Stone v. Thompson

THE STATE OF SOUTH CAROLINA
In The Supreme Court

A. Marion Stone, III, Respondent,

v.

Susan B. Thompson, Petitioner.

Appellate Case No. 2017-000227

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Charleston County
Jocelyn B. Cate, Family Court Judge

Opinion No. 27908
Heard June 13, 2019 – Filed July 24, 2019

REVERSED

Donald Bruce Clark, of Donald B. Clark, LLC, of
Charleston, for Petitioner.

Alexander Blair Cash and Daniel Francis Blanchard, III,
both of Rosen Rosen & Hagood, LLC, of Charleston, for
Respondent.

JUSTICE HEARN: This case initially came to the Court to consider whether an
order from a bifurcated hearing determining the existence of a common-law
marriage was immediately appealable. In Stone v. Thompson, 426 S.C. 291, 826
S.E.2d 868 (2019), we held it was and retained jurisdiction to consider the merits.
We must now determine whether the family court was correct in finding Susan
Thompson and Marion Stone were common-law married in 1989, as well as whether
Stone was entitled to an award of attorney's fees.

Our review in this case has prompted us to take stock of common-law
marriage as a whole in South Carolina. We have concluded the institution's
foundations have eroded with the passage of time, and the outcomes it produces are
unpredictable and often convoluted. Accordingly, we believe the time has come to
join the overwhelming national trend and abolish it. Therefore, from this date
forward—that is, purely prospectively—parties may no longer enter into a valid
marriage in South Carolina without a license. Consistent with our findings regarding
the modern applicability of common-law marriage rationales, we also take this
opportunity to refine the test courts are to employ henceforth.

Nevertheless, the case before us remains. We do not believe Stone
demonstrated the mutual assent required to prove a common-law marriage, and as a
result, we hold the parties were not married and reverse the family court on the merits
and as to the issue of attorney's fees.1

I.

a. Historical Common-law Marriage

The institution of common-law marriage traces its roots to informal marriage
in Europe prior to the Reformation. Cynthia Grant Bowman, A Feminist Proposal

1
This Court has had jurisdiction of this case since 2018 when the issue of the
appealability of the order finding a common-law marriage was briefed, orally
argued, and ruled upon. After finding the matter was appealable, we maintained
jurisdiction in the interest of judicial economy, and the parties briefed and orally
argued the merits of the case. Unbeknownst to this Court, a mediation was
apparently conducted subsequent to oral argument, and while an opinion was in
circulation, this Court was advised by Stone's counsel that a mediated agreement had
been reached. Stone’s counsel requested that the appeal be dismissed and that the
case be remanded to the family court for approval of the agreement. We issued an
order directing the family court not to take any action while this case was pending,
and thereafter, counsel for Thompson requested we deny the motion to remand and
decide the case on its merits. Accordingly, we deny the motion to remand and
resolve the case that was fully briefed and argued to us.
to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 718 (1996); see also
Ashley Hedgecock, Comment, Untying The Knot: The Propriety of South Carolina's
Recognition of Common Law Marriage, 58 S.C. L. REV. 555, 559-62 (2007).
England recognized such unions during colonization, and as a result, common-law
marriage migrated to the New World. Bowman, supra, at 719. Some states
proceeded to adopt the doctrine, while others did not. Id. at 719-22. A primary
reason for those that did was logistical—frontier America was sparsely populated
and difficult to travel, making access to officials or ministers impractical for many.
Id. at 722-24. States also sought to legitimize "subversive" relationships and the
children thereof, as well as to direct women to the family for financial support
instead of the public fisc. Hedgecock, supra, at 560; see also Ariela R. Dubler,
Wifely Behavior: A Legal History of Acting Married, 100 COLUM. L. REV. 957, 968-
69 (2000).

South Carolina followed New York's approach in adopting common-law
marriage, holding it was a matter of civil contract that did not require ceremony;
rather, two people were married when they agreed and intended to be. Fryer v.
Fryer, 9 S.C. Eq. (Rich. Cas.) 85, 92 (1832); Fenton v. Reed, 4 Johns. 52 (N.Y. Sup.
Ct. 1809). As Justice Littlejohn explained in 1970, the institution sought to
"legitimatize innocent children and adjust property rights between the parties who
treated each other the same as husband and wife." Jeanes v. Jeanes, 255 S.C. 161,
168-69, 177 S.E.2d 537, 540-41 (1970) (Littlejohn, J. concurring). Common-law
marriage in South Carolina rests upon moral paternalism, as our courts have long
recognized. Id. at 166-67, 177 S.E.2d at 539 ("The law presumes morality, and not
immorality; marriage, and not concubinage; legitimacy, and not bastardy."
(quotation omitted)). While our legislature has not expressly codified common-law
marriage, it has recognized the institution by exception to the general requirement
to obtain a marriage license. S.C. Code Ann. § 20-1-360 (2014).

