Cameron Miranda
Common law is a legal system used in several countries today, alongside civil law. It is a body of unwritten laws based on legal precedents and is derived from judicial decisions, rather than statutes or constitutions. Common law is often used as a contrast to Roman-derived civil law, which originated in mainland Europe and relies primarily on codes and statutes. Common law is considered more flexible and adaptable, as it can respond to changes in society and address situations not originally predicted by lawmakers. However, it is important to note that not all jurisdictions interpret common law in the same way. For example, in the context of marriage, the term common-law marriage is often used incorrectly to describe various types of couple relationships, and it may not be legally recognized in the same way across different jurisdictions.
| Characteristics | Values |
|---|---|
| Common law marriage | Not legally recognized as marriages, but may be considered a "domestic partnership", "registered partnership", "conjugal union", or "civil union" |
| Common law marriage recognition | Recognition varies by jurisdiction; most U.S. states have abolished common-law marriage by statute, but it is still recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia |
| Common law in Canada | Varies by province; in Ontario, British Columbia, and New Brunswick, cohabitation for 3 years or 1 year with a child is required; in Saskatchewan, 2 years of cohabitation is required; in Quebec, it is referred to as a "de facto union" and requires 2 years of cohabitation for tax purposes |
| Common law in other countries | The English-speaking Caribbean has statutes similar to those in England due to their colonial past; Israel and Kuwait also have some form of recognition of common-law marriage or partnerships |
| Common law legal system | Differs from civil law systems, which rely on codes and statutes; common law is based on legal precedents and case law, and is more flexible and adaptable to unforeseen situations |
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What You'll Learn
Common-law marriage
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, nor celebrated in a formal civil or religious service. In essence, the act of the couple representing themselves to others as being married and organizing their relationship as if they were married, means they are married.
The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation (whether or not registered) or other legally formalized relations. Although these interpersonal relationships are often called "common-law marriages", they are not legally recognized as marriages. Instead, they may be considered a domestic partnership, registered partnership, conjugal union, or civil union. It is important to note that the legal recognition of these relationships may vary depending on the jurisdiction.
In family law, a common-law marriage is a legal and informal marriage. This means that the married couple did not have a formal wedding ceremony and did not obtain a marriage license or marriage certificate. However, in states that allow common-law marriage, couples in such a marriage typically have the same rights as a married couple who went through a formal marriage process. Generally, a couple is considered to be in a common-law marriage when they live together for a period of time, hold themselves out to friends, family, and the community as "married", and have the legal right or "capacity" to marry.
The criteria for a common-law marriage differ depending on the jurisdiction. For example, 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 the United States, most states have abolished common-law marriage by statute, but it is still recognized in a few states, such as Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. In the context of former British colonies, the islands of the English-speaking Caribbean have statutes concerning common-law marriage similar to those in England due to their colonial past.
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Common law is not the only type of legal system
Common law is 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 often contrasted with Roman-derived civil law, which centres around a comprehensive code of statutes that outline everything from the procedures for handling claims to the punishment for offences. Civil law systems provide clear rules for judges to follow when ruling on disputes.
Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw rather than subjective, personal viewpoints. Given that judges need only follow precedent when making decisions in common law systems, court proceedings can be much shorter, thereby saving everyone time and money.
Civil law originated in mainland Europe, and by the time it was rediscovered in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent. The first common law scholars and judges were often clerics trained in Roman canon law, and their work was heavily influenced by Roman law.
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Common law vs civil law
The term "common law" is often used in contrast with "civil law", with the two systems having fundamentally different processes and forms of reasoning. Common law is derived from judicial decisions, rather than statutes or constitutions, and is considered "unwritten law". It is based on precedent and past judicial decisions are considered legally binding. Common law is more malleable than civil law.
Civil law, on the other hand, is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is considered more prescriptive than common law, with more provisions implied into a contract. It relies on legal codes as the primary source of law, rather than past judicial decisions.
Countries that follow a common law system are typically former British colonies or protectorates, including the United States. In a common law system, judicial decisions are binding and can only be overturned by the same court or through legislation. There is extensive freedom of contract, with few provisions implied into the contract by law.
In a civil law system, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by administrative courts. In a civil law jurisdiction, certain forms of infrastructure projects are referred to by well-defined legal concepts. Civil law codes are more similar to the Restatements of the Law and the Model Penal Code in the United States.
