The South Carolina Supreme Court recently had an opportunity to determine whether South Carolina recognizes the “putative spouse” or “putative marriage” doctrine. The answer – a firm and unanimous “no.”
In Hill v. Bert Bell/Pete Rozelle NFL Player Retirement Plan (Opinion No. 27308 – Filed August 28, 2013), a former NFL player (“Husband”) married Hill (“Wife 1”) in Maryland. Though the parties separated, they never divorced. Nevertheless, Husband purported to marry Sullivan (“Wife 2”) in South Carolina. The record in this case indicates that Wife 2 and Husband obtained a marriage license, and Wife 2 was unaware of Husband’s marriage to Wife 1.
When Husband died, Wife 2 began receiving his pension from the NFL, as Husband even listed Wife 2 as his spouse on the applicable forms. About four years later, Wife 1 came back into the picture and started taking action to obtain the pension Wife 2 was receiving.
Wife 2’s claim/defense was that she should receive the same rights conferred upon a legal spouse under the putative spouse doctrine because she lived with Husband with the good faith belief they were married (note: Wife 1 was still alive this entire time).
The putative spouse doctrine is codified in section 209 of the Uniform Marriage and Divorce Act as follows:
“Any person who has cohabitated with another to whom he is not legally marriage in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited or declared invalid. If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.”
Prior to this case, South Carolina had not adopted the putative spouse doctrine.
The South Carolina Supreme Court declined to adopt the putative spouse doctrine, holding that it is contrary to South Carolina’s statutory law and marital jurisprudence. The Court cited past precedent for support, including one holding setting forth, “Even if Wife was acting under a good faith belief, South Carolina will not recognize her bigamous second marriage because to do so would violate public policy.” Additional authority cited by the South Carolina Supreme Court included language that, “A mere marriage ceremony between a man and a woman, where one of them has a living wife or husband, is not a marriage at all. Such a marriage is void, and not merely voidable.”
Despite any perceived unfairness, South Carolina now has a clear ruling on this issue. Regardless of this ruling, this author feels most South Carolina couples deciding to marry will not conduct much more thorough due diligence via such methods as “interrogating” a soon-to-be “spouse” and demanding to see prior divorce decrees, if any, and/or hiring a professional of some type for this purpose; however, it could prove financially disastrous to fail to take such steps in South Carolina if one feels that he or she will be dependent on a future entitlement or benefit that derives from being considered a lawful spouse in South Carolina.
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Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).
Our practice areas are limited to Criminal Law (including, but not limited to, South Carolina felony charges, South Carolina misdemeanor offenses, and state level ICE Holds), and Family Law (including, but not limited to custody, contested divorce, uncontested divorce, alimony, equitable distribution, child support, visitation, separation agreements, and Guardian ad Litem appointments). The firm handles other matters (non-Family and/or Criminal Law) only on a case-by-case basis.
This article was written by Dustin Lee, a South Carolina licensed attorney. The information contained in this article is not and is not to be construed as legal advice.