b. The Modern Trend

The prevailing trend, however, has been repudiation of the doctrine. The
reasons have been myriad—from economic to social—including some more
nefarious than others. Bowman, supra, at 731-49. Alabama became the most recent
state to do so, enacting Ala. Code 1975 § 30-1-20 in 2016. See Blalock v. Sutphin,
__ So. 3d __, 2018 WL 5306884 at *5 (Ala. 2018). By our count, this leaves fewer
than ten jurisdictions that currently recognize the institution.2

In 2003, the Pennsylvania Commonwealth Court set forth a thorough
explanation for its conclusion that common-law marriage should no longer be
recognized in PNC Bank Corp. v. W.C.A.B. (Stamos), 831 A.2d 1269 (Pa. Commw.
Ct. 2003).3 Notably, the court determined:

The circumstances creating a need for the doctrine are not present in
today's society. A woman without dependent children is no longer
thought to pose a danger of burdening the state with her support and
maintenance simply because she is single, and the right of a single
parent to obtain child support is no longer dependent upon his or her
marital status. Similarly, the marital status of parents no longer
determines the inheritance rights of their children. Access to both civil
and religious authorities for a ceremonial marriage is readily available
in even the most rural areas of the Commonwealth. The cost is
minimal, and the process simple and relatively expedient.

831 A.2d at 1279 (internal citations omitted). The court also pointed to benefits of
standardized formal marriage requirements such as predictability, judicial economy,
and upholding the statutes' "salutary" purposes. Id. at 1279-81.

2
Our legislature has attempted to remove South Carolina from the ranks of
recognizing states on many occasions, to no avail. See, e.g., H.B. 3925, 122nd Gen.
Assemb., 1st Reg. Sess. (S.C. 2017); S.B. 11, 120th Gen. Assemb., 1st Reg. Sess.
(S.C. 2013); H.B. 3588, 116th Gen. Assemb., 1st Reg. Sess. (S.C. 2005); H.B. 4597,
115th Gen. Assemb., 1st Reg. Sess. (S.C. 2004); H.B. 3625, 115th Gen. Assemb.,
1st Reg. Sess. (S.C. 2003); H.B. 3774, 114th Gen. Assemb., 1st Reg. Sess. (S.C.
2001); H.B. 3452, 114th Gen. Assemb., 1st Reg. Sess. (S.C. 2001); H.B. 3668, 113th
Gen. Assemb., 1st Reg. Sess. (S.C. 1999); H.B. 3656, 113th Gen. Assemb., 1st Reg.
Sess. (S.C. 1999); H.B. 4410, 112th Gen. Assemb., 1st Reg. Sess. (S.C. 1998).
3
Pennsylvania's Commonwealth Court—one of two intermediate appellate courts—
held that common-law marriage was abolished in the state. Pennsylvania's
legislature subsequently agreed, enacting a statute affixing January 1, 2005, as the
final day on which a valid common-law marriage could be contracted. 23 PA. CONS.
STAT. ANN. § 1103 (West 2005).
 c. Modern South Carolina

The common law changes when necessary to serve the needs of the people.
Russo v. Sutton, 310 S.C. 200, 204, 422 S.E.2d 750, 753 (1992). We will act when
it has become apparent that the public policy of the State is offended by outdated
rules of law. Id. (abolishing the "heart balm" tort of alienation of affections); see
also Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991)
(abolishing contributory negligence); McCall v. Batson, 285 S.C. 243, 329 S.E.2d
741 (1985) (abolishing sovereign immunity). As discussed—and perhaps
intuitively—common-law marriage's origins lie in the common law, and
consequently, it may be removed by common-law mandate, regardless of tacit
recognition by our legislature. Russo, 310 S.C. at 204, 422 S.E.2d at 753.

