Same sex couples now have the same rights, protections and obligations under our Domestic Relations laws as heterosexual couples. Here is some advice for same sex couples who are contemplating marriage.
Are you already married? On November 18 United States District Court Judge Michelle Childs ruled that South Carolina must recognize same sex marriages from other jurisdictions. If you are legally married in another state, you are legally married in South Carolina.
What about Common Law Marriage? When two people live together and hold themselves out to the public as being married, they may be legally married in accord with South Carolina law even if they have not obtained a marriage license. Does this rule now apply to same sex couples? The answer is a simple “Yes” and “No”.
As of November 12, 2014 (the date of Judge Gergel’s decision in Charleston) same sex couples residing in South Carolina who from that time forward who hold themselves out to the public as being married and live as if they are married, may be considered married even if they do not have a marriage license. However, any period of time a same sex couple lived as married in South Carolina prior to November 21, 2014 does not count and a new intention to be married must be formed.
The reason for this is the case of Callen v Callen. In Callen a couple lived in several different states for many years as husband and wife. All of those states required that a marriage license be issued to validate a marriage. The couple then moved to South Carolina and soon thereafter filed for divorce. The Supreme Court ruled that a marriage did not exist in those other states as those states did not recognize a “common law” marriage. The court ruled:
Even assuming, as Page urges, that the parties lived together in Florida, New York, Massachusetts, and Ireland, and further assuming that they moved together from Florida to South Carolina in August 2000, no common-law marriage could have been formed, if at all, until after the move. Since none of those other jurisdictions sanctions common-law marriages, there was an impediment to marriage until the parties took residency here. It must be presumed that Sean and Page’s relationship remained non-marital after the move, after the impediment disappeared. Consequently, Page has the burden of proving that the parties entered into a marital agreement after moving to South Carolina.
Consider a Prenuptial Agreement: A Prenuptial Agreement is not necessarily a cynical document prepared in contemplation of divorce. Marriage is as much an economic partnership as it is a family relationship. Many same sex couples will be getting married later in life after having acquired significant assets. A well drafted Prenuptial Agreement will simply quantify and determine the pre-marital assets of both parties and establish the foundation for the families’ economic estate moving forward.
Estate Rights: In South Carolina a person can not disinherit their spouse. The Probate Code provides to a surviving spouse a “marital election” of 1/3 of the marital estate. This means that the surviving spouse gets to choose between what is left to them by way of their spouses Will or 1/3 of the decedent’s estate as determined by the Probate Court.
Divorce: Marriage equality means divorce equality. All assets acquired during the marriage (without a Prenuptial Agreement stating otherwise) will generally be considered marital. All assets acquired prior to marriage will generally be considered non marital. Children born or adopted by the couple during the marriage are presumed to be the children of both. Upon separation and divorce the best interests of the child(ren) will control the terms of legal and physical custody rights.
Marriage equality in South Carolina means that our State Government is not permitted to regulate Domestic Relations law in a way that discriminates against same sex couples. Marriage equality simply affirms the religious and personal freedoms of all citizens to organize their personal lives as they see fit without government meddling. When we understand marriage equality in this context, it is very much in accord with the values many Americans hold dear.