Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, September 6, 2019

SC Most Recent to Abolish Common Law Marriage

From the Desert News:

South Carolina is the most recent state to abolish common-law marriage, with a ruling from the state Supreme Court that calls the institution outdated and paternalistic.


Linda McClain, professor of family law at Boston University [said] “Common-law marriage cases can be pretty messy when you have facts that are all over the place.”

“The function was historically to normalize things, to take people who are deviating from the norm and to bring them under the protective umbrella, the moral umbrella, of marriage. But that’s the ethical debate today, whether you should treat people as married if they didn’t consciously take on marriage.”

Besides Utah, states that recognize common-law marriage are Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma and Texas. The District of Columbia also does, and New Hampshire provides for a marriage to be established after the death of one partner, “an after-the-fact remedy,” McClain said.

McClain said she found the justices’ reasoning remarkable, given that South Carolina is “not exactly the most liberal state.” But the ruling is in line with prevailing legal thought, which is “marriage is a right, but there’s also the right not to have marriage imposed upon you.”

The lack of a uniform legal standard, however, results in uneven outcomes, which is why a committee comprised of legal scholars across the nation is working on a proposal for a framework all states could potentially adopt. Naomi Cahn, a professor of law at George Washington University Law School, is a member of the Economic Rights of Unmarried Cohabitants Committee, and said the panel hopes to have a proposal within two years. Members are looking into practices across America and across the world, Cahn said.

Read more here.

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