We find the Pennsylvania court's reasoning and other considerations
sufficiently persuasive to adopt a bright-line rule requiring those who wish to be
married in South Carolina to obtain a lawful license. Our law contains similar
provisions regarding child support, inheritance, and the ceremonial marriage
process. See S.C. Code Ann. §§ 20-1-210 to -240 (1976); §§ 62-2-101 to -109 (1976
& Supp. 2018); § 63-5-20 (1976 & Supp. 2018). The paternalistic motivations
underlying common-law marriage no longer outweigh the offenses to public policy
the doctrine engenders. By and large, society no longer conditions acceptance upon
marital status or legitimacy of children. The current case is emblematic of this shift,
as the parties' community of friends was wholly unconcerned with their marital
status, and indeed several of their witnesses were in similar relationships.
Meanwhile, courts struggle mightily to determine if and when parties expressed the
requisite intent to be married, which is entirely understandable given its subjective
and circumstantial nature. The solemn institution of marriage is thereby reduced to
a guessing game with significant ramifications for the individuals involved, as well
as any third party dealing with them.

Critically, non-marital cohabitation is exceedingly common and continues to
increase among Americans of all age groups.4 The right to marry is a fundamental
constitutional right, Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015), which
leads us to believe the right to remain unmarried is equally weighty, particularly
when combined with our admonitions that a person cannot enter into such a union

4
Renee Stepler, Number of U.S. adults cohabitating with a partner continue to
rise, especially among those 50 and older, Pew Research Ctr. (Apr. 6, 2017),
https://www.pewresearch.org/fact-tank/2017/04/06/number-of-u-s-adults-
cohabiting-with-a-partner-continues-to-rise-especially-among-those-50-and-older/.
accidentally or unwittingly, Callen v. Callen, 365 S.C. 618, 626, 620 S.E.2d 59, 63
(2005). Further, we must agree with the many observers who have noted that
common-law marriage requirements are a mystery to most.5 The present case is
again illustrative. None of the multiple witnesses who were asked understood what
was required to constitute a common-law marriage, despite the fact that, as
mentioned, several were involved in lengthy cohabitating relationships themselves.
Moreover, two of such partners testified in complete opposition to one another, with
one reporting they were common-law married, and the other stating emphatically
they were not. This further persuades us to reject a mechanism which imposes
marital bonds upon an ever-growing number of people who do not even understand
its triggers.

Our public policy is to promote predictable, just outcomes for all parties
involved in these disputes, as well as to emphasize the sanctity of marital union. We
can discern no more efficacious way to fulfill these interests than to require those
who wish to be married in our State to comply with our statutory requirements. Our
quest to see inside the minds of litigants asserting different motivations and levels
of knowledge at varying times must yield to the most reliable measurement of
marital intent: a valid marriage certificate.

d. Prospective Application

The states that have abolished common-law marriage have consistently done
so prospectively. However, many have utilized the legislative avenue, and as this
Court pointed out in Russo, "the legislature cannot create a statute which applies
retroactively to divest vested rights." 310 S.C. at 205 n.5, 422 S.E.2d at 753. This
Court can choose to retroactively apply a judicial change to the common law,
although we did not in Russo. Id.

The Pennsylvania Commonwealth Court in Stamos also elected to apply its
decision purely prospectively. 831 A.2d at 1282-83. The court weighed the purpose
of its new rule, the level of reliance on the old rule, and the impact on judicial
function by retroactive application. Id. at 1283. The Pennsylvania court noted the
benefits of the new rule should not undermine relationships which were validly
entered into at the time, and upending formerly-correct decisions of law served the
interests of no one. The court also concluded the old rule had been in effect for such

5
See Bowman, supra, at 711 & n.6 (discussing the widely-held belief that
cohabitation for seven years resulted in legal marriage).
a length of time that citizens undoubtedly relied upon it, including the parties before
the court. Id.

We likewise decline to exercise our prerogative to apply our ruling today
retroactively. We see no benefit to undoing numerous marriages which heretofore
were considered valid in our State, and we will not foreclose relief to individuals
who relied on the doctrine. Accordingly, our ruling today is to be applied purely
prospectively; no individual may enter into a common-law marriage in South
Carolina after the date of this opinion.

e. Refining the Test

Consistent with our observations regarding the institution's validity in modern
times, we believe we must update the standards courts are to apply in future
common-law marriage litigation. A common-law marriage is formed when the
parties contract to be married, either expressly or impliedly by circumstance. Callen,
365 S.C. at 624, 620 S.E.2d at 62. The key element in discerning whether parties
are common-law married is mutual assent: each party must intend to be married to
the other and understand the other's intent. Id. Some factors to which courts have
looked to discern the parties' intent include tax returns, documents filed under
penalty of perjury, introductions in public, contracts, and checking accounts.6

