Anaya Nolan
Common law is a legal system based on judicial precedent rather than statutes. It is primarily based on judicial decisions and precedents, and it is adaptable to evolving social and economic contexts. Common law originated in England and has been widely adopted, including in the U.S. In the U.S., common law marriage is an informal marriage without legal formalities like a marriage license, ceremony, or certificate. While most U.S. states have stopped allowing these marriages, some states still recognize them, including Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia.
| Characteristics | Values |
|---|---|
| Number of states that recognize common-law marriages | 8 (Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia) |
| States with limited recognition of common-law marriage | 3 (Utah, South Carolina, and New Hampshire) |
| States that do not recognize common-law marriage | 13 (including Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania) |
| U.S. territories that do not recognize common-law marriage | The Territory of Guam, The Commonwealth of the Northern Mariana Islands |
| U.S. law system | Common law, which is based on judicial precedent and societal customs |
| Common-law marriage definition | A marriage without legal formalities like licenses, ceremonies, or certificates, where two people intend to be married, act on that intention by living together, and are recognized as a married couple by their community |
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What You'll Learn
Common-law marriages in the US
The recognition of common-law marriages varies across different states in the US. As of 2022, common-law marriages are recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriages.
The term "common-law marriage" is often used colloquially to refer to cohabiting couples, regardless of their legal rights, which can create confusion regarding the legal rights of unmarried partners. Common-law marriage is arguably the original form of marriage, in which a couple takes up residency together, presents themselves as a married couple, and otherwise behaves as a married couple.
The origins of common-law marriage are uncertain, but it is claimed that it originated in English common law. However, it appears to have originated in colonial America, where the scarcity of clerics or civil officials necessitated a substitute for ceremonial marriage. As settlers moved into sparsely populated regions of the West, the need for common-law marriages expanded.
Today, each state that recognises common-law marriages has its own rules and requirements that must be met to qualify for legal protections and benefits. For example, in Texas, a couple can file a legal "Declaration of Informal Marriage", which is a legally binding document that must be completed by both partners and sworn or affirmed in the presence of the County Clerk. This is the same procedure used for issuing a marriage license, and the term "Informal" simply refers to the absence of a formal wedding ceremony.
It is important to note that 13 states have never permitted domestic common-law marriages, and 28 states no longer permit them within their jurisdiction. Additionally, the Territory of Guam and the Commonwealth of the Northern Mariana Islands do not recognise common-law marriages.
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Common-law marriages in individual states
Common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that survives only in a handful of U.S. states. Many Aboriginal nations permit common-law marriage, such as the Navajo Nation, which also allows its citizens to marry through tribal ceremonial processes and traditional means.
The United States Constitution's full faith and credit clause mandates that all states recognize common-law marriages from other states, as long as the couple meets the requirements of a common-law marriage in the state where they live. However, this recognition does not extend to invalidly contracted out-of-state marriages, which will not be considered valid even in states that allow such marriages domestically.
- Alabama (if created before January 1, 2017)
- Colorado
- Iowa
- Kansas
- Montana
- New Hampshire (for inheritance or probate purposes only)
- Oklahoma
- Rhode Island
- South Carolina
- Texas
- Utah
- District of Columbia
- Idaho (if created before 1996)
- Georgia (if created before 1997)
- Indiana (if created before 1958)
- Ohio (if created before October 10, 1991)
- Pennsylvania (if created before 2005 or 2003)
Some states, such as Oklahoma, have conflicting laws surrounding common-law marriages, and others, like Alabama, Florida, Georgia, Idaho, Indiana, Ohio, and Pennsylvania, only recognize common-law marriages established before a certain date. Additionally, couples in states that recognize common-law marriages must meet specific requirements, such as living together for a particular period, to gain marital status.
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Common law vs civil law
There are two main types of legal systems in the world: Common Law and Civil Law. Most countries adopt features from one or the other into their own legal systems. The United States, for example, generally follows a common law system, with the exception of Louisiana, which practices civil law.
Common Law
Common law is a legal system that originated in medieval England and was applied within British colonies across continents. It is based on the principle of 'stare decisis', which refers to the binding nature of precedent. Precedents are maintained through court records and historical documentation in collections of case law. Common law is less prescriptive than civil law, and generally permits anything that is not expressly prohibited. While statutes are used extensively in common law, judicial cases are considered the most important source of law, giving judges an active role in developing rules. This means that in common law countries, judges can make laws in certain areas.
