Cameron Miranda
Common law, a body of unwritten laws based on legal precedents established by courts, is still very much in effect in the US and other countries today. Common law, also known as case law, draws from institutionalized opinions and interpretations from judicial authorities and public juries. In the US, common law evolved from a British tradition that spread to North America during the 17th and 18th centuries. While the number of common-law marriages is dwindling, common law marriage is still recognized in some US states, including Colorado, Alabama, and Texas. Each state has its own rules and requirements for what constitutes a common-law marriage, and these requirements must be met to qualify for legal protections and benefits.
| Characteristics | Values |
|---|---|
| Common law marriage recognition | Recognized in some states, including Colorado, District of Columbia, Alabama (before 2017), Montana, Iowa, Kansas, New Hampshire, Pennsylvania (before 9/2003), South Carolina, Utah, Rhode Island, Texas, Ohio (before 10/1991), Idaho (before 1996), Georgia (before 1997), and Oklahoma. |
| Requirements for common law marriage | Vary by state, but generally include living together for a certain period, presenting as spouses to the community, and being legally capable of marriage. |
| Divorce in common law marriage | Common law marriages are dissolved through the same formal judicial proceedings as traditional marriages, as there is no concept of "common law divorce." |
| Recognition across states | States without common law marriage generally recognize valid common law marriages from other states. |
| Benefits of common law marriage | Provides the same rights and obligations as a traditional marriage, including spousal support and property division upon separation. |
| Common law in the legal system | Common law, or case law, is a body of unwritten laws based on legal precedents established by courts. It is used in unusual cases where existing statutes do not provide a clear outcome. |
| Common law vs. civil law | Civil law is a comprehensive set of written legal statutes, while common law relies on precedents and interpretations from judicial authorities and juries. |
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What You'll Learn
Common law marriages in the US
Common-law marriage in the United States refers to a marriage that is legally recognised without a civil or religious ceremony or certification of marriage. For a couple to be considered married under common law, they must be legally free to marry, intend to be married, and be known to the community as a married couple.
Common-law marriage was popularised in the US during frontier times when it was difficult to obtain official marriage documentation. Some states thus opted to consider a couple married if they lived together for a certain length of time and acted as husband and wife.
Today, very few states recognise common-law marriage, and each has its own rules and requirements that must be met to qualify for legal protections and benefits. These requirements include living together for a specified amount of time, being of legal age, and being legally capable of entering a solemnised marriage.
The following US states continue to recognise common-law marriage, with varying requirements: 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.
It is important to note that the majority of states do not legally recognise common-law marriage as a valid form of marriage that carries any legal rights. However, most states that do not contract common-law marriages within their state will typically recognise these unions if they are contracted by a different state.
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Common law in other countries
Common law is one of the four major legal traditions (alongside civil law, customary law, and religious law) that form the basis of contemporary national legal systems. Common law is the most widespread legal system globally, employed by the greatest number of people compared to any single civil law system. Common law is based on legal precedent and the decisions of judges in previous cases, which are considered binding.
Common law forms the basis of the legal systems of many English-speaking countries or Commonwealth countries, including Australia, the Caribbean jurisdictions of Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago, and the United States (with the partial exception of Louisiana and Puerto Rico).
Ghana, a former British colony, retained the common law system after independence, and it is enshrined in the country's 1992 Constitution. Similarly, every country colonized by England, Great Britain, or the United Kingdom generally uses common law, with some exceptions like Quebec, South Africa, and Sri Lanka, which follow civil law.
Islamic Sharia law, consisting of Sharia (Islamic law) and fiqh (Islamic jurisprudence), is the most widely used religious law system and is one of the three most common legal systems globally, alongside common law and civil law. Islamic law is based on divine law derived from the Quran and Sunnah and the rulings of ulema (jurists). It is the primary legal system in several Islamic countries, including Saudi Arabia and Iran, and is used as a supplement to national law in others.