Appellate courts have previously recognized two lines of cases regarding
common-law marriage. See Tarnowski v. Lieberman, 348 S.C. 616, 620, 560 S.E.2d
438, 440 (Ct. App. 2002); Barker, 330 S.C. at 366-67, 499 S.E.2d at 506-07. The
first holds that a party proves a common-law marriage by a preponderance of the
evidence.7 Tarnowski, 348 S.C. at 620, 560 S.E.2d at 440. The second relies on "a
strong presumption in favor of marriage by cohabitation, apparently matrimonial,
coupled with social acceptance over a long period of time." Barker, 330 S.C. at 367,
499 S.E.2d at 506. This presumption—like common-law marriage itself—is based
on a conception of morality and favors marriage over concubinage and legitimacy

6
Kirby v. Kirby, 270 S.C. 137, 142, 241 S.E.2d 415, 417 (1978); Cathcart v.
Cathcart, 307 S.C. 322, 414 S.E.2d 811 (Ct. App. 1992); Barker v. Baker, 330 S.C.
361, 364, 366, 499 S.E.2d 503, 505-06 (Ct. App. 1998); Owens v. Owens, 320 S.C.
543, 546, 466 S.E.2d 373, 375 (Ct. App. 1996).
7
In probate matters, however, a party alleging a common-law marriage must carry
his burden by clear and convincing evidence. S.C. Code Ann. § 62-2-802(b)(4)
(2009).
over bastardy. Jeanes, 255 S.C. at 166-67, 177 S.E.2d at 539-40. It can only be
overcome by "strong, cogent, satisfactory or conclusive evidence" showing the
parties are not married. Id. at 167, 177 S.E.2d at 540. This Court has held that once
a common-law marriage becomes complete, "no act or disavowal" can invalidate it.
Campbell v. Christian, 235 S.C. 102, 109, 110 S.E.2d 1, 5 (1959).8

Thompson argues the rebuttable presumption of common-law marriage is
based on outdated assumptions about cohabitation. Given our foregoing assessment
of common-law marriage, it will come as no surprise that we agree. The concerns
regarding immorality, illegitimacy, and bastardy are no longer stigmatized by
society, and as a result, they can no longer serve as the basis for assuming individuals
are married.

Additionally, consistent with our preceding discussion regarding the sanctity
of a marital relationship and our reticence to impose one on those who did not fully
intend it, we believe a heightened burden of proof is warranted. Therefore, we hold
the "clear and convincing evidence" standard utilized in probate matters should also
apply to living litigants.9 This is an intermediate standard—more than a
preponderance, but less than beyond a reasonable doubt—and requires a party to
show a degree of proof sufficient to produce a firm belief in the allegations sought
to be established. In re Estate of Duffy, 392 S.C. 41, 46, 707 S.E.2d 447, 450 (Ct.
App. 2011).

Finally, to the extent necessary, we clarify a section of this Court's opinion in
Callen. 365 S.C. at 626, 620 S.E.2d at 63. A party is not required to show his
opponent had legal knowledge of common-law marriage; ignorance of the law
remains no excuse. He must demonstrate that both he and his partner mutually
intended to be married to one another, regardless of whether they knew their resident
state recognized common-law marriage or what was required to constitute one.

To sum up, in the cases litigated hereafter, a party asserting a common-law
marriage is required to demonstrate mutual assent to be married by clear and
convincing evidence. Courts may continue to weigh the same circumstantial factors
traditionally considered, but they may not indulge in presumptions based on

8
The preceding law is that which was in effect when Stone filed this case.
9
We join other jurisdictions in adopting this standard for non-probate common-law
marriage disputes. See Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1021 (Pa.
1998).
cohabitation, no matter how apparently matrimonial. While we have set forth the
law to be applied in future litigation, we apply the principles in effect at the time this
action was filed to the case at hand.

II.

a. Factual and Procedural Background

Stone and Thompson met in the early 1980's and began a romantic
relationship shortly thereafter. Thompson was married to another man at the time
and obtained a divorce from him in 1987. Later that year, Stone and Thompson had
their first child. After Hurricane Hugo hit Charleston in 1989, the parties had their
second child and started living together. They continued to live, raise their children,
and manage rental properties together for approximately twenty years. Thompson
worked as a veterinarian and owned multiple practices, while Stone performed
contracting work and collected rent from tenants. The parties ultimately ended their
relationship after Thompson discovered Stone was having an affair with a woman in
Costa Rica.

