I would like to thank Professor Roy T. Stuckey for making me aware of the February 18, 2015 Court of Appeals opinion in Thomas v. 5 Star Transportation, 412 S.C. 1, 770 S.E.2d 183 (Ct. App. 2015). Evidently there is now a third way for folks to become married in South Carolina.
Thomas was a workers’ compensation case in which Emily Thomas attempted to obtain surviving spouse benefits after George Thomas died while working as a tour bus driver. One issue on appeal was whether George’s death was a result of his employment. The other issue on appeal was whether Emily was a surviving spouse.
George married one Cynthia Whaley on February 9, 1995. George and Emily met in 1999 and lived together for about eight years prior to his death. On September 20, 2006, George and Emily had a marriage ceremony. George told Emily a day or two before the ceremony he and Cynthia were divorced. However, George and Cynthia’s divorce was not final until February 9, 2007. Emily did not learn about the timing of the divorce until after George’s death.
George and Emily’s ceremonial marriage was not valid because he was still married to Cynthia at the time of the ceremony. However the Workers’ Compensation Appellate Panel granted Emily survivor benefits by finding Emily was George’s common law or putative spouse. While this matter was on appeal, the South Carolina Supreme Court, “decline[d] to adopt the putative spouse doctrine, as it is contrary to South Carolina’s statutory law and marital jurisprudence.” Hill v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 405 S.C. 423, 426, 747 S.E.2d 791, 792-93 (2013).
The Court of Appeal further found that George and Emily did not enter a valid common law marriage after George’s divorce from Cynthia. Prior case law notes that the removal of an impediment to a marriage contract [in this case George’s divorce from Cynthia] does not convert an illegal bigamous marriage into a common law legal marriage. After the barrier to marriage has been removed, there must be a new mutual agreement, either by way of civil ceremony or by way of a recognition of the illicit relation and a new agreement to enter into a common law marriage arrangement. The Court of Appeals determined that because Emily did not know of the impediment to marriage, she could not recognize it and agree to continue the relationship once it was removed. Accordingly no common law marriage existed.
Despite finding no common law marriage, the Court of Appeals still granted Emily surviving spouse benefits under a “good faith exception.” Citing the case of Davis v. Whitlock, 90 S.C. 233, 246, 73 S.E. 171, 175 (1911), the Court of Appeals noted:
[I]f a man and woman enter into a contract of marriage believing in good faith that they are capable of entering into the relation notwithstanding a former marriage, when, in fact, the marriage is still of force, and after the removal of the obstacle of the former marriage the parties continue the relation and hold themselves out as man and wife, such action constitutes them man and wife from the date of the removal of the obstacle.
The Court of Appeals found that George did not know he could not marry when he and Emily had their marriage ceremony. Additionally, George and Emily continued to act as husband and wife after the impediment was removed. Accordingly, the Court of Appeals found Emily was George’s surviving spouse because she and George married in good faith.
This good faith exception looks a lot like a common law marriage to me. However the Court of Appeals explicitly found George and Emily did not enter a common law marriage. Further no one disputes that their ceremonial marriage was not valid. It appears there is now a third, “good faith,” method to become married in South Carolina. Evidently too few South Carolina residents were becoming unwittingly married from common law marriage alone.
At least there was a marriage ceremony here. That does at least show some intent to be wed. I agree it’s a fascinating case.
Very interesting new twist on marriage. Thanks for enlightening!