Cecily Zamora
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England and was spread to North America during the colonial period. Common law is still very much in effect in the US and other countries, including Australia, Canada, and the United Kingdom. In the context of marriage, common-law marriage is a legal framework that recognizes two cohabiting parties who consent to live as spouses without a civil or religious ceremony. While the number of common-law marriages is decreasing, a handful of states in the US continue to recognize them, and each state has its own requirements for a long-term relationship to qualify as common law.
| Characteristics | Values |
|---|---|
| Number of states recognizing common law marriages in the US | Very few |
| States that recognize common law marriages | Colorado, District of Columbia, Alabama, Montana, Iowa, Kansas, New Hampshire, Pennsylvania (if before 9/2003), South Carolina, Utah, Rhode Island, Texas, Ohio (if before 10/1991), Idaho (if before 1996), Georgia (if before 1997), Oklahoma, Florida (if before 1/1/1968) |
| States that do not recognize common law marriages | California |
| States with limited common law marriage | Ohio, Idaho (after 1996), Georgia (after 1997) |
| States that abolished common law marriage | Alabama (after 1/1/2017) |
| Territories that do not recognize common law marriage | Guam, Northern Mariana Islands |
| Requirements for common law marriage | Live together for a certain period, act as spouses in public, be of legal age and capable of giving consent, be legally capable of entering a solemnized marriage, mutually assume marital rights and obligations |
| Common misconceptions | Living with someone for seven years or another arbitrary time frame creates a common-law marriage |
| Divorce in common law marriages | The same formal judicial proceeding is required as in statutory law marriages; there is no such thing as "common law divorce" |
| Common law outside the US | Practiced in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom |
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What You'll Learn
Common law marriage in the US
Common-law marriage in the US is an informal marriage where couples do not have a marriage license, ceremony, or certificate. Instead, it recognizes two parties that cohabitate and consent to live as spouses. This means that they live together for a certain length of time and act as husband and wife.
Common-law marriage was popularized in the US during frontier times when it was much harder to obtain official marriage documentation. Some states, therefore, opted to consider a woman and man married if they lived together for a certain length of time and acted as a married couple.
Today, only a handful of states have common-law marriages. These include Alabama (if created before 1 January 2017), Colorado, District of Columbia, Florida (if created before 1 January 1968), Georgia (if created before 1 January 1997), Indiana (if created before 1 January 1958), Iowa, Kansas, Montana, New Hampshire, Ohio (if entered before 10 October 1991), Pennsylvania (if entered before 1 January 2005), Rhode Island, South Carolina, Texas, Utah, and Idaho (if entered before 1996).
It is important to note that the requirements to contract a valid common-law marriage differ between jurisdictions. For example, in Utah, the relationship must be validated by a court or administrative order, and the parties must be of legal age and capable of giving consent. In Colorado, the state no longer recognizes common-law marriages entered by minors or foreign common-law marriages entered by minors.
Although the majority of states do not contract common-law marriages, they will typically recognize these unions if they are contracted by a different state. For example, California does not include common-law marriage in its laws, but it would recognize a common-law marriage if the couple obtained one in a state that recognizes it. This is because, under the United States Constitution, the full faith and credit clause states that states must respect other states' laws.
The finding of a common-law marriage can have significant consequences. Depending on the state, individuals may be granted the same rights and obligations as a spouse in a traditional marriage. However, it is important for partnered individuals to understand the legal ramifications of informal unions, as most states do not legally recognize common-law marriages at all.
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Common law in other countries
Common law, as a legal system, is employed by a great number of people across the world and is one of the four major legal traditions, alongside civil law, customary law, and religious law. It constitutes the basis of the legal systems of several countries, including Australia, the United States, and many other English-speaking or Commonwealth countries.
In the United States, common law marriage is recognized in some states, such as Colorado, Alabama, Montana, and Texas, and each state has its own rules and requirements for a long-term relationship to qualify as a common-law marriage. However, most states have taken action to remove common-law marriage as a legal status. Outside of the United States, common law has been adopted in various forms in other countries. For example, Ghana has enshrined the common law system in its 1992 Constitution, adopting the doctrine of judicial precedence based on the principle of stare decisis.
Other countries that were formerly colonized by England, Great Britain, or the United Kingdom, such as Australia, Barbados, Jamaica, and Trinidad and Tobago, generally follow the common law system. However, there are exceptions, such as South Africa and Sri Lanka, which follow Roman-Dutch law, and Quebec, which follows the civil code of France.
Additionally, some legal systems combine elements of common law with other traditions. For instance, the Islamic legal system, consisting of sharia law and fiqh jurisprudence, is one of the three most common legal systems globally, alongside common law and civil law. While sharia law is the primary legal system in several Islamic countries, it is also used as a supplement to national law in others.
