family Court Judge Thomas White held that a couple who lived together for 28 years were common law spouses. Historically, if there was an impediment to the marriage, a couple could not be considered common law spouses. As Judge White noted, “[p]rior to … Obergefell, … the law of South Carolina constituted a legal impediment to common-law marriages of same-sex couples.”[4]

Since the Supreme Court held that laws forbidding same-sex marriage were unconstitutional, Judge White did not apply the previous prohibition on common law marriage for same-sex couples and held that Obergefell applied retroactively to late 1987 or early 1988 for the couple in Parks. They had held themselves out as married for over 28 years. They had a joint bank account, bought a home as co-mortgagors, and claimed each other as dependents on tax returns. Therefore, Judge White found a rebuttable presumption of common law marriage and said the spouse denying such a marriage failed to meet her burden proving otherwise.

This area of law is rapidly developing, and at some point in the future, our State Supreme Court will likely have to weigh in on what point in time same-sex couples can be considered common law spouses. Stay tuned for further developments.

Our attorneys keep up with developing trends in domestic litigation, such as this one, in South Carolina and around the country. We represent all types of families in all types of situations, and we would be glad to put our knowledge to use for you. The Stevens Firm, P.A. - Family Law Center has provided exceptional legal counsel and support to families throughout South Carolina for over two decades. We are well-equipped to handle all divorce and family law matters, no matter your circumstances. Contact us to schedule an initial consultation.


[2] Id.

[3] York County Family Court, Case No. 2016-DR-45-1061 (2016).

[4] Id.

About the Author

Jordan W. Peeler

Jordan W. Peeler is a family law practitioner in Spartanburg, South Carolina, handling both simple and complex family law cases, including divorce, property division, support, child custody, and visitation. Jordan was born and raised in Gaffney, South Carolina, and lived in Charleston, Boston, and Atlanta before returning to the Upstate to begin his practice of law. In 2002, Jordan received a B.A. in English from Clemson University. Following his graduation from Clemson, he considered following a path to priesthood in the Episcopal Church before deciding law was his chosen profession. He earned his J.D. in 2015 from the University of Georgia School of Law, which included a visiting year at the Charleston School of Law. After being sworn in as a member of the South Carolina Bar, Jordan joined our firm in the summer of 2016. While studying for the Bar Exam, he had an opportunity to clerk in a family law firm in Charleston, South Carolina. That position, along with his experiences at our firm, have allowed him to see the struggles clients face when they first become involved in family law litigation. He has developed an understanding of the stress and pain broken relationships can cause, as well as the fears clients have about facing an uncertain future. Because of these experiences, Jordan firmly believes that whether we are able to resolve our clients' cases through settlement, mediation or litigation, our goals are to help send out clients into the next chapter of life with fewer burdens and more peace of mind. This is what makes being a lawyer worthwhile for him. Jordan is an active member of the American Bar Association, the South Carolina Bar, and the Spartanburg County Bar Association. Within the South Carolina Bar, he is a Young Lawyers Division Diversity Committee Member and he looks forward to becoming more involved in several professional organizations as his career continues and develops. Jordan lives in Laurens, South Carolina, with his partner, Nathan, and their corgi, Ellie. He loves to watch sports, and his favorite teams are Clemson football (go Tigers!) and UNC basketball. His bucket list includes one day meeting Ruth Bader Ginsburg, and the most unusual thing you'll find in his office is a Star Wars figurine from his childhood that has been on every desk he's ever had. Bar Admissions South Carolina (2016) Professional Associations & Memberships American Bar Association (Section of Family Law, Young Lawyers Division) South Carolina Bar (Family Law Section, Young Lawyers Division, YLD Diversity Committee) Spartanburg County Bar Association American Association for Justice South Carolina Association for Justice Community Involvement Main Street Laurens Upstate Forever IPTAY Clemson Alumni Society for Equality First Presbyterian Church, Laurens, South Carolina


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