847 S.E.2d 104
S.C. Ct. App.2020Background
- In March 2014 Swicegood sued in family court seeking recognition of a common-law marriage with her long-term same-sex partner, Polly Thompson, and related relief (separate support, alimony, equitable division).
- Swicegood alleged 13+ years cohabitation, a Las Vegas ceremony in 2011, joint property and beneficiary designations; Thompson produced domestic-partner affidavits and affidavits characterizing the ceremony as a commitment, not a legal marriage.
- Family court dismissed under Rule 12(b)(1), concluding South Carolina’s § 20-1-15 (prohibiting same-sex marriage) prevented formation of a common-law marriage and thus the court lacked subject-matter jurisdiction.
- While the appeal was pending, the U.S. Supreme Court decided Obergefell v. Hodges; this court remanded for consideration of Obergefell’s effect on jurisdiction and retroactivity.
- On remand the family court found Obergefell applies to common-law marriages but that South Carolina’s § 20-1-15 acted as an impediment until it was invalidated; because the parties’ relationship ended in 2013 (before the state ban was struck down in Condon on 11/20/2014) they did not renew any intent to marry and no common-law marriage existed.
- This Court affirmed: Obergefell is retroactive and § 20-1-15 is unconstitutional, but the statute nonetheless operated as an impediment that prevents recognizing a pre-removal common-law marriage when the relationship ended before the impediment’s removal and the parties did not reaffirm intent after removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Obergefell applies to common-law marriages | Obergefell invalidates exclusions and thus applies to common-law unions | Obergefell does not retroactively create legal marriages where state law prevented them | Obergefell applies to common-law marriages (federal law controls) |
| Whether Obergefell must be applied retroactively | Retroactivity required; unconstitutional laws are void ab initio so prior common-law marriages may be recognized | Application should not create marriages before state-law change without other conditions | Obergefell is retroactive (federal retroactivity doctrine) |
| Whether § 20-1-15 operated as an impediment preventing formation of common-law marriage | Plaintiff: void statutes cannot preclude a valid common-law marriage formed prior to Obergefell | Defendant: the statute, while invalidated later, existed during the relationship and functioned as an impediment | § 20-1-15 was an impediment while in force; impediment prevents formation absent renewal after removal |
| Whether the parties had requisite mutual intent to form a common-law marriage | Swicegood: parties mutually agreed and publicly held out as married (e.g., ceremony, rings, joint accounts) | Thompson: they understood they were unmarried; domestic-partnership affidavits and testimony negate intent | Because both parties acknowledged the state ban and did not renew intent after removal, court held there was no intent as a matter of law |
Key Cases Cited
- Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (same-sex couples have a fundamental right to marry; state laws excluding them are invalid)
- Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993) (federal rule of retroactivity: new federal rules apply retroactively to cases still open on direct review)
- Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (recognizes that pre-existing state-law rules may provide independent bases for denying relief despite retroactivity)
- Callen v. Callen, 365 S.C. 618 (2005) (common-law marriage requires mutual intent and public, unequivocal declaration; impediments prevent formation)
- Condon v. Haley, 21 F. Supp. 3d 572 (D.S.C. 2014) (district court struck down South Carolina’s statutory and constitutional bans on same-sex marriage)
- Yarbrough v. Yarbrough, 280 S.C. 546 (1984) (after an impediment is removed parties must agree anew to form a common-law marriage; agreement may be inferred from conduct)