Civil Law
Civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900) as notable examples. It is the world's most common legal system, practiced in about 150 countries. Civil law is generally more prescriptive than common law, and relies on legal codes as the primary source of law. In civil law systems, judges have a more limited role of applying the law to the case at hand. Civil law codes are designed to cover all eventualities, and contracts are often shorter as ambiguities can be resolved by operation of law.
The primary contrast between the two systems is the role of written decisions and precedent as a source of law. While common law systems place great weight on precedent, civil law judges tend to give less weight to judicial precedent. Common law countries will therefore have more similarities in their legal systems, whereas civil law systems can be more confusing to lawyers from other countries.
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Common law in the US vs the UK
Common law is a legal system that originated in England during the Middle Ages, with its official court records, known as plea rolls, written in Latin. The doctrine of precedent within this system developed during the 12th and 13th centuries, based on tradition, custom, and precedent. Common law in the US and the UK has diverged significantly over time, with the US and UK now described as "two countries separated by a common law".
In the US, common law marriage, also known as sui juris marriage, is a form of irregular marriage that is currently recognised in a handful of states, including Colorado, Montana, Texas, and the District of Columbia. To be considered a common-law marriage, a couple must meet certain requirements, including cohabitation and holding themselves out to the public as a married couple. Some states, like Oklahoma, have conflicting laws regarding common-law marriage, and others, like New Hampshire, only recognise it for inheritance purposes. Many Aboriginal nations, such as the Navajo Nation, also permit common-law marriages.
In contrast, the UK's legal system, including England and Wales, Scotland, and Northern Ireland, has a unique approach to common law. Scotland, for example, combines elements of civil law dating back to the Corpus Juris Civilis with its own common law traditions. Historically, Scottish common law focused on discovering the principle justifying a law rather than simply using precedent. While England has no written constitution and restricts judicial review, the US grants every court the power to pass judgment, creating a notable difference in their public law.
Another distinction between common law in the US and the UK lies in their treatment of privacy. In the US, privacy is often linked to commercial considerations, and while it can be purchased, it is not inherently enjoyed as a right. On the other hand, UK law is more plaintiff-friendly, as seen in defamation cases where statements about public figures that may be permitted in the US under freedom of the press can support a judgment for libel in the UK.
Additionally, differences emerge in the economic consequences of divorce. While most common-law countries follow the English model of granting judges discretion in reallocating property and income, some American states adhere to the principle of an equal division of assets.
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Common law and the US constitution
The US Constitution establishes a federal system of government with three branches: the executive, legislative, and judiciary. Each state has its own constitution, laws, and courts, and the US has 51 different legal systems, including the federal system. These systems mostly follow the common law tradition, except Louisiana, which is based on Napoleonic civil code. Common law marriage, an irregular form of marriage, is recognised in a few states and the District of Columbia, with some provisions in military law. It is also recognised by many Aboriginal nations, such as the Navajo Nation, which permits citizens to marry through traditional processes.
Common law marriage, also known as 'sui juris' marriage, is a form of marriage by habit and repute. It is a marriage without a formal ceremony, where two people live together and are considered a married couple by the community. While the specific requirements vary from state to state, common elements include living together for a certain period, cohabiting, and holding themselves out as a married couple. Some states, like Oklahoma, have conflicting laws, while others, like New Hampshire, only recognise common-law marriages for inheritance purposes.
The recognition of common law marriages has legal implications for couples. Legally recognised common-law marriages can provide benefits similar to traditional marriages, such as tax deductions and spousal social security benefits. However, in states that do not recognise common law marriages, couples cannot file joint tax returns and must file separately or as heads of household. Additionally, common law marriages can only be legally terminated through divorce in states where the practice is recognised.
The constitutionality of common law marriage has been affirmed by court decisions. For example, District Court of Appeals Justice D. Laurence Groner upheld the validity of common law marriages, stating that an agreement between a man and a woman to be husband and wife, consummated by cohabitation, constitutes a valid marriage unless invalidated by state statute. Despite this, common law marriages are not recognised in all states, and some states, like Colorado, have placed limitations on recognising foreign common law marriages involving minors.
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Frequently asked questions
Common law is a legal system based on judicial precedent rather than statutes. It is primarily based on judicial decisions and precedents, and differs from civil law, which relies on codified statutes enacted by legislative bodies.
The law of the United States is largely derived from the common-law system of England. However, American law has diverged significantly from its English ancestor. American judges, like common-law judges, apply the law and also make the law.
As of 2022, common-law marriages are recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
The basic features of a common-law marriage are that the two people mean for their relationship to be as a married couple, they act on that intention by living together and holding themselves out publicly as a married couple, and they meet the basic requirements under state law for a legal common-law marriage.
