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Domestic Relations
University of South Carolina School of Law
Montgomery, John E.

Domestic Relations
Entry Into Marriage
·         There is a constitutional right to marry and to marry those whom one chooses.
·         Even though the right to marry is a fundamental right, states may regulate so long as it has a compelling interest and using the least restrictive means.
Common Law Marriage—
·         Requirements— (KNOW!)
1)      Cohabitation,
2)      Holding out to the public as husband and wife,
3)      Age (both must be 16 or older),
4)      Intention (there must be mutual agreement to live as husband and wife),
5)      No Impediments (like bigamy or age).
·         There does not have to be a ceremony or documentation to be valid.
·         Common law marriage only affects how the marriage is created, but nothing about the marriage subsequent.
·         Time spent in a non-common law marriage jurisdiction does not count.
Statutory Marriage—
·         License Requires— (if other reqs. met, failure to obtain license won’t necessarily affect validity (?))
1)      Consent (if between 16-18 and living with parent, there must be a sworn affidavit of parental consent),
2)      Age (must be 16 to obtain license),
3)      Waiting Period (24 hour period between application and issuance).
·         Who May Enter Into Marriage—
1)      No consanguinity and affinity-voidable (1st cousins ok)
2)      Mental competency-voidable
3)      No Bigamy-void
4)      No Same sex-void
·         South Carolina will not recognize an out of state same sex marriage.
·         Other Requirements—
1)      Capacity and consent to enter the marriage,
·         Defenses like duress and undue influence apply.
2)      Consummation by cohabitation,
3)      No proxy marriage,
4)      Solemnization by authorized celebrant.
·         Valid marriage is created by meeting the statute’s requirements.
Rights in Marriage
Confidentiality—Common law privilege against disclosure of confidential communications made during marriage except in child abuse cases. Testifying spouse holds the privilege and can choose to waive.
Inheritance Rights—
·         Intestacy—Surviving spouse receives entire estate if no surviving issue, half of estate if surviving issue.
·         Elective Share—Spouse of decedent has right to take election share of 1/3 after funeral/administrative expenses.
·         Omitted Spouse—If a testator fails to provide for his surviving spouse, she will receive same amount as under intestacy unless omission was intentional or spouse was provided for in non-testamentary transfers.
Support and Separate Maintenance—
·         A reciprocal obligation to support that allows a spouse to receive payments without seeking dissolution of the marriage.
·         Court will determine the amount according to the circumstance

be overridden—the right is not absolute and will be governed by the best interests of the child principle.
Rights and Duties; Guardianship; Custody—
·         Parents are joint natural guardians. They’re charged w/ welfare, education, care and mgt of the estates of their children. M & F have equal power, rights, and duties, and neither has any right paramount to the right of the other. There is no legal distinction between natural-born and adopted children. Re custody: Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.
Duty of Support—
·         Both parents have a continuing duty to support a minor child.
·         Emancipation of the minor child terminates the duty of support (and all other duties and rights). Emancipation is triggered by:
1)      Marriage of the child,
2)      Presumed when child is 18 or Over,
3)      Presumption against emancipation Prior to 18,
·         Requires implied or express agreement of the parents
·         Burden is on the proponent of emancipation.
4)      Presumed w/ self-sufficiency of the minor.