Keith Mack
Common law is a legal system that relies on past court rulings and decisions to guide future ones. It is one of the two main legal systems used today, the other being civil law. Common law is derived from medieval England and is still in effect in the US and other countries. It allows for the law to be interpreted and adapted to situations not contemplated by the legislature. Common law marriage, also known as non-ceremonial marriage, is a legal framework that grants similar rights to married couples without formal registration. While it is uncommon in the US, several states recognize it if certain requirements are met, such as cohabitation for a specific period, having children, and publicly presenting as a couple.
| Characteristics | Values |
|---|---|
| Jurisdiction | Binding only in a particular jurisdiction |
| Court rulings and decisions | Binding in similar situations |
| Legal precedent | Caselaw |
| Legislative provisions | Not always authorized by the judiciary |
| Common law marriage | Non-ceremonial marriage |
| Common law relationship | Cohabitation, marriage-like relationship, permanence |
| Inheritance | No guarantee of a share of the estate |
| Common law spouse entitlements | Depends on the jurisdiction |
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Common law marriage
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in certain jurisdictions. It is important to note that the requirements for a common-law marriage vary depending on the state or jurisdiction in which the marriage takes place.
In the United States, common-law marriage is recognised in Colorado, Iowa, Kansas, Rhode Island, Oklahoma, and Texas. Montana, South Carolina, and New Hampshire have limited recognition of common-law marriage. To be recognised as a common-law marriage, couples must meet certain requirements, including:
- Both partners must have the legal capacity to marry, typically by being at least 18 years old and of sound mind, and not already married to other people.
- Both partners must intend to be married and behave as a married couple, holding themselves out as a married couple to friends, family, and the public.
- In some states, there may be a requirement for the couple to live together for a certain length of time, although there is no standard across all states.
Ending a common-law marriage is similar to ending a formal marriage. If a common-law couple decides to separate, they must follow the same statutory law as any other marriage to file for divorce. It is important to note that there is no such thing as a "common-law divorce," and court proceedings must be filed within a certain time frame, which varies by state, to prove the existence of the common-law marriage.
The recognition of common-law marriage has evolved over time. In the 1960s, the term "common-law marriage" began to be used to denote unmarried, cohabiting heterosexual relationships, and by the 1970s and 1980s, it had lost its negative connotations. Today, same-sex common-law marriages are recognised in some states, such as Texas, following the Supreme Court's decision in Obergefell v. Hodges.
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Cohabitation
In England and Wales, cohabiting couples do not have the same legal rights and obligations as married couples or civil partnerships, particularly regarding finances, property, and children. For example, cohabiting partners do not automatically inherit from each other unless they owned property jointly or made a will. They may also have to pay inheritance tax on any inheritance received, unlike married couples. Additionally, the surviving partner may have to go to court to claim from the deceased partner's estate if there is not enough left for them to live on.
To protect their interests, cohabiting couples can consider getting a cohabitation agreement, also known as a living together agreement. This can outline what they want to happen if the relationship ends, including the division of property and assets. Having such an agreement in place can make things easier if the couple decides to separate. It is also recommended that cohabiting couples make a will to ensure their partner and their children inherit from them.
In terms of property ownership, property owned before cohabitation remains the property of the original owner, and items purchased generally belong to the person who bought them. Property given by one partner to another usually belongs to the receiver, although this can be difficult to prove. Couples who rent a property together are equally responsible for rent and other tenancy conditions. If one partner decides to move out, they will need to change the tenancy agreement accordingly.
While cohabiting couples do not have the same rights as married couples in many areas, they do have some protections. For example, in the UK, cohabiting couples are protected under the law relating to domestic abuse. Additionally, both married and cohabiting couples can apply to adopt a child jointly. In Canada, couples in marriage-like relationships may be granted many of the rights and responsibilities of marriage, such as being treated as married spouses for taxes and financial claims. Similarly, in Northern Ireland, cohabitants have legal protection in some areas, although their rights and responsibilities are more limited than those of married couples or civil partnerships.
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Legal precedent
Common law systems rely on caselaw and legal precedent to guide their decisions. When determining "what the law is" in a given situation, several stages of research and analysis are required. This involves ascertaining the facts, locating relevant statutes and cases, and extracting the principles, analogies, and statements by various courts. The weight of a decision depends on the recency and authority of the court—higher courts and more recent decisions carry more weight.