While there are distinct differences between the two systems, there has been a considerable cross-fertilisation of ideas, and the two traditions and sets of foundational principles remain distinct.
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Common law in Canada
Canada's legal system is based on a combination of common law and civil law. Common law, in general, refers to the body of law derived from judicial decisions, rather than from statutes or constitutions. It is flexible and adapts to changing circumstances as judges can announce new legal doctrines or change old ones.
Canada's legal system has its roots in the English and French systems, introduced by explorers and colonists in the 17th and 18th centuries. After the Battle of Quebec in 1759, the country came under English common law, except for Quebec, which follows a civil law system based on the French Code Napoléon (Napoleonic Code). The rest of Canada uses the common law system.
The term "common law" is often used in contrast to Roman-derived "civil law", with fundamental differences in their processes and forms of reasoning. Common law evolved into a system of rules based on precedent, guiding judges in making decisions in similar cases. It cannot be found in any code or body of legislation but only in past decisions.
In the context of Canadian family law, "common law" typically refers to a person living with someone they are not legally married to but are in a conjugal relationship with. Common-law relationships are recognised in certain situations, and the definition can vary depending on the context, such as taxes, immigration, or estate planning. For federal tax purposes, 'living common-law' means couples have been living together for 12 continuous months or share a child by birth or adoption. This definition also applies in the context of immigration.
The recognition of common-law relationships varies across Canada's provinces. Most provinces recognise common-law relationships after 1 to 3 years of continuous cohabitation or if the couple has a child together. For example, 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 Quebec, common-law relationships, often called de facto unions, are recognised for tax purposes after at least two years of continuous cohabitation.
It's important to note that common-law spouses are generally not treated the same as legally married spouses when it comes to inheritance laws in Canada. Outside of certain provinces, common-law partners may not have the same inheritance rights as married spouses and may need to file a claim to the estate, which is subject to a judge's discretion. Therefore, creating a will is essential to ensure a common-law spouse is protected and can inherit according to your wishes.
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Common law in the US
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from judicial decisions rather than statutes or constitutions. Common law is often contrasted with Roman-derived civil law, which originated in mainland Europe and relies on a comprehensive code of statutes. Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous case law rather than subjective viewpoints. It also allows for efficiency, adaptability, and flexibility in the legal system.
In the US, common law has its origins in medieval England, and the country now operates under a dual system of both common and civil law. All US states, except for Louisiana, have implemented reception statutes or adopted common law by judicial opinion. Common law marriage, also known as non-ceremonial marriage, is a legal framework that allows couples to be considered married without formally registering their union. While common law marriage is not common in the US, several states still allow it, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. The criteria for common law marriage vary by state, but generally, couples must live together for a certain length of time and hold themselves out as married to the world.
The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation or other legally formalized relations. These relationships may be legally defined as ""unmarried spouses"" and treated the same as married spouses for certain purposes, such as taxes and financial claims. However, they are not legally recognized as marriages, and the rights and responsibilities of common-law spouses may differ from those of legally married couples.
In the international context, outside the United States, parties in different jurisdictions often choose the law of England and Wales, especially if they are in former British colonies or Commonwealth members. This is because commercial parties value predictability and simplicity in their contractual relations, which common law jurisdictions with a well-developed body of common law can provide. London, for example, is considered the pre-eminent centre for litigation of admiralty cases.
While common law has its advantages, it is important to acknowledge that the traditions of common law have led to the unfair marginalization or disempowerment of certain groups. Past decisions can continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. Therefore, common law is constantly evolving and adapting to changes in society.
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Frequently asked questions
Common law is not the only type of legal system used today. Many countries use another system known as civil law, which originated in mainland Europe. Civil law systems rely primarily on codes and statutes, and centre around a comprehensive code of statutes that outlines everything from procedures to punishments.
A common-law marriage is a legal framework that may allow couples to be considered married without having formally registered their union. However, not all jurisdictions permit common-law marriage. In the US, most states have abolished it, but it is still possible in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia.
In Canada, the criteria for a common-law relationship differ based on the province. In Ontario, a couple must live together for at least three continuous years, or one year if they have a child together. In Quebec, a couple is considered common law for tax purposes after living together for at least two years.
A common-law jurisdiction is a legal system that relies on common law as precedent. Not all countries operate under a common-law system. For example, the US and UK operate under a dual system of both common and civil law.
