Common Law

Definition of "Common law"

Written by

Stephen Anteau

BetterHomes & Gardens Rand Realty

People often use the term in their everyday discourse, yet many wonder what the meaning of common law genuinely implies. Common law refers to a system of jurisprudence based on court decisions instead of statutes passed by a legislative body. Common law centers around principles and precedents decided by the courts in the past, referring to legal issues that the Acts of Parliament do not include.

The historical roots of common law

To fully understand the definition of common law, we have to go back several centuries in time to England. Then, no genuine written laws or statutes existed. Instead, English courts came up with rules and regulations. After a time, courts would follow and adopt the prior courts’ rulings to make it a piece of official legislature. 

According to the common law, courts concluded that one could have a credible claim for a piece of land, for instance, even if no undersigned document existed.

The nature of common law

A group of unwritten laws forms the basis of common law. Though it has historical roots, the common law still has substantial authority in the decision-making process in extraordinary cases, most of all. In such unusual instances, present laws or existing statutes can’t determine the outcome. The common-law system in the United States developed in its colonial period based on the British tradition. Courts in India, New Zealand, Australia, and Canada also practice the common law.

Common law in real estate

What is common law in real estate? Most US states use the common-law property system to decide a real estate’s ownership, especially when it comes to divorce. A particular US state, which adopted the common-law property system, will consider valuables acquired by one member of a married couple to belong to that specific spouse. An exception from this rule is when both spouses signed a contract previously. 

In contrast to common property law, we have the community property system. The latter considers assets and property amassed during a marriage as belonging to both spouses. Partners have to share their possessions acquired during their legal union in the following states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Contact local real estate agents for information on your state’s property law!

The complex nature of common-law marriages

Common-law marriage is in practice to enable couples to acquire relationship status without actually getting married. They live together, act like a married couple before society, yet they don’t possess a marriage license. They must live together for at least one year to be legally declared married without a marriage license. Common-law partners will receive most of the financial benefits of married couples, such as social security and health insurance through their spouses. 

Common law and divorce

Suppose one of the spouses buys real estate alone and doesn’t put the other’s name on the deed. Then, the buyer can sell the property without the other’s consent. 

Typically, a common-law divorce doesn’t exist. Assets one spouse brings into a common-law marriage are theirs to keep. Note! Spouses must consider legally annulling their cohabitation to solve any debts held in both names. Thus, they can resolve any dispute over responsibility for an ex-spouse’s support. 

When it comes to real estate division and child support, common-law spouses hire divorce attorneys and turn to the court, similar to married couples with a license. We recommend preparing a marriage (or prenup) agreement before committing to anyone to safeguard one’s assets and finances.

Find a list of US states allowing common-law marriages such as Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, Utah, and Columbia!