Common Law

Common law is a type of law that is established through court decisions made by judges, commonly referred to as case law as well. This is different from the traditional means of legislative statutes and laws passed by executive means. Common law is based on the notion that if a court decision is made for a case, it is not fair to have a similar case with identical proceedings to reach a different outcome, and should follow the reasoning that of that prior outcome. However, if a judge discovers that one case is unique from any other case in history, it is the judge has a right and it is generally expected that the judge make law from the outcome of the case in a process called creating precedent. The decision of the case will become precedent and will be the guidelines from which other similar cases are decided. Common law can be overruled by legislative law and when a law is passed, the common laws are usually written out of law.

Common law is widely perceived as more complicated than the simple process described above. This is mostly due to the fact that certain court decisions are only binding within certain jurisdictions, while judges who make precedent only have power in certain jurisdictions. If a common law decision is made by a judge in an appellate court, it is a binding decision for further similar cases in that court along with lower courts in that jurisdiction. Precedent created in lower courts are decidedly non-binding in a lot of situations. The structure of common law is made further complicated by its intercommunication between constitutional law, regulatory law and statutory law.

History of Common Law:
Common law originated in the Middle Ages in England and is commonly practiced in many English speaking nations and countries