A July 1, 2020, Court of Appeals opinion in Swicegood v. Thompson, 431 S.C. 130, 847 S.E.2d 104 (2020), determined that South Carolina code prohibited homosexual couples from forming the requisite intent to be married at common-law prior to the November 21, 2014, decision in Condon v. Haley, 21 F. Supp. 3d 572, 587 (D.S.C. 2014), which held the South Carolina Constitution’s probation on same-sex marriage was unconstitutional.
In March 2014, Swicegood filed an action in family court seeking an order recognizing the existence of a common-law marriage and for other relief. Swicegood alleged she and Thompson cohabited as sole domestic partners for over thirteen years until December 10, 2013, agreed to be married, and held themselves out publicly as a married couple. Thompson filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), SCRCP, alleging the family court lacked subject matter jurisdiction over Swicegood’s complaint because the parties were not married and lacked the capacity to marry.
The family court dismissed Swicegood’s complaint on May 7, 2014. It concluded it lacked subject matter jurisdiction because a common-law marriage was not legally possible pursuant to S.C. Code § 20-1-15, which reads, “A marriage between persons of the same sex is void ab initio and against the public policy of this State.” Swicegood appealed. During the pendency of that appeal the Supreme Court of the United States decided Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015) in which it held “same-sex couples may exercise the fundamental right to marry,” and the state laws challenged in that case were “invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” In an unpublished opinion, the South Carolina Court of Appeals then remanded the case to the family court with instructions to “consider the implications of Obergefell on its subject matter jurisdiction.”
Upon remand, the family court determined the couple could not have formed a common-law marriage because section 20-1-15 was in place throughout the couple’s thirteen-year period of cohabitation, and they believed they lacked the legal right to be a married couple during that time. The court concluded the couple could not have formed the requisite intention and mutual agreement to be married. Additionally, the family court concluded that even assuming Swicegood and Thompson cohabited with an actual intent and mutual agreement to be married, section 20-1-15 acted as a legal impediment to the creation of a common-law marriage between them. Swicegood appealed.
The Court of Appeals affirmed. It concluded that Obergefell should apply retroactively. However it determined that because S.C. Code §20-1-15 remained in effect at least until Condon was decided, there existed an impediment to the couple marrying that was still in effect at the time this action was filed. While explicitly finding that code section unconstitutional, it found “the parties could not have formed a common-law marriage because they did not renew their agreement to be married after the removal of the impediment.” The Court of Appeals concluded:
Because the parties’ relationship ended before South Carolina’s prohibition of same-sex marriage was struck down, they could not have formed a common-law marriage as a matter of law. Moreover, because the parties acknowledge they knew they could not legally marry in this state during the entirety of their relationship, they could not have formed the intent and mutual agreement to enter a legally binding marital relationship.
I agree with the second sentence of that conclusion but not the first (Judge Huff, in his concurrence, appears to hold the same opinion). I don’t see how an unconstitutional impediment could be a legally valid impediment but agree that if the parties believed there was an impediment to their marrying, they could not be married at common-law.
It is because there cannot be a mutual intent to be that which is impossible to be. The parties knew that same sex marriage was illegal in SC. They could not have formed the necessary mutual intent to be married because AT THE TIME they both believed it was impossible for them to be married.