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How to qualify for common law marriage
Common law marriage is a form of legal marriage that does not require a civil or religious ceremony. Instead, it recognizes two parties that cohabitate and consent to live as spouses. While common law marriage is not recognized by most states, some U.S. states and territories still consider it valid. These include:
- Colorado
- Iowa
- Kansas
- Montana
- New Hampshire (for inheritance purposes only)
- Oklahoma
- Rhode Island
- South Carolina (for marriages before July 24, 2019)
- Texas
- Utah
- District of Columbia
The Territory of Guam and the Commonwealth of the Northern Mariana Islands do not recognize common-law marriage.
To qualify for a common-law marriage, you must meet the requirements of your state. Here are some general guidelines:
- Live together: Cohabitation is typically a minimum requirement. However, some states do not require a couple to live together for a specific period.
- Capacity to marry: Both parties must have the legal right to marry and be of legal age (usually 18 years old).
- Intent to marry: You must intend to be married and present yourself as a married couple to others.
- Mutual assumption of marital responsibilities: This can include sharing income and expenses, owning or leasing a home together, raising children together, or contributing to the upkeep of your home.
It is important to note that proving a common-law marriage can be challenging, and the specific requirements may vary by state. If you have any questions or concerns, it is recommended to consult with an experienced lawyer or legal aid organization. Additionally, keep in mind that if your common-law marriage is recognized by a court, you will need to obtain a traditional divorce if you decide to separate.
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Common law divorce
Common law marriage is currently recognised in a minority of US states, including Alabama (for marriages contracted before 1 January 2017), Colorado, Iowa, Kansas, Montana, New Hampshire, Ohio (for marriages before October 1991), Oklahoma, Rhode Island, Texas, and Utah. The District of Columbia also recognises common law marriages.
Common law marriages are formed when two people cohabit and consent to live like spouses, without a civil or religious ceremony. However, there is no such thing as a "common law divorce". If a couple lives in a state that recognises common law marriage, they must pursue a standard divorce, just like any couple married through traditional means.
The process of divorce varies by state, as not all states recognise common law marriages. Couples seeking a divorce must typically demonstrate the validity of their common law marriage, often through evidence like cohabitation, shared finances, or public acknowledgment of the relationship. This is because common law marriages do not have a paper trail like traditional marriages, which can make it difficult to prove the marriage existed.
In Texas, for example, if court proceedings are not filed within two years of a common law couple's separation, Texas law presumes the marriage never existed unless proven otherwise. However, once a couple is legally recognised as married under common law, they must go through the same legal divorce process as couples who are officially married.
In summary, while common law marriage is recognised in some US states, there is no such thing as a "common law divorce". Couples in a common law marriage must pursue a standard divorce, and the process will depend on the laws of the state in which they reside.
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Common law vs civil law
Common law and civil law are the two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. Common law is a less prescriptive system that relies heavily on judicial precedent to create binding decisions. Civil law, on the other hand, is more prescriptive and relies on legal codes as the primary source of law.
Common law, which originated in medieval England, generally permits anything that is not expressly prohibited by law. It is characterised by extensive freedom of contract, with few provisions implied by law. This means that it is important to set out all the terms governing the relationship between the parties to a contract in the contract itself. Judicial decisions are binding and can generally only be overturned by that same court or through legislation. Common law is typically found in countries that were former British colonies or protectorates, including the United States.
Civil law, rooted in the Roman Empire, was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. It is characterised by its reliance on legal codes and less weight is given to judicial precedent. Civil law is the world's most common legal system, practiced in about 150 countries. In a civil law jurisdiction, unless a contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
In the context of marriage, common-law marriage is recognised in some US states, including Colorado, Alabama, Montana, and Texas. Common-law marriage is where a couple is considered legally married without a civil or religious ceremony, simply by cohabiting and consenting to live like spouses. However, most US states have taken action to remove common-law marriage as a legal status.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Yes, common law is still very much in effect in the US and other countries, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
A common-law marriage is a legal framework that allows couples to be considered married without registering their union through a civil or religious ceremony. The requirements for a valid common-law marriage vary by jurisdiction, but generally include cohabitation and mutual agreement to live as spouses.
Only a handful of states fully recognize common-law marriages, including Alabama (before 2017), Colorado, District of Columbia, Georgia, Iowa, Kansas, Montana, New Hampshire, Ohio (before 1991), Pennsylvania (before 2005), Rhode Island, South Carolina, Texas, and Utah. Several other states have limited recognition of common-law marriages.
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