Cecily Zamora
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system that draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. Common law still has practical applications in some areas of law, such as contract law and the law of torts. Several countries continue to rely on common law legal systems, including the US, Canada, India, and Australia.
| Characteristics | Values |
|---|---|
| Definition | Body of law based on court decisions rather than codes or statutes |
| History | Roots trace back to the Middle Ages in England; spread to North America during the 17th and 18th centuries |
| Current Use | Practiced in the US, Canada, Australia, India, Hong Kong, New Zealand, and the UK |
| Sources | Plea rolls, yearbooks, and law reports |
| Nature | More malleable than statutory law; not bound by precedent but can reinterpret and revise laws |
| Court System | Usually uses an adversarial system with a neutral judge |
| Common Law Marriage | Refers to a person living with someone they are not legally married to but are in a conjugal relationship with; recognition varies by country and context |
| Proof of Relationship | Shared ownership of property, joint leases, utility accounts, identification documents, etc. |
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What You'll Learn
Common law in Canada
The criteria for a common-law relationship differ based on the province. For example, in Ontario, a couple is considered to be in a common-law relationship after living together for at least three continuous years. However, if they have a child together, they only need to have lived together for one year. In British Columbia, a couple is considered to be in a common-law relationship after living together in a marriage-like manner for at least two continuous years or if they have lived together for less than two years but have a child together. In Alberta, a common-law relationship is called an Adult Interdependent Relationship, and it is defined as a couple who have made a formal and valid Adult Interdependent Partner agreement and have lived together in a relationship of interdependence.
In Quebec, common-law relationships are referred to as de facto unions, and for tax purposes, a couple is considered common law after living together continuously for at least two years. It is important to note that in Quebec, unless legally married, a spouse will not be entitled to anything if their partner passes away.
Common-law status can also impact other areas, such as taxes, immigration, and estate planning. For example, for federal tax purposes, 'living common-law' refers to couples who have lived together for 12 continuous months or share a child. This definition also applies in the context of immigration. However, since family law falls under provincial law, the definition of common law in most other contexts is up to each individual province.
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Common law in the US
In the US, common law is found predominantly at the state level, with each state having its own common law rules and statutes. These rules are often then codified by the state legislature, which can modify or expand the scope of the rule, or replace it entirely with new legislation. For example, in 2018, the California Supreme Court ruled on a case that determined a three-part test to define whether California workers were independent contractors or employees. In response, the California Legislature created a new section in the Labor Code, modifying and expanding on the Supreme Court's ruling.
At the federal level, there is a limited body of common law, which consists of rules created and applied by federal courts in the absence of any other controlling federal statute. An example of this is the 2020 Supreme Court case Rodriguez v. FDIC, in which the Court quoted an earlier decision to explain that federal "common lawmaking must be 'necessary to protect uniquely federal interests'".
Common law courts use an adversarial system, in which two sides present their cases to a neutral judge. In criminal cases, the prosecutor and adjudicator are two separate people, with the prosecutor presenting the evidence to a neutral adjudicator, who makes a decision. Common law courts are not absolutely bound by precedent, but they can reinterpret and revise the law without legislative intervention to adapt to new trends.
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Common law in the UK
Common law is a term with historical origins in the legal system of England, which has been administered by the common-law courts of England since the Middle Ages. The English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It did not originally consist of substantive rights but rather of procedural remedies. The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure.
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. The judiciary is independent, and legal principles like fairness, equality before the law, and the right to a fair trial are foundational to the system. Although the common law has historically been the foundation and prime source of English law, the most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations, and by-laws. In the absence of any statutory law, the common law with its principle of stare decisis forms the residual source of law, based on judicial decisions, custom, and usage.
Common law is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. Common law is primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
The common law of England was largely created in the period after the Norman Conquest of 1066. It established a unified legal system, gradually supplanting the local folk courts and manorial courts. England spread the English legal system across the British Isles, first to Wales, and then to Ireland and overseas colonies, which was continued by the later British Empire. Many former colonies retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system.
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Common law in Australia
Common law is a "body of law" based on court decisions rather than codes or statutes. It is more malleable than statutory law. Common law courts are not bound by precedent, but they can reinterpret and revise the law without legislative intervention. The common law system as we know it started in England during the Middle Ages and was introduced to Australia through colonisation by the British.
The colonisation of Australia by the British led to the introduction of the English legal system, which formed the basis of the Australian legal system. The New South Wales Act 1823 established a Supreme Court with jurisdiction over criminal and civil matters, mirroring the English model. This was followed by the Australian Courts Act 1828, which ensured that English common and statute law up to that date would be applied in New South Wales, Tasmania, Victoria, and Queensland. The reception of English law in Western Australia and South Australia was later established by statute in 1829 and 1836, respectively.
The indigenous legal systems of Australia were largely ignored by the colonial legal system, and they have only been recognised to a limited extent in the post-colonial era. The indigenous legal systems varied across language groups, clans, and regions, evolving from accepted norms within indigenous societies.
Today, Australia's common law courts have the power to protect human rights principles, including the rule of law, except where specific legislation overrides this power. Common law recognition of rights, however, lacks the explicit provisions found in human rights treaties. While Australia does not have a Constitutional Charter or Bill of Rights, common law principles provide protection for children and people with disabilities.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs without the need for a marriage license or a ceremony. It is a marriage that results from an agreement between two legally capable people to consider themselves married, followed by cohabitation. The original concept of a "common-law" marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry. In effect, when a couple represents themselves to others as being married and organises their relationship as if they were married, they are married.
Community recognition of a marriage was largely what qualified it as a marriage in medieval Europe. Civil and religious officials typically took no part in marriage ceremonies and did not keep registries. Couples could choose from several more or less formal ceremonies (with different legal ramifications) as well as informal arrangements. It was relatively common for couples to cohabit with no ceremony; cohabiting for a moderate period was sufficient to make it a marriage.
In modern times, common-law marriage is recognised in seven US states and the District of Columbia. Nine other states recognise it with some restrictions. Common-law marriage does not exist in Scotland, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' until 2006. In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be defined as "unmarried spouses" and treated the same as married spouses for tax and financial purposes. Common-law status in Canada varies by province and legal context. Most provinces recognise common-law relationships after 1 to 3 years of continuous cohabitation or if the couple has a child together. In Quebec, common-law relationships are often referred to as de facto unions, and couples are considered common law for tax purposes after living together for at least two years.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is also referred to as case law.
The common law system as we know it started in England during the Middle Ages. The main sources for the history of common law during this period are the plea rolls and the Year Books. The doctrine of precedent developed during the 12th and 13th centuries, as collective judicial decisions were based on tradition, custom, and precedent.
Common law is more malleable than statutory law. Common law courts use an adversarial system, in which two sides present their cases to a neutral judge. In contrast, civil law systems proceed under an inquisitorial system in which an examining magistrate serves a dual role by developing the evidence and arguments for both sides during the investigation phase.
A common-law marriage is an agreement to marry rather than a marriage. The term is often used incorrectly to describe cohabitation or other legally formalized relationships. Informal cohabitation relationships are recognized for certain purposes in some jurisdictions, creating legal rights and obligations.
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