Cecily Zamora
Common law, also known as judge-made law, case law, or judicial precedent, is a body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means that courts follow precedents established by previous decisions. Common law originated in England during the Middle Ages and was spread to the British Isles, and later to colonies, by the English and then the British Empire. Today, approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law. Many former colonies retain the common law system, including the US, Canada, India, and Australia.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law based on court decisions and judicial precedent rather than codes or statutes. |
| History | The common law system started in England during the Middle Ages and spread to Wales, Ireland, and overseas colonies. Many former colonies, including the US, Canada, India, and Australia, continue to rely on common law. |
| Sources | Common law can be found in law reports published by government and private-sector publishers. Private-sector publishers often provide additional resources, such as indexing, references to key principles, and editorial analysis. |
| Courts | Common law courts typically use an adversarial system, where two sides present their cases to a neutral judge. |
| Marriage | Common-law marriage refers to a marriage that occurs without a license or ceremony, based on the couple's agreement and cohabitation. It is not legally recognized in all jurisdictions but is generally respected if lawfully entered in another state or country. |
| Proof of Relationship | Proof of a common-law relationship may include shared ownership of property, joint leases, utility accounts, and important documents showing the same address. |
| Inheritance | In common law jurisdictions, spouses may not automatically inherit without a will, and legal rights and responsibilities may differ from those in a legally recognized marriage. |
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What You'll Learn
Common law in Canada
Common-law relationships are recognised in Canada, but the rights of common-law couples are not always equal to those of legally married couples. Common-law spouses may not automatically inherit their partner's estate, and the laws on this differ between provinces. For example, in Quebec, a common-law spouse is entitled to nothing unless they are named as a beneficiary in a will. In contrast, in British Columbia, Manitoba, Saskatchewan, and the Northwest Territories, common-law partners have the same inheritance rights as married spouses.
The definition of a common-law relationship also varies depending on the context, such as taxes, immigration, or estate planning. For federal tax purposes, 'living common-law' refers to couples who have lived together for 12 continuous months or share a child by birth or adoption. This definition also applies in the context of immigration. As family law falls under provincial law, each province has its own definition of common law in other contexts. For example, most provinces recognise common-law relationships after 1-3 years of continuous cohabitation or if the couple has a child together.
To prove a common-law relationship, couples may need to provide evidence of cohabitation or the duration of the relationship. This can include documents such as shared ownership of residential property, joint leases or rental agreements, bills for shared utility accounts, or important documents showing the same address, such as driver's licenses or insurance policies.
Common-law relationships can impact legal rights such as inheritance, spousal support, and property division. For example, under the Family Law Act (FLA), there is an equal division of financial gains between married spouses, but this does not apply to cohabiting common-law spouses. However, there are remedies available at common law for cohabiting spouses, such as a constructive trust resulting from unjust enrichment.
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Common law in the US
Common law, also known as judicial precedent, judge-made law, or case law, is a body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that common law courts follow precedents established by previous rulings when similar cases arise.
In the US, common law is largely found at the state level, with each state having its own common law rules. After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked to the Massachusetts Reports for authoritative precedents as a basis for their own common law. While there is also a body of federal common law, it is limited to rules created and applied by federal courts in the absence of any controlling federal statute.
Although common law may incorporate certain statutes, it is not a purely common law system as there are many codified statutes that courts must consider. However, the principle of stare decisis remains constant, and prior court decisions interpreting a statute are considered precedent and are therefore binding.
To find common law in the US, one can refer to resources such as Westlaw Precision with CoCounsel, which is a legal research tool that allows for instant filtering of caselaw by fact pattern, motion type, and outcome. Additionally, government and private-sector publishers of law reports, such as West Publishing in Minnesota, provide access to decisions and references to key principles of common law.
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Common law in former British colonies
Common law, which originated in England after the Norman Conquest in 1066, was spread to the British colonies in North America, South Africa, Australia, Asia, and Africa. It is a legal system that is deeply rooted in stare decisis, which means that courts follow precedents established by previous decisions. Common law was adapted to local colonial circumstances, and the degree of integration of indigenous and British common law varied across colonies.
