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Common law marriage law applied retroactively for same sex couple

Even though same sex marriage was legalized by the United States Supreme Court over two years ago in Obergefell v. Hodges, issues surrounding same sex marriage continue to be litigated as the states struggle to keep up and adapt. Recently, a judge in South Carolina had to look at how common law marriage applied to same sex marriage. Federal court judge rules Obergefell applies retroactively, and women had a common-law marriage, by Stephanie Francis Ward,, March 20, 2017. In that case, two women had been a couple for 30 years. When they split, one party asked the court for division of marital property, while the other argued that she did not consider the relationship a marriage and, thus, there should be no court ordered property division.
In determining whether a common law marriage existed, the court looked at the facts of the case: the parties owned a home together, had joint bank accounts, and held themselves out as married to family and friends. The court found that the common law marriage effectively began in 1987, which was 28 years before Obergefell. According to the article, this case is might be the first time a family law court determined that Obergefell applies retroactively. Effectively, the case says that, even though same sex marriage was not always legal, common law marriage has existed for a long time - and, since same sex marriage is legal now, we will let those couples reap the benefit of a previously established common law marriage.

If other states follow this South Carolina ruling, this case could have far reaching implications. There are eight states in the United States that recognize common law marriage. Because same sex marriage was illegal until recently, many same sex couples have been in long term, non-marital relationships. Some of those couples may have chosen to get married after Obergefell while others may have not. However, if the couples split up, they may be treated as if they had a common law marriage, which will give them the benefit of divorce and all that comes with it, including property division and alimony. The case outlined above basically says that, if any of these same sex relationships meet the criteria of a common law marriage, the parties will be treated as if they have been married since the time that the criteria were met. Thus, there could be far more same sex marriages than anyone realizes.


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