In 2012, Stone filed an amended complaint in family court seeking a
declaratory judgment that the parties were common-law married, a divorce, and an
equitable distribution of alleged marital property. Thompson answered, asserting
the parties were never common-law married and seeking dismissal. She also asked
the court to bifurcate the issues to first determine if a common-law marriage existed
if it would not dismiss the case. After a hearing, the family court denied Thompson's
motion to dismiss but granted her motion to bifurcate, ordering a trial on the sole
issue of whether the parties were married at common law.

The trial involved more than a week of proceedings, testimony from over 40
witnesses, and nearly 200 exhibits. Stone's testimony focused on the parties'
cohabitation for approximately twenty years, the fact that they raised their two
children together during this time, and their partnership in acquiring, renovating, and
renting multiple properties in the Charleston area. He submitted evidence that the
parties were jointly titled on real estate, boats, bank accounts, and credit cards, as
well as that Thompson had listed herself as married to him on several documents
from 2005-2008, including some prescribing criminal penalties for false statements.
Stone's witnesses generally testified that the parties were assumed to be married in
the community and were introduced as husband and wife by themselves and others
on multiple occasions without correction.
 Conversely, Thompson testified she never intended to marry Stone and went
to great lengths to preserve her unmarried status. She pointed to numerous
documents listing both her and Stone as single during the relevant time period,
including all of their tax returns, his documents related to a Costa Rican financial
venture, and a 2008 agreement signed by both parties. Thompson's witnesses
reported that they and others in the community knew she and Stone were not married
and they never heard them introduced as such. Several testified Thompson had told
them she would never marry again.

The family court concluded the parties were common-law married beginning
in 1989 when they began to live together full-time and Thompson introduced Stone
as her husband during an art opening. The court found Stone's testimony credible
while rejecting Thompson's versions of events on credibility grounds, as it
determined Stone's witnesses were longtime friends of both parties and were
distressed at having to testify, while many of Thompson's witnesses did not become
close to her until after the affair. The family court concluded that Stone presented
sufficient evidence of the parties' apparently-matrimonial cohabitation to trigger a
presumption of marriage that could only be refuted by strong, cogent evidence they
never agreed to marry. The court found Thompson failed to submit such evidence,
as once she expressed the intention to be married in December 1989, no subsequent
act could change it, as there is no common-law divorce. The family court awarded
$125,620.32 in attorney's fees and costs to Stone, reasoning that Thompson's actions
and denial of a common-law marriage were "flatly contradicted time and again . . .
."

Thompson appealed to the court of appeals, which determined the family
court's order was not final and appealable because it did not end the case. Stone v.
Thompson, 418 S.C. 599, 795 S.E.2d 49 (Ct. App. 2016). Thompson petitioned for
a writ of certiorari, which this Court granted. We issued an opinion on April 3, 2019,
finding the order was appealable. Stone, 426 S.C. 291, 826 S.E.2d 868.

b. Standard of Review

Appellate courts review family court matters de novo, with the exceptions of
evidentiary and procedural rulings. Stoney v. Stoney, 422 S.C. 593, 813 S.E.2d 486
(2018) (citing Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011)). Even under de
novo review, the longstanding principles that trial judges are in superior positions to
assess witness credibility and that appellants must show the trial judge erred by
ruling against the preponderance of the evidence remain applicable. Stoney, 422
S.C. at 595, 813 S.E.2d at 487. Likewise, this Court reviews a family court's award
of attorney's fees de novo. Chisholm v. Chisholm, 396 S.C. 507, 510, 722 S.E.2d
222, 224 (2012).

c. Analysis

Thompson asserts the record reflects she never intended to be married to
Stone. Stone contends the family court correctly found the parties were common-
law married in 1989 because the record demonstrates the parties held themselves out
and signed multiple documents under threat of criminal penalties as such during the
course of their relationship.

The family court found the parties were married in 1989 after they moved in
together, had their second child, and held themselves out as a married couple, as this
established the requisite meeting of the minds. We disagree. Stone testified
Thompson introduced him as her husband to a third party at an art opening around
Christmas 1989, but Thompson stated this did not occur. Stone did not produce the
third party to confirm that it did, and even respecting the court's credibility finding,
we do not believe this rises to a preponderance of the evidence that, at that time, the
two intended to be married and knew the other did as well.