In the North American colonies, for example, the importation of African slaves led to the implementation of European-designed laws regulating master-slave relations. In the Australian settlements, colonizers adopted the practice of terra nullius, or the idea that the land belonged to no one, thus ignoring native land claims. In contrast, in colonial territories with a sparse indigenous population and continuous European immigration, such as the settlement colonies, English common and statutory law were claimed as the sole legal system.
The British East India Company brought English law to its trading posts in India, and as a result, the law of modern-day India, Pakistan, and Bangladesh are largely based on English common law. However, indigenous cases in these colonies were generally handled by local judges according to local customary law, establishing a practice of legal pluralism.
After the American Revolution in 1776, the newly independent United States had to decide whether to adopt common law. This was controversial, as there was widespread distrust and hostility towards anything British at the time. Eventually, the United States federal courts adopted common law, and today, Massachusetts, Minnesota, and other states have their own common law systems.
Many former British colonies, including Barbados, Jamaica, Botswana, Nigeria, Kenya, India, Burma, and Singapore, continue to have legal systems based on common law, although there is diversity in the modern rule of law indicators among these countries. When a former British colony becomes independent, it typically adopts a reception statute, which means that pre-independence common law is retained unless explicitly rejected by the new nation.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs without a statutorily defined process, such as a marriage license or participation in a marriage ceremony. In other words, it is a marriage based on the agreement of the parties involved, followed by cohabitation. The term "common-law marriage" is often used incorrectly to describe cohabitation or other legally formalized relations. It is important to note that not all jurisdictions permit common-law marriage, but those that do not will typically respect the validity of such marriages lawfully entered in another state or country.
In family law, a common-law marriage is a legal and informal marriage. This means that the couple did not have a formal wedding ceremony and did not obtain a marriage license or certificate. However, in states that allow common-law marriage, these couples may have the same rights as a married couple who went through the formal process. Generally, a couple is considered common-law married when they live together for a period of time and hold themselves out to friends, family, and the community as "married". It is important to note that simply cohabiting as an unmarried couple is not sufficient to establish a common-law marriage.
The criteria for a common-law relationship can vary depending on the jurisdiction. In Canada, for example, the definition of common law differs across provinces. Most provinces recognize common-law relationships after 1 to 3 years of continuous cohabitation or if the couple has a child together. In Ontario, a couple is considered to be in a common-law relationship after living together for at least three continuous years, or one year if they have a child together. In British Columbia, the requirement is at least two continuous years of cohabitation or less than two years if they have a child together.
To prove a common-law marriage, certain legal documents may be required, depending on the jurisdiction. These documents can include shared ownership of residential property, joint leases or rental agreements, bills for shared utility accounts, and important documents showing the same address, such as driver's licenses or insurance policies. While there is no statutory requirement for the length of time a couple needs to live together, generally, the longer they live together, the stronger their case is for common-law marriage. Additionally, both partners must have the legal capacity to marry, intend to be married, and hold themselves out as a married couple.
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Common law courts
Common law, also known as judicial precedent, judge-made law, or case law, is primarily developed through judicial decisions instead of statutes. It originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court based in Westminster, London. The common law of England was largely created in the centuries following the Norman Conquest of 1066.
In common law jurisdictions, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must establish the facts. Then, one must locate any relevant statutes and cases, followed by extracting the principles, analogies, and statements by various courts. More recent decisions and decisions of higher courts or legislatures are typically given more weight. Finally, one integrates all the lines drawn and reasons given and determines "what the law is", before applying that law to the facts.
Common law precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports.
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Frequently asked questions
Common law is a body of law based on court decisions rather than codes or statutes. It is largely based on precedent—judicial rulings made in previous similar cases.
Common law courts usually use an adversarial system, in which two sides present their cases to a neutral judge. For example, in criminal cases, the prosecutor and adjudicator are two separate people.
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs when two people capable of being married intend to be married, live together as a married couple, and hold themselves out to the world as a married couple.
With modern legal research tools, it is easier than ever to find relevant caselaw. However, several stages of research and analysis are required to determine "what the law is" in a given situation. Many countries and jurisdictions still rely on common law, so consulting a lawyer in your area is best.
Items that can be used as proof of a common-law relationship include shared ownership of residential property, joint leases or rental agreements, bills for shared utility accounts, and important documents for both partners showing the same address.
