In a same-sex common law marriage case, our Court of Appeals recently weighed in on the applicability in South Carolina of Obergefell v. Hodges*, the 2015 United States Supreme Court case that held same-sex couples may exercise the fundamental right to marry and that 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 appeal from the family court’s dismissal of Cathy Swicegood’s complaint alleging the existence of a common-law marriage with her same-sex partner, Polly Thompson, Swicegood argued the family court erred by dismissing the case for lack of subject matter jurisdiction**.

The family court case was filed in 2014. While Swicegood’s appeal was pending, the Supreme Court of the United States decided Obergefell.

The case sought an order recognizing the existence of a common-law marriage, a decree of separate support and maintenance, alimony, equitable division of marital property and related 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 as a married couple. She also alleged the couple exchanged and wore wedding rings, co-owned property as joint tenants with the right of survivorship and included each other as devisees in their wills. She also alleged they shared a joint bank account and that Thompson listed her as a “domestic partner/qualified beneficiary” on Thompson’s health insurance and as a beneficiary on her retirement account.

Thompson moved to dismiss the action, alleging the family court lacked subject matter jurisdiction over Swicegood’s complaint because the parties were not married and lacked the capacity to marry.

Swicegood submitted the affidavits of two individuals who each attested they witnessed a wedding ceremony between Swicegood and Thompson in Las Vegas on February 12, 2011.

Thompson submitted a memorandum and several exhibits in support of her motion to dismiss. She argued that in August 2012 and September 2013, she and Swicegood signed affidavits of domestic partnership in which they acknowledged they had “a close personal relationship in lieu of a lawful marriage,” were “unmarried” and “not married to anyone.”

Thompson contended these documents indicated the parties did not hold themselves out as a married couple. In her affidavit, Thompson attested Swicegood knew they were not married. She stated she and Swicegood participated in a “commitment ceremony” in Las Vegas “on a lark,” but they knew it was not a wedding and that they could not legally marry in Nevada. Thompson attested she gave Swicegood several rings during their relationship, but she intended none of these to signify they were married. She stated she was not and never had been married to Swicegood: “We both knew that if we wanted to get married, we could go to a state that allowed same-sex marriage. It was not our intent to enter into marriage, and we did not”.

The family court dismissed Swicegood’s complaint, concluding it lacked subject matter jurisdiction to adjudicate the issues because a common-law marriage was not legally possible pursuant to section 20-1-15 of the South Carolina Code (2014), which was still in force at the time. That statute read: “A marriage between persons of the same sex is void ab initio and against the public policy of this State.”

The Court of Appeals issued an unpublished opinion remanding the case to the family court with instructions to “consider the implications of Obergefell on its subject matter jurisdiction.” The family court again concluded it lacked subject matter jurisdiction, finding that although Obergefell applied to common-law marriages, it could not retroactively create a common-law marriage between the parties.

The court concluded Obergefell could not “logically be read to exclude common-law marriages,” and so long as South Carolina continued to recognize the validity of common-law marriages for opposite-sex couples, it had “a constitutionally mandated duty to recognize the validity of common-law marriages for same-sex couples.” The court did not expressly resolve the question of whether Obergefell applied retroactively, but it concluded 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.

The Court of Appeals applied Obergefell retroactively, but held that retroactive application of the decision did not require them to ignore the fact a state statute operated as an impediment to the formation of a common-law marriage between same-sex couples when it was still in force. Our state law concerning impediments to marriage was held to be “a pre-existing, separate, independent rule of state law, having nothing to do with retroactivity,” which formed an “independent legal basis” for the family court’s dismissal of Swicegood’s complaint.

*135 United States Supreme Court 2584 (2015).

**Swicegood v. Thompson, South Carolina Court of Appeals Opinion 5725 (July 1, 2020)