نیازمندیها
Common Law Marriage
Today, most nations follow one of two major legal traditions: common law or civil law. The civil law tradition developed in continental Europe and was applied in the colonies of European imperial powers, such as Spain and Portugal; other countries, such as Russia and Japan, followed in the footsteps of Western European nation-states in hopes of gaining similar economic and political power.
The common law system, or law common to England, is a group of laws that originated and developed in England during the Middle Ages and was applied within British colonies and continents. While the civil law system can be complicated and confusing, the common law system is much simpler. It is largely based on precedent and does involve a comprehensive compilation of legal rules and statutes; decisions are typically based off previously made decisions in similar cases.
The case decisions in a common law legal system become a type of tradition and are maintained over time through the records of the courts and are also historically documented in collections of case law known as yearbooks and reports. They were based on the principle that the rulings made by the King’s courts were made according to the common custom of the land, as opposed to decisions made in local and manorial courts which judged by provincial laws and customs.
The common law is a product of long evolved social values which are judicially articulated and interpreted. It functions as an adversarial system, or a contest between two opposing parties before a judge who moderates. The precedents to be applied in the decision of each new case are determined by the presiding judge. A jury of ordinary people without legal training decides on the facts of any case; the judge then determines the appropriate sentence based on the jury’s verdict.
There are advantages of having a common law legal system, such as efficiency and expediency. As there is already a basic framework for most cases, the judicial process is much faster than that of a civil law system. Also, since decisions are based on precedent, the common law legal system is an easier process to follow; people typically know what to expect and there is an element of predictability. The entire process is easier and more practical, as there are no fixed, lengthy rules, but rather real situations that have previously been resolved. Another argument in favor of a common law system is the equity of it. As the precedents are followed in all cases, all people are treated equally. The same legal principles are applied to all people irrespective of their position, wealth, or power. The common law system has the capacity to balance the individual interests in liberty with the common concerns and interests of the community.
Before modern domestic relations statues, couples became married by a variety of means that developed from custom; a marriage arose through the couple’s conduct, instead of through a ceremony. Today, even though our society now largely relies on civil law, common law is still recognized when referring to marriage in multiple states, including Texas, Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, New Hampshire, and Utah; the legal definition, however, of common-law marriage varies from state to state.
Common law marriage is an alternative to traditional marriage and results from the actions of the couple. Even if a couple has never fulfilled the requirements of a state’s statutory marriage laws, a man and a woman can still be considered spouses without a marriage license or a wedding. It is not as common as many people may believe. Living together does not mean a couple has a common law marriage. There are strict requirements that have to be met for common law marriages to be considered valid.
Typically, to be considered common law married, the couple must have lived together for an extended period of time, intent on getting married, and represent themselves as husband and wife in public, such as using the same last name, referring to one another as husband or wife, or filing a joint tax return. All of these elements must exist at the same time in order for a couple to be considered common law husband and wife.
The Social Security Administration (“SSA”) will only recognize your common-law marriage if the state where you reside recognizes your common-law marriage. In order become eligible for common-law marriage benefits, a couple must go to the SSA office and fill out forms, provide statements from two blood relatives, and provide supporting evidence of the common-law marriage.
While there are many distinctions between a formal marriage and a common-law marriage, the most distinct differences include:
- Common law marriages do not require the license that a form marriage does;
- Common law marriages are not necessarily solemnized, while either a governmental or religious official performs formal marriages;
- There is no public record of a common law marriage, such as a marriage certificate;
- There is a cohabitation requirement but fulfilling that requirement alone does not make a common law marriage;
- There is also a requirement that the couple presents themselves as married; and
- Depending on the jurisdiction, the couple must have cohabited for a minimum length of time.
In Texas, a common law marriage, which is often referred to as an “informal marriage,” must include:
- An agreement to get married between a man and a woman;
- Cohabitation (overnight may be sufficient); and
- The public portrayal of the couple being married.
Also, in Texas, a common law marriage may become official if the couple files for a sworn certificate of common-law marriage. If a couple has a common law marriage in Texas but later relocates to another state, a divorce must be filed in the new state. Also, a 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.
Many states have abolished common law marriage by statute because it was seen as a way of encouraging fraud and condoning vice, debasing conventional marriage, and as no longer necessary with increased access to clergy and justices of the peace. However, the U.S. Constitution requires every state to accord “full faith and credit” to the laws of its sister states. Thus, a common law marriage that is validly contracted in a state where such marriages are legal will be valid even in states where such marriages cannot be contracted and may be contrary to public policy.
There is no such thing as a common law divorce. Once parties are married, regardless of the manner in which their marriage is contracted, they can only be divorced by appropriate means in the place where they ask for the divorce. That means, in all 50 states, divorced can only be granted through court order.
During the a divorce of a common law marriage, property and asset division and child custody are handled in the same manner that they would be in a traditional marriage. Common law marriages that involve business owners or individuals with high assets must also follow traditional divorce procedures. Simply put, when a common law marriage exists, the spouses obtain the same legal treatment given to officially married couples, such as child custody, child support, and divorce.
For information about common law marriages and rights of spouses, please make sure you consult with an attorney.
