865 S.E.2d 775
S.C.2021Background
- Petitioner Cathy J. Swicegood and respondent Polly A. Thompson disputed whether they had a common-law marriage; matter reviewed after family court and the court of appeals decisions.
- The court of appeals concluded no common-law marriage existed, relying on two grounds: (1) S.C. Code §20-1-15 (which barred same-sex marriage) operated as an impediment to forming a common-law marriage between same-sex partners, and (2) the parties lacked the requisite mutual intent and agreement as a matter of law.
- Obergefell v. Hodges held same-sex couples have a fundamental right to marry and invalidated state laws excluding same-sex couples from civil marriage.
- The court of appeals treated §20-1-15 as a pre-existing, independent state-law rule unrelated to Obergefell’s retroactivity, and therefore as a separate basis for denying recognition of a common-law marriage.
- The South Carolina Supreme Court granted certiorari, held §20-1-15 was void ab initio under Obergefell and cannot serve as an impediment, vacated that portion of the court of appeals opinion, but affirmed the ultimate result that no common-law marriage was established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §20-1-15 (ban on same-sex marriage) operated as an impediment to forming a common-law marriage pre-Obergefell | §20-1-15 is unconstitutional under Obergefell and void ab initio; it cannot bar recognition of a pre-Obergefell common-law marriage | §20-1-15 was a valid pre-existing state-law impediment to recognizing same-sex common-law marriages before Obergefell | Court: §20-1-15 was void ab initio post-Obergefell and cannot serve as an impediment; vacated that part of the court of appeals opinion |
| Whether the parties established the requisite intent and mutual agreement for a common-law marriage | Swicegood contended the parties had intent and agreement to be married under common-law principles | Thompson argued the parties lacked the mutual intent and agreement necessary to form a common-law marriage | Court: Affirmed the court of appeals’ ultimate result — no common-law marriage was established on the record |
Key Cases Cited
- Obergefell v. Hodges, 576 U.S. 644 (2015) (same-sex couples have a fundamental right to marry; laws excluding them are invalid)
- Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (discusses separate pre-existing state-law rules unaffected by retroactivity analyses)
- Norton v. Shelby Cnty., 118 U.S. 425 (1886) (an unconstitutional statute is void ab initio)
- Bergstrom v. Palmetto Health All., 358 S.C. 388 (2004) (South Carolina precedent treating unconstitutional statutes as if never enacted)
- Atkinson v. S. Express Co., 94 S.C. 444 (1913) (supports the principle that an adjudged unconstitutional statute is as though never passed)
- Swicegood v. Thompson, 431 S.C. 130 (Ct. App. 2020) (court of appeals decision finding no common-law marriage; relied on §20-1-15 and lack of mutual intent)