For example, in the context of common-law marriage, judges present the precedents that apply to a case, significantly influencing the criteria that a jury uses to interpret it. Common-law marriage, also known as non-ceremonial marriage, is a legal framework that may allow couples to be considered married without formally registering their union. While it is not common in the US, several states still allow it, including Colorado, Iowa, Kansas, and Rhode Island. The requirements for common-law marriage vary by state, but generally include factors such as cohabitation, capacity to marry, intent to be married, and holding themselves out as a married couple.
The concept of legal precedent in common law also extends beyond marriage laws. For instance, in the UK, the common-law offence of "outraging public decency" has been used as a basis for new legislation. In 2019, the Voyeurism (Offences) Act was passed, making "upskirting" a crime punishable by up to two years in prison. This demonstrates how common law, guided by legal precedent, can adapt to new situations and inform the creation of new statutes.
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Jurisdiction
In a common law jurisdiction, several stages of research and analysis are required to determine the applicable law in a given situation. First, the facts of the case must be ascertained. Then, relevant statutes, cases, and legal precedents are located and analysed. The decisions of higher courts or legislatures carry more weight and are typically binding on lower courts within the same jurisdiction. However, the decisions of a court are only binding within a particular jurisdiction, and even within that jurisdiction, some courts may have more authority than others.
The emphasis on precedent in common law jurisdictions means that past decisions shape future rulings. This can have both positive and negative consequences, as outdated or biased precedents may marginalize or disempower certain groups until societal changes prompt a judicial body to overturn them. For example, in England, a common law precedent as late as the 1970s entitled fathers instead of mothers to child custody upon divorce, effectively trapping women in marriages.
Common law jurisdictions differ from civil law jurisdictions in several ways. Civil law systems, prevalent in mainland Europe, rely primarily on comprehensive codes and statutes, while common law systems emphasize caselaw and legal precedent. In civil law jurisdictions, the judiciary may not have the authority to invalidate legislative provisions, and there is generally no doctrine of stare decisis, meaning court decisions are not binding in later cases. Contracts in civil law jurisdictions may also differ in their requirements and structure compared to those in common law jurisdictions.
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Inheritance
In common-law states, a spouse is not automatically entitled to half of the assets obtained throughout the marriage. However, many states will still give the surviving spouse the right to claim a third or even half of the deceased's estate, regardless of the terms of the will. These provisions only apply if the surviving spouse petitions the court for their share.
In three states, inheritance is governed by an elective community property system: Alaska, Kentucky, and Tennessee. In these states, spouses may have an automatic right to an inheritance if they sign a written agreement with their partner or create a community property trust together.
Community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, assets acquired by either spouse during the marriage are considered jointly owned, with each spouse owning a 50% interest in the property.
In the context of inheritance, laws typically pertain to the spouse or partner of the deceased individual. While there are fewer rules regarding children, it is common for them to be able to receive a share of the decedent's property. Most states have laws to protect against accidental disinheritance, such as when a will predates the birth of a child and is not revised before the death of the relative.
In the event that an individual passes away without a will, their estate is considered "in intestacy." A court-appointed administrator will then compile all the deceased's assets, pay any debts or taxes, and distribute what remains to the beneficiaries based on the laws of their state.
In Canada, the term "spouse" is defined as someone who is married outside of British Columbia, Manitoba, Saskatchewan, and the Northwest Territories. In these regions, common-law partners can inherit intestate estates (estates without a will). For all other regions, the common-law partner has no inheritance rights without a will unless they are named as a beneficiary.
In Texas, a common-law spouse can inherit from a decedent's estate, whether the decedent had a will or not. A common-law marriage in Texas can be established through a signed declaration of informal marriage, joint tax returns, insurance policies, employer records, or mail and other correspondence.
In England, if a person dies without a valid will, their estate will be distributed according to intestacy rules, which do not provide for the survivor of a cohabiting couple. However, the surviving cohabitee may be able to make a claim from the deceased's estate under the Inheritance (Provision for Family and Dependants) Act 1975.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes.
A common-law marriage, also known as a non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union. Common-law marriages are not recognized in all jurisdictions, but some states in the US still allow them.
The requirements for a common-law marriage vary depending on the jurisdiction. In some places, couples must live together continuously for a certain period, ranging from one to three years. In other places, having a child together and publicly referring to each other as spouses may also be sufficient.
