South Carolina Rules on Same-Sex Common Law Marriage

In a recent South Carolina trial court decision, a family court justice found that a same-sex couple who had separated after thirty (30) years of being together had a common law marriage. South Carolina is one of eight (8) states that recognize common law marriage, including Rhode Island. In so finding, the family court justice determined that the U.S. Supreme Court’s 2015 landmark decision - Obergefell v. Hodges – applies retroactively. In Obergefell, the U.S. Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person and that couples of the same-sex may not be deprived of that right. The South Carolina decision found that the couple’s conduct over a span of 30 years created a common law marriage even though Obergefell was not decided until 2015. The South Carolina decision, therefore, may be the first time a family court justice applied Obergefell retroactively to find that a same-sex common law marriage existed, and has potential implications for all states recognizing common law marriages, including Rhode Island.