Anaya Nolan
Common law is a body of law derived from judicial decisions, rather than from statutes or constitutions. Common-law marriages are marriages that take legal effect without a marriage license or ceremony. Instead, they are based on mutual consent and cohabitation. Common-law marriages are recognized in some jurisdictions, such as certain U.S. states, but not in others, like California. The recognition of common-law marriages can vary, even within a given jurisdiction, as some courts have more authority than others. For example, in the U.S., all jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction. However, the absence of legal registration or notice of the marriage may make it challenging for couples to prove their relationship.
What Constitutes Common Law?
| Characteristics | Values |
|---|---|
| Definition | "The body of law derived from judicial decisions, rather than from statutes or constitutions." |
| Legal Systems | Legal systems that rely on common law as precedent are known as "common law jurisdictions." |
| Authority | Until the early 20th century, common law derived its authority from ancient Anglo-Saxon customs. |
| Dictionary Definition | Bouvier's Law Dictionary and Black's Law Dictionary defined common law as "unwritten law" (lex non scripta) well into the 19th century. |
| William Blackstone's Declaratory Theory | Common law reaffirmed pre-existing customs but did not make new laws. |
| Modern Definition | Notable writers have adopted the modern definition of common law as "case law." |
| Court Decisions | Court decisions that analyze, interpret, and determine the boundaries and distinctions in law promulgated by other bodies are called "interstitial common law." |
| Federal Courts | The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals. |
| Binding Decisions | Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself but are only persuasive authority on sister circuits. |
| Non-Binding Decisions | District court decisions are not binding precedent; they are only persuasive. |
| Reception Statute | A reception statute is a statutory law adopted by former British colonies upon independence, where the new nation adopts pre-independence common law to the extent it is not rejected by the new legislative body or constitution. |
| Examples of Reception Statutes | All U.S. states, except Louisiana, have implemented reception statutes or adopted common law by judicial opinion. Other examples include Canada, Hong Kong, and the English-speaking Caribbean. |
| Common Law Marriage | Common law marriage is a marriage that occurs without a marriage license or ceremony, where two people agree to be married, live together as a married couple, and hold themselves out as a married couple to the world. |
| Recognition of Common Law Marriage | Only a few states recognize common law marriage, including Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, Utah, and Washington, D.C. |
| Dissolution of Common Law Marriage | Common law marriage can only be dissolved through filing for divorce or the death of one spouse. |
| Factors Considered by Courts | Courts consider various types of evidence, such as the couple's references to each other (e.g., husband/wife) and their conduct, to determine the existence of a common law marriage. |
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What You'll Learn
Common law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a marriage that occurs when two people who are legally capable of being married and who intend to be married live together as a married couple and hold themselves out to the world as a married couple. The original concept of a "common-law" marriage is one considered valid by both partners but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service.
Common-law marriage is not recognized in all jurisdictions. However, those that do not permit it will typically respect the validity of such a marriage lawfully entered in another state or country. In the United States, common-law marriage is recognized in seven states and the District of Columbia, and nine states recognize it with some restrictions. Some common-law marriage states include Colorado, the District of Columbia, Iowa, Kansas, Montana, Rhode Island, South Carolina, and Texas.
To be considered a common-law marriage, the couple must meet certain requirements. Firstly, both partners must have the legal right or "capacity" to marry, meaning they must be at least 18 years old, not already married to other people, and of sound mind. Secondly, both partners must intend to be married and behave as a married couple, referring to each other in public as "partner", "spouse", or taking the same last name, for example. Lastly, the couple must live together for a period of time, although there is no statutory requirement for the length of time, and the court considers this on a case-by-case basis.
If there is a dispute about whether a common-law marriage existed, a court will hold an evidentiary hearing to determine the validity of the marriage. The court will consider many types of evidence, such as the couple's references to or labels for one another, and there is no single fact that will prove or disprove a common-law marriage. If the court finds that a common-law marriage existed, the couple will have the same legal rights and duties as any married couple, and to end the marriage, they will need to file for divorce.
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Common law jurisdictions
Common law is defined by Black's Law Dictionary as "the body of law derived from judicial decisions, rather than from statutes or constitutions". Legal systems that rely on common law as precedent are known as "common law jurisdictions". Common law jurisdictions are considerably more complicated than simplified definitions suggest. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority.
The English Court of Common Pleas, established after the Magna Carta in 1215, is an example of a common law jurisdiction. This court tried lawsuits between commoners in which the monarch had no interest.
