Thursday, Apr. 10, 2008

Common-law marriage causes needless confusion

TRUE OR FALSE: A man and woman who live together for seven years are considered to be married under common law.

If you said “true,” you just illustrated one of the reasons the Legislature needs to pass a law to stop recognizing common-law marriages: Like most people, you don’t know what constitutes a common-law marriage.

Worse, as with any common law, no one can say for sure what the rules are; they’re squishy, and what seems to suffice one day can be obliterated by a single court ruling. Saying you’re “common-law married” does not make it so; it’s only so if a judge says it is. It isn’t determined by how long a couple has lived together or whether they have children together, although a judge could consider either — or not. A judge isn’t even allowed to consider the testimony of one partner about her deceased partner’s intentions.

The result is that someone spends decades believing she is “common-law married” — with inheritance rights, Social Security benefits, the right to determine what happens to the remains of her significant other — only to have a judge declare after her partner dies that their relationship didn’t meet that definition. And getting that losing verdict very likely cost her thousands or tens of thousands of dollars in legal fees.

Or a couple splits up after living together as husband and wife, and the woman gets a licensed marriage; when she dies, her common-law husband establishes that the licensed marriage was invalid (because a common-law marriage can only be dissolved through an actual, court-approved divorce), and he inherits her property instead of the man she thought was her husband.

Those uncertainties, combined with the complete lack of any legitimate need for such a device in today’s society, have led all but 10 states to abolish common-law marriage. Here in South Carolina, the House has voted repeatedly to abolish it, but a few senators have refused to allow a vote on the matter, and those pushing for change say there’s no point in debating it any further until minds are changed.

Those who support common-law marriage say eliminating it would hurt poor, uneducated women who wouldn’t realize the law had changed. And there is some risk of that; but the greater harm, the one about which we do not have to speculate, is already being done to those who believe the current law covers them but who cannot convince a judge of that.

Allowing common-law marriage encourages people to live precariously. It deludes them into believing — often incorrectly — that they are entitled to important legal rights. Abolishing it would force those who count on having the legal benefits of marriage to eliminate the delusion by taking concrete steps to obtain them — either through actual marriage or through wills or other types of contracts that are legally enforceable.

Supporters of the status quo say even if the current law hurts some people, it doesn’t hurt enough to worry about. Gracious; that certainly doesn’t stop the Legislature from passing all the special-interest tax breaks it can — the ones that favor a single industry or a single business. In fact, if the number of people who would benefit from a change in the law is the litmus test, half the bills that get passed would be rejected.

The test for changing the law shouldn’t be how many people might benefit, but whether it’s a change that leaves us with a better policy than the one we currently have. Eliminating common-law marriage is such a change.