Further, no evidence from the subsequent decade and a half demonstrated
mutual intent to be married. Even assuming Stone intended to be married to
Thompson throughout this time—which the evidence presented does not fully
support—the critical inquiry is whether Thompson ever did. The parties continued
to live and raise children together—consistent with their agreement to participate in
a committed relationship—as well as run their business partnership of purchasing,
flipping, and/or managing properties. Although some witnesses testified the two
introduced each other as husband and wife, others testified they never heard them
do so, and still others testified they knew not to because Thompson had told them
they were not married. While acknowledging the family court's credibility
determination, we nonetheless disagree with the court's view of the evidence. The
court's finding that Thompson's witnesses largely became close to her after the affair
is contradicted by fourteen witnesses who were acquainted with her and Stone during
the relevant time period and testified they knew the parties were not married, while
Stone's merely assumed they were. Significantly, there were no documents from
1989-2004 in which Thompson indicated she was married, and many that reflected
she was not. Moreover, the children's birth certificates stated their last name was
Thompson. While the children were born shortly before 1989, their legal last name
remained Thompson until June 2000, when it was changed to Thompson Stone.
Even if a rebuttable presumption the parties were married arose, Thompson refuted
it by strong, cogent evidence.

The evidence presented as to the factors appellate courts consider in
determining intent was decidedly mixed. For example, Thompson insisted on filing
her taxes as "single head of household" during the entirety of her relationship with
Stone. Kirby, 270 S.C. at 142, 241 S.E.2d at 417; Cathcart, 307 S.C. 322, 414 S.E.2d
811. On the other hand, both she and Stone filed other documents under penalty of
perjury claiming they were married. Barker, 330 S.C. at 366, 499 S.E.2d at 506.
Both sides presented evidence that the parties did/did not introduce themselves to
others as married over the years. Id. at 364, 499 S.E.2d at 505. The parties signed
some contracts jointly, but many more were only in one's name or the other's.
Owens, 320 S.C. at 546, 466 S.E.2d at 375. Finally, the parties shared at least one
checking account, but Thompson disputed Stone's assertion that they shared several.
Id.

The closest the parties came to the requisite meeting of the minds, in our
opinion, was from 2005-2008, when Thompson indicated she was married to Stone,
at least for certain purposes. It began with a medical intake form dated May 31,
2005, which only she signed, but continued that year with several documents both
parties signed. These included a mortgage loan application stating they were
married followed by mortgage documents listing the parties as husband and wife.
Mortgage documents from December 2006 and January 2007 likewise listed the
parties as married. Thompson signed a transfer of insurance from Stone to herself
that indicated she was his wife as of October 2008. She finally listed herself as
married on another medical intake form with a different doctor in December 2008,
which she sought to change to "single" two weeks after this case was filed.

However, these documents are undercut by others from the same period,
including Thompson's continued tax filings as single, Stone's Costa Rican
documents wherein he listed himself as single, and a 2008 reconciliation agreement
signed by both parties in which they agreed they had preserved their unmarried
status. Thompson further explained the parties signed the financial documents as
married during this time because banks were more closely scrutinizing mortgage
loans.10 While we in no way condone false statements in pursuit of a financial

10
This calls to mind yet another reason to abolish common-law marriage, as the
Stamos court recognized:
benefit, we do not believe these documents evidence the necessary intent to prove
the parties were common-law married.

It is clear the parties intended to be in a committed relationship and business
partnership together, but their conduct in living together, raising children, and
running the business does not demonstrate they each intended to be married and
knew the other intended the same. Furthermore, because our decision constitutes a
reversal on the merits, we likewise reverse the family court's award of attorney's
fees. Chisholm, 396 S.C. at 510-11, 722 S.E.2d at 224.

CONCLUSION
Based on the foregoing, we REVERSE the family court's decision.

BEATTY, C.J., KITTREDGE, FEW and JAMES, JJ., concur.

[C]ouples may swear in applying for benefits that they are man and
wife, but file tax returns averring under penalty of perjury that they are
single. One attorney in oral argument, when asked how he could
explain affidavits to the IRS inconsistent with the testimony of his client
in the litigation then before the court, replied matter-of-factly that he
assumed it lowered their tax liability. What is truly astonishing is not
that parties take inconsistent positions to gain advantage, but that they
seem to see nothing particularly inappropriate in their chameleon-like
behavior. We must conclude that this court can no longer place its
imprimatur on a rule which seems to be a breeding ground for such
conduct and its attendant disrespect for the law itself.

831 A.2d at 1281.