Reception statutes are another example of common law jurisdictions. These are statutory laws adopted as a former British colony becomes independent. The new nation adopts pre-independence common law to the extent that it is not explicitly rejected by the legislative body or constitution of the new nation. All US states, with the partial exception of Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion. Other examples of reception statutes include the states of the US, Canada and its provinces, and Hong Kong.
Common law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is another example of common law jurisdiction. Common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. The marriage occurs when two people who are legally capable of being married, and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple. Common law marriage is not permitted in all jurisdictions, but those that do not permit it will typically respect the validity of such a marriage lawfully entered in another state or country. As of 2020, there are eight states that recognize common law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah.
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Interstitial common law
Common law, also known as judicial precedent, judge-made law, or case law, is the body of law 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. Common law systems are legal systems that give great weight to judicial precedent and the style of reasoning inherited from the English legal system.
For example, in the United States, the Supreme Court held in 1877 that a Michigan statute regarding the solemnization of marriages did not abolish pre-existing common-law marriage because it did not require statutory solemnization. This interpretation of the statute and its impact on common-law marriage is an example of interstitial common law in action.
In summary, interstitial common law is an essential aspect of the common law system, providing clarity and guidance on the interpretation and application of the law. It helps to ensure the consistent and fair administration of justice, allowing the law to evolve and adapt to new circumstances.
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Common law and constitutional law
Common law is a body of law derived from judicial decisions, rather than from statutes or constitutions. Legal systems that rely on common law as precedent are known as "common law jurisdictions". Common law is considerably more complicated in practice than in theory. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. Interactions between common law, constitutional law, statutory law, and regulatory law also give rise to considerable complexity.
Constitutional law, on the other hand, is subject to federal jurisdiction. The US Constitution is an example of a fundamental law that is interpreted by the federal courts. The US federal courts are divided into twelve regional circuits, each with a circuit court of appeals. Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but are only persuasive authority on sister circuits.
In the US, all states with the partial exception of Louisiana have either implemented reception statutes or adopted common law by judicial opinion. A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts pre-independence common law to the extent that it is not explicitly rejected by the legislative body or constitution of the new nation.
The complexity of the interaction between common law and constitutional law is highlighted by Oliver Wendell Holmes Jr., who cautioned that "the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions".
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Common law in former British colonies
Common law, which is derived from judicial decisions rather than statutes or constitutions, was spread to British colonies across the world. The British Empire brought the English legal system to its colonies in the British Isles, including Wales and Ireland, and later to overseas colonies in America, Asia, Africa, and the Pacific. Common law was first established in England following the Norman Conquest in 1066, creating a unified legal system that gradually replaced local folk and manorial courts.
British colonial expansion brought English common law to its colonies, where it was adapted to local circumstances. For example, in North American colonies, the importation of African slaves led to the implementation of European-designed laws regulating master-slave relations. In Australian colonies, the practice of terra nullius was adopted, ignoring native land claims and securing European land titles. In Asian colonies, the British East India Company brought English law to its trading posts and factories.
The transplantation of common law to colonial territories provided the institutional tools necessary for strong development outcomes. However, the impact of colonial rule on the rule of law in former colonies has been diverse. For example, a study examined the colonial experiences of eight formerly British-controlled territories (Barbados, Jamaica, Botswana, Nigeria, Kenya, India, Burma, and Singapore) and found that the processes and policies of colonial rule influenced their contemporary rule of law outcomes.
When former British colonies become independent, they often adopt a reception statute, which is a statutory law that allows the new nation to adopt pre-independence common law to the extent that it does not conflict with the new legislative body or constitution. This ensures that the new country has a predictable and extensive body of law to govern its citizens and businesses. Many former colonies, including the United States, Canada, and Hong Kong, have implemented reception statutes or adopted common law by judicial opinion.
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. Outside the United States, parties in different jurisdictions often choose the law of England and Wales, particularly if they are in former British colonies or members of the Commonwealth.
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Frequently asked questions
Common law is a body of law derived from judicial decisions, rather than from statutes or constitutions.
Common-law marriage is a marriage that occurs between two people who are legally capable of being married, who intend to be married, and who live together as a married couple. Common-law marriage does not require a marriage license or ceremony.
A common-law marriage is constituted by a mutual agreement between both parties to be married, followed by cohabitation and holding themselves out to the world as a married couple.
The requirements for a common-law marriage vary depending on the jurisdiction, but typically include a mutual agreement or consent to enter into the legal and social institution of marriage, followed by conduct that demonstrates that agreement.
As of March 11, 2020, there are eight states that recognize common-law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Washington, D.C. also recognizes common-law marriage.
