The terms ‘common law marriage’ and ‘common law separation’ are frequently heard but perhaps not always well understood.
In the world today there are two generic forms of law. One of these is called ‘civil law’ and it relates to making legal decisions based upon laws enacted by legislators, governments and politicians.
The other is called ‘common law’ and this relates to the practice of making legal decisions based upon the principle of legal precedent – in other words the previous legal decisions of the courts themselves.
In the vast majority of situations, it isn’t important for members of the public to understand the differences of principle between the two. That can be safely left to lawyers to deal with.
Who Uses What Sort Of Law And When?
Most countries in the world that have legal systems originating in England (later the United Kingdom) probably will operate largely based upon common law as it was, and is, the foundation of Mediaeval English law.
This includes the USA and Canada (there are some exceptions such as Louisiana and Quebec due to their French origins), Australia, New Zealand, India and many other countries around the world that were once part of the British Empire or closely linked to it.
Most of the rest of the world will use civil law – including most of Europe.
What Is A Common Law Marriage?
It isn’t possible to give a precise definition as this may vary depending upon the legal jurisdiction you live in. Some States, for example, do not recognize common law marriages even though their legal system may be founded upon common law.
Expert legal advice is essential to explain what this may mean for you personally.
However, in principle, common law recognizes that a state of union between two people can exist even though a legally sanctioned and licensed ‘wedding ceremony’ may not have taken place.
If a court decides that such a union or ‘common law marriage’ exists between two people, the individuals concerned may have legal obligations to each other.
Can A Same-sex Common Law Marriage Exist?
There are very few legal jurisdictions that acknowledge, even in principle, that a common law same-sex marriage is possible. As common law is precedent based and the concept of same-sex marriages is a relatively recent invention, it has not been fully tested by legal process in most cases.
The best general answer is ‘unclear’ or perhaps ‘unproven’.
What Are The Rights And Obligations Of Partners In A Common Law Marriage?
Once again, specialist legal advice is required on a case-by-case basis to say for sure.
In those jurisdictions where a common law marriage is recognized, the legal position in terms of finance, property and children may be close or even identical to that of a legally performed marriage.
In some States where a common law marriage is not recognized, the position may be far more complicated and both partners could be financially and legally exposed should things subsequently go wrong.
What Is A Common Law Separation Or Divorce?
These terms and concepts may not exist in the legal framework where you live. In many cases common law makes no recognition of a legal state of ‘separation’ or ‘divorce’ in terms of a common law marriage. You are either ‘in’ or you are ‘not’.
In some cases it may be theoretically possible to just ‘walk away’ from a common law marriage. In others you may be able to do so but there may be residual legal issues surrounding property and children that may need to be resolved.
The bottom-line here is that it is very easy to enter into state of common-law marriage that brings with it rights, obligations and mutual entitlements. It can be much harder to terminate such a position quickly, legally, clearly and without ongoing obligations.
What Can I So To Avoid Confusion And Complications?
The legal positions ‘co-habitation’ and ‘common law marriage’ can be very difficult to define and understand. In the first case there is an implication of non-committal combined with commensurate lack of accountability and complexity. In the latter there may be major rights and entitlements.
Whenever you begin a serious relationship with someone you consider to be your partner, particularly if this involves living together and sharing property/finances, it may be a good idea to take qualified legal advice on the position. This may even involve a co-habitation contract defining your current legal status and obligations.
It may not be romantic – but it may be very practical!
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