Kara Sears
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means to stand by things decided. It originated in England and is currently practised in the US, the UK, Australia, Canada, Hong Kong, India, and New Zealand. Common law is used to decide unusual cases where existing statutes or written rules of law do not apply. It is also the basis for the concept of common-law marriage, which grants similar rights to married couples to those who are not officially married.
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What You'll Learn
Common law marriage
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is deeply rooted in stare decisis, which means "to stand by things decided".
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 or participated in a marriage ceremony. In other words, it is a marriage that takes legal effect without the prerequisites of a marriage license. 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 family law, a common-law marriage is a legal marriage and an informal marriage. This means that the married couple never had a formal wedding ceremony and never obtained a marriage license or marriage certificate. In the United States, common-law marriage has existed since the colonial period when America was a colony of England. Common-law marriage is currently recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. Additionally, nine states recognize common-law marriage with some restrictions.
Generally, a married couple is considered to be in a common-law marriage when they live together for a period of time (cohabitation), hold themselves out to friends, family, and the community as "married", and have the legal right or "capacity" to marry. Both partners must intend to be married and behave as a married couple. However, cohabitation as an unmarried couple is not sufficient to establish a common-law marriage. The court considers the amount of time a couple lives together on a case-by-case basis, and the longer the better.
In Canada, while some provinces may grant couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. Similarly, in Israel, courts and statutes have recognized common-law relationships, granting couples virtually the same benefits and privileges as married couples.
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Common law in civil cases
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". In other words, common 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 presiding judge determines which precedents to apply in deciding each new case.
The common law system is less prescriptive than a civil law system. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. The goal of common law is to establish consistent outcomes by applying the same standards of interpretation. However, in some instances, precedent depends on the case-by-case traditions of individual jurisdictions, resulting in elements of common law differing between districts.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case.
Common law is used in civil cases, as distinct from criminal cases, to compensate someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence. It is also used to develop the body of law recognizing and regulating contracts.
The United States, England, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom all have legal systems that are based on common law. Many of these countries were former British colonies or protectorates.
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Common law in the US
The US operates under a dual system of both common and civil law. The courts, for example, operate under common law. The concept of common-law marriage is one example of common law in action today. Common-law marriage acknowledges similar rights to those of couples with a marriage license for couples that are not officially married if certain conditions are met. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law is derived from judicial decisions rather than statutes. It is based on precedent, or judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in each new case. In a "case of first impression" with no precedent or clear legislative guidance, judges can resolve the issue and establish a new precedent.
The common law system in the US evolved from a British tradition that spread to North America during the 17th and 18th centuries. It originated in medieval England and was first institutionalized by King Henry II in 1154. The doctrine of precedent developed during the 12th and 13th centuries, based on tradition, custom, and precedent. In the US, legislatures at the state level often codify common law rules from the courts of their state, either to give the rule the permanence of a statute or to modify or replace it.
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Common law in the UK
Common law, also known as case 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 deeply rooted in stare decisis, which means "to stand by things decided". In other words, courts follow precedents established by previous decisions.
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 was first institutionalized by Henry II in 1154, who created a unified system of law "common" to the country. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent.
English criminal law derives its main principles from common law. The main elements of a crime are the actus reus (doing something which is criminally prohibited) and a mens rea (having the requisite criminal state of mind, usually intention or recklessness). Common law is also used in civil cases, which are usually started in the County Court.
The UK operates under a dual system of both common and civil law. The UK comprises three major legal systems: those of England and Wales, Scotland, and Northern Ireland. The common-law system in England has directly influenced that of Wales and Ireland, but only partially influenced the distinct legal system in Scotland.
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Common law in Scotland
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 known as case law or judge-made law. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions.
In Scotland, common law is an important legal source, especially in criminal law, where a large body of legal precedent has been developed. Sources of common law in Scotland are the decisions of the Scottish courts and certain rulings of the Supreme Court of the United Kingdom (including its predecessor, the House of Lords). The influence that English-trained judges have had on the common law of Scotland through rulings of the Supreme Court has been significant, especially in areas where conformity across the United Kingdom was required for pragmatic reasons.
Historically, the Scottish common law differed in that the use of precedent was subject to the courts seeking to discover the principle that justifies a law, rather than searching for an example as a precedent. Principles of natural justice and fairness have always played a role in Scots Law. From the 19th century, the Scottish approach to precedent developed into a stare decisis akin to that already established in England, reflecting a narrower, more modern application of case law.
The legal system of Scotland has been influenced by various historical sources, including Roman law, Anglo-Norman and continental legal traditions, and feudal concepts. Since the union with England in 1707, Scotland has shared a legislature with England and Wales, and while Scotland retained a fundamentally different legal system, English influence has been exerted on Scots law. Scottish law also recognises four sources of law: legislation, legal precedent, specific academic writings, and custom.
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Frequently asked questions
Status-based common law refers to a legal framework that grants couples who are cohabiting but not legally married the same rights as married couples. This includes rights to inheritance, estate planning, and tax benefits.
The requirements for a common-law marriage vary by jurisdiction, but typically include cohabitation, living together as a family unit for an extended period, and holding themselves out to the world as a married couple. Some states may also require both partners to be at least 18 years old and mentally capable of understanding and consenting to the marriage.
A common-law marriage differs from a traditional marriage in that it does not require a marriage license or a formal ceremony. Instead, a common-law marriage is formed through the couple's actions and mutual agreement to be married.
Common-law marriage is currently recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. Several other states, including Florida, Georgia, Ohio, and Pennsylvania, recognize common-law marriages established before a specific date.