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How to get a common law divorce
Common law marriage is currently recognised in the following US states: Colorado, Montana, Texas, District of Columbia, Alabama, Iowa, Kansas, New Hampshire, South Carolina, Utah, Rhode Island, Ohio, Idaho, Georgia, and Oklahoma. However, it is important to note that the majority of states do not recognise common-law marriages at all, and each state has its own rules and requirements for a long-term relationship to qualify as common law.
To obtain a common-law divorce, the process is similar to that of a traditional marriage. The first step is to validate the common-law marriage in a court of law. This involves presenting evidence of cohabitation for a stipulated period, the intention to live as a married couple, and public presentation as a married couple. Once the court has recognised the common-law marriage, a formal petition for divorce can be submitted, outlining reasons for the divorce and any other issues that need to be addressed, such as property division, alimony, and child custody.
It is important to note that there is no such thing as a "common-law divorce" because divorce is a creation of statutory law. Therefore, although it is possible to be married by common law, divorce must be done by statutory law in all jurisdictions. This means that, in states that recognise common-law marriages, a traditional divorce process must be followed, including filing a petition for divorce with the court and serving the spouse.
In cases where one partner denies the existence of a common-law marriage, the other spouse can present evidence such as joint tax returns, insurance policies, joint bank accounts, tax filings, utility bills, or shared property to prove the marriage's existence. This is an important step as without a written agreement, common-law spouses have no claim to child custody, child support, spousal support, or property division.
It is always recommended to seek legal advice when navigating a divorce, and a financial advisor can also help determine the potential impact of a divorce on your personal financial situation.
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Common law and civil law differences
The terms "common law" and "civil law" refer to legal systems. Common law is based on judicial precedent, whereas civil law is based on legal codes. Common law originated in medieval England and is used in many countries that were formerly under English rule, including the United States. In the U.S., all states except Louisiana, along with the federal government, use common law. Common law recognises two parties that cohabitate and consent to live like spouses.
Civil law, on the other hand, is not based on judicial precedent, and prior court decisions are not binding on future decisions. In civil law systems, a legislator drafts and writes the law into the code, which the court is required to follow. However, the court's interpretation of the code does not bind it, and the court may later interpret the law differently. Many continental European countries have comprehensive civil law codes.
Common law systems offer greater flexibility in granting different types of security over assets, which is an important feature of PPP arrangements involving commercial funding. They also have the concept of trusts, which enable security interests to be held by a trustee for lenders in syndicated loan situations without the need for a formal transfer or re-registration of security interests in new lenders' names. In civil law, security interests typically need to be re-registered in the name of the new lender, incurring additional registration costs and notarial fees.
In the context of infrastructure, certain terms like "Concessions" and "Affermage" have definite technical meanings and structures in civil law jurisdictions that may not be understood or applied in common law countries. Therefore, care should be taken when applying these terms loosely.
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The history of common law
Common law, also known as judicial precedent, judge-made law, or case law, is a legal system that primarily develops through judicial decisions rather than statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided", where courts follow precedents established by previous rulings. While common law may incorporate certain statutes, it is largely based on precedent and judicial rulings in previous similar cases.
The emergence of common law in England marked a shift from local, informal power arrangements to formal government organisation. It introduced innovations such as emphasising written documentation, particularly royal 'writs', promoting the peaceful resolution of disputes, utilising local juries to establish both law and fact, and establishing a clear hierarchy of courts. Additionally, Henry II established the Grand Jury, creating a coherent system for prosecuting crimes based on cooperation between local communities and royal judges.
In the United States, common law has a significant history, particularly in New York and Delaware. New York common law, due to its history as the commercial centre of the country, has a depth and predictability not yet matched by other jurisdictions. Similarly, American corporate law often includes a Delaware choice-of-law clause due to the state's comprehensive body of law on corporate issues.
In the context of marriage, common-law marriage is recognised in a limited number of states in the US, including Colorado, Alabama, Montana, Texas, and the District of Columbia. Each state has its own requirements, but common-law marriage generally recognises two parties that cohabit and consent to live as spouses, without a civil or religious ceremony. However, most states have taken action to remove common-law marriage as a legal status, and it is important for individuals to understand the legal ramifications of informal unions.
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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.
Yes, common law is still very much in effect in the US and elsewhere today, including countries such as 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. It recognises two parties that cohabitate and consent to live as spouses.
Only a handful of states fully recognise 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.
A common-law marriage can provide the same rights and obligations as a formal marriage, including spousal support and property rights, without the need for a marriage license or ceremony. However, it is important to understand the specific requirements and legal ramifications, as they vary by state.
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