A lawmaker in South Carolina wants to limit grounds for divorce, increase protections for married minors

Proposed legislation in South Carolina could limit access to divorce, amend the state's marriage license application, and extend provisions for married minors

 

 

A lawmaker in South Carolina pre-filed a bill earlier this month that’s sure to get folks talking in the new year. The proposed legislation, filed for the upcoming 2023-2024 session, would make changes to marriage license applications in the state, limit the legal grounds for divorce, and increase legal protections for married minors. 

 

Called the “Religious Freedom of Marriage Act,” House Bill 3488 was sure to catch our attention; AMM is an organization that advocates for both religious freedom and marriage equality, and this bill touches on both.

 

AMM spoke with the bill’s sponsor, newly-elected Representative Thomas Beach, to learn more about the proposed legislation and what impact it might have on the state’s marriage laws. Rep. Beach is a Republican serving Anderson County in District 10, which includes Anderson, Greenville, and Pickens counties. 

 

Here’s what we learned! 

 

An overview 

 

If passed, The Religious Freedom of Marriage Act (H3488) would: 

 

• Require couples to select grounds for divorce when applying to marry, or waive those rights: The bill would add a new section to the SC Code of Laws, requiring that a checklist with all recognized grounds for divorce be included on the state’s marriage license application form. Couples would be required to select the grounds for divorce to which they agree, and any grounds not selected at the time of application would be legally waived. 

 

• Require spouses to file a mutual application for divorce: Amend current law such that both parties to a marriage must mutually apply for divorce, instead of either party being allowed to initiate a divorce on their own.

 

• Prohibit mutual divorce under certain circumstances/ perceived hardships: Prohibit the mutual application for divorce if one party to the marriage is under significant stress due to their or a minor child’s serious illness; coma; developmental disability; loss of a job; deployment or work abroad; or other specific circumstance (see bill for the full list), unless that spouse has access to independent legal representation.

 

• Spouses under the age of 16 can file criminal sexual conduct charges against a spouse, regardless of their gender: Amend the law such that any married minor (of any gender) under the age of 16 can take legal action against a spouse who commits a criminal sexual conduct offense (3rd degree). 

 

• Out-of-state marriages of minors under 16 are void: Amend the current law such that any out-of-state marriage involving a minor under the age of 16 years old is void within the state.

 

 

There are currently 5 grounds for divorce in SC: adultery; desertion for a period of one year; physical cruelty; habitual drunkenness including use of a narcotic drug; or after living separate and apart for one year. 

 

 

 

Religious Freedom & Grounds for Divorce

 

Currently, divorce in South Carolina can be initiated by either party to a marriage whenever certain harms have been committed (such as adultery, desertion, or physical cruelty), or at any time following a year of separation (no-fault divorce). (SC Code § 20-3-10)

 

But for some religious couples, divorcing a spouse goes against their deeply-held beliefs and values. By allowing no-fault divorce, or by allowing either spouse to apply for divorce without consent of the other, individuals like Rep. Beach believe that the government infringes on their religious rights and marriage practices.

 

Rep. Beach intends for this bill to remedy that, he explains, by allowing any couple who is opposed to divorce to waive their legal rights to it on the marriage license application form when applying for a marriage license, and by requiring all couples to file a mutual application for divorce. 

 

As Rep. Beach explained, “[In] South Carolina, you can get a divorce if you don’t like the color of her hair, or maybe he snores… You can go ahead and file for divorce. What I’m arguing is that this tramples on freedom of religion.” 

 

“God hates divorce, I hate divorce,” he added, “that’s the heart of it.” 

 

Rep. Beach also points out that “holy matrimony is a lawful contract” entered into by two people, and he wants the law to require that both of those people uphold their end of that marriage contract, or else mutually consent to its end. The bill would “make divorce need to be mutual,” he said, instead of allowing only one person to initiatethe process.

 

“If we’re going to celebrate marriage, we must protect marriage… and that’s what I’m hoping to do,” he said. “Help those who feel their [religious] rights have been trampled on.” 

 

It’s worth noting that several other states offer a legally distinct type of marriage contract for religious couples who are opposed to divorce, called ‘covenant marriages.’ These marriages have very limited grounds for divorce, making them more difficult to end, and additional requirements for premarital counseling and couple’s counseling to resolve domestic difficulties.

 

Currently, covenant marriage licenses are only available in Arizona, Arkansas, and Louisiana. 

 

Related: What is a Covenant Marriage? (And Why Would Couples Choose One?)

 

Lawmakers in South Carolina have attempted to establish covenant marriage laws in the past, introducing the “South Carolina Covenant Marriage Act” in 2000, but were unsuccessful. Similar legislation was also introduced in Missouri (MO SB1117; MO HB1693) and Oklahoma (OK HB1668) just this year, but failed to pass. 

 

Related: An Officiant’s Guide to Covenant Marriages

 

 

 

The minimum age to marry in South Carolina is 16 years old. Currently, only 9 U.S. states and territories ban marriage for minors under 18 years old.

 

 

 

Increased protections for all married minors, regardless of gender

 

The bill also addresses certain aspects of underage marriage in the state. Currently, a person can’t be found guilty of criminal sexual conduct against their legal spouse in South Carolina, unless it’s a first or second degree offense (such as sexual battery by aggravated coercion or forcible confinement), or when their spouse is a boy under the age of 16 or a girl under the age of 14. (SC Code § 16-3-658)

 

As Rep. Beach points out, this law doesn’t offer equal protection to underage spouses, and leaves girls between the ages of 14 and 16 without legal options if their spouse engages in criminal sexual conduct (such as sexual battery by coercion or force, or when unable to offer consent because of mental incapacitation). 

 

This law appears to reflect South Carolina’s previous age of consent to marry, which was raised from 14 to 16 years old in 2019. Currently, minors of any gender cannot marry until they are at least 16 years old, without exceptions. (SC Code § 20-1-100)

 

Related: How Old Do You Have To Be To Get Married In Each State?

 

The bill would amend this law, such that any married minor under the age of 16 can file criminal sexual conduct charges against a spouse, provided other conditions are met. 

 

“What boils my blood is children getting harmed,” Rep. Beach told us, adding that this bill would “protect little girls.”

 

In addition, the bill would amend the law such that any out-of-state marriages involving children under the age of 16 would be ‘void ab initio.’ This means that they would have no legal bearing within the state. Currently, all marriages entered into in South Carolina by a minor under 16 are void, including common law marriages. 

 

• Read all SC marriage laws here. 

 

 

Points to consider, concerns, and what’s next

 

For now, H3488 has been referred to the Judiciary Committee, awaiting the start of the 2023 legislative session, convening on January 10th.  

 

This bill raises a few interesting points, and several concerning ones as well. 

 

Most importantly, perhaps, is that this bill would introduce religious guidelines for marriage into a secular document. This bill is written with only one religious ideal of marriage in mind, a narrow understanding of marriage as a religious covenant, rather than a secular agreement between two people and the state. 

 

Because of this, it raises concerns for the religious rights of individuals belonging to non-mainstream faiths, and of non-religious folks who view marriage as a secular or spiritual (but not religious) union. 

 

Additionally, it places a spouse in the position of giving up their legal rights in the future, without knowing what might happen in the future or how their partnership might change. 

 

Here at AMM, we believe that the tradition of marriage crosses all cultural and religious boundaries, and that every couple has the constitutionally protected right to enter into the institution of marriage on their own terms (including who officiates their ceremony). Although marriage as a legal agreement can be clearly defined, as a romantic or spiritual agreement it can mean something different to every couple. 

 

In order to honor the rights and values of all people, we must create laws that are inclusive and respectful of these differences. Unfortunately, this bill runs the risk of doing the opposite instead – by limiting individual access to divorce for all couples, not just those religiously-minded folks who oppose it, and by placing religious guidelines for marriage on secular documents. 

 

We'll be watching closely as this legislation moves forward, and will continue to keep you updated on this and other conversations about marriage law in the new year. 

 

 

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What’s next… 
Stay up to date on marriage laws in your state

 

Lawmakers around the country will be proposing hundreds of new laws in the coming days and weeks as the 2023 legislative session draws closer. To stay informed on what’s new and what might change regarding marriage laws in your state, visit the AMM News Page on the blog, and subscribe to AMM’s Monthly Newsletter: 

 

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American Marriage Ministries is a non-profit, interfaith and non-denominational constitutional church that provides free ordination, advocacy, and training for our ministers to ensure that all people have the right to get married and to perform marriage. Learn more here. 

 

 

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♦  How to Get Ordained and Officiate a Wedding in South Carolina 

 

♦ Conviértase en un Oficiante de Bodas en South Carolina
 

Friends and family members can perform wedding ceremonies in South Carolina if they’ve been ordained. Get ordained online with AMM to get started.

 

 

 

 

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