South Carolina Family Law | Review | Professor Diane Current
ENTERING MARRIAGE–Relevant S.C. Statutes
§ 20-1-10: Persons who may contract matrimony.
(A) All persons, except mentally incompetent persons and persons whose marriage is prohibited by this section, may lawfully contract matrimony.
§Have to Be Mentally Competent Þ No Evid of Fraud or Duress
§& @least 16
Þ Prohibitions
§ (B) No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather’s wife, son’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister, mother’s sister, or another man.
§ (C) Mirror provision for women
§ Nobody in your Fam, except your cousins
Void v. Voidable
§ Violation of a prohibition creates a voidable marriage.
o Still Married until declared VOID
§void ab initio Þ Void from the Begining
§ 20-1-15: Prohibition of same-sex marriage.
Þ A marriage between persons of the same sex is void ab initio and against the public policy of this State.
S.C. Code § 20-1-100: Minimum ages for a valid marriage.
§Any person under the age of sixteen is not capable of entering into a valid marriage, and all marriages hereinafter entered into by such persons are void ab initio. A common-law marriage hereinafter entered into by a person under the age of sixteen is void ab initio.
(NOTE)
§16 & OVER—COMMON LAW MARRIAGE COULD POSSIBLY OCCUR
§ 20-1-80: Bigamous marriage = void ab initio
S.C. Code § 20-1-250: Applicants under age of consent; consent of relative or guardian.
§A marriage license must not be issued when either applicant is under the age of sixteen.
§B/w 16-18 and lives w/ parents/guard, must get their CONSENT
S.C. Code § 20-1-300: Issuance of a license to unmarried female and male under eighteen years of age when female is pregnant or has borne a child.
§… a marriage license may be issued to an unmarried female and male under the age of eighteen years who could otherwise enter into a marital contract, if such female be pregnant or has borne a child, under the following conditions:
§(a) & (b) Req you prove Preg & are marrying putative baby daddy
§(c) Written consent to the marriage is given by one of the parents of the female, or by a person standing in loco parentis, such as her guardian or the person with whom she resides, …[or, if none, DSS]…;
§(d) Without regard to the age of the female and male; and
§(e) Without any requirement for any further consent to the marriage of the male.
Marriage Formalities
§License S.C. Code § 20-1-210
§(Parental consent between 16 and 18, S.C. Code § 20-1-250)
§WAITING PERIOD:
A license may not be issued until 24 hours after the application has been filed. Most waiting periods prohibit marriage within a period of time after issuance of the license. S.C. Code § 20-1-220
§Formal Marriage Requirements
1) License (Parental consent between 16 and 18)
2) No Impediment (Consanguinity, Mental Capacity, Bigamy, Same Sex)
3) No Fraud or duress
4) Consummation by cohabitation
5) No Proxy Marriage
6) Ceremony Conducted by Official Authorized by Law
S.C. Code § 20-1-20:
§Only ministers of the Gospel or accepted Jewish rabbis and officers authorized to administer oaths in this State are authorized to administer a marriage ceremony in this State.
Þ Atty Gen. Opinions:
§A notary public is an officer authorized to administer an oath and is therefore authorized to perform a marriage ceremony. 1968-69 Op Atty Gen, No. 2741, p 208.
§Quaker marriages are valid in South Carolina. 1967-68 Op Atty Gen, No. 2549, p 244.
Common-Law Marriage
§It is a question of INTENT.
§Also have to be able to be married at all (age, not already married, not same-sex)
Þ To establish Common-law marriage in SC:
§Place of Common-Law Marriage
o To meet the elements of common law marriage in S.C., the elements must be met in S.C.
– Must live together IN SC
§Effect of Common-Law Marriage
o A common law marriage has the same rights and duties as a formal marriage. A common-law marriage must be dissolved in the same manner that a formal marriage must be dissolved.
– Reqs a Divorce
– Intestacy Rts
Þ Failure to Prove Common Law Marriage
§If parties are unable to prove a com-law marriage, then the couple is treated as cohabitants (i.e., roommates).
§Where parties fail to prove
brought in the family court.
Tranx Immunity
§To be (overly) Protective of Clt in situation where Clt may have to admit to Adultery, as not to be sbjt to Crim Penalties
Establishing Parenthood (Fatherhood)
§All Child Custody cases fall under Fam Crt whether parents are married or not. (Duh)
§Determining Paternity
o § 20-7-90
· Requires a parent to support a minor unmarried child, whether the child is legitimate or illegitimate
o § 63-17-10
· “The purpose of this article is to establish a procedure to aid in the determination of the paternity of an individual.”
· Includes “child” over 18
· Action may be brought by:
– child,
– natural mother,
– any person in whose care a child has been placed,
– an authorized agency (DSS),
– any person who claims to be the father of a child
o § 63-17-20—important points
§ If you have sex in S.C., you submit to the jurisdiction as to any child who may have been conceived by that act & personal jurisdiction may be acquired by service of process outside S.C.
§ Absent a court order to the contrary, a natural mother is the sole custodian of an illegitimate child unless she has relinquished her rights
§ If paternity has been acknowledged or adjudicated, the father may petition for visitation or custody
– A Potential Reason not to Seek Paternity/Support
§ In paternity actions, the natural mother and alleged father are competent to testify and may be compelled to appear
o § 63-17-50 (D)
§ Judicial or administrative proceedings are not required or permitted to ratify an unchallenged acknowledgment of paternity.
o § 63-17-60
§ “The following evidence is admissible at a hearing to establish paternity:”
Results of genetic testing (describes process of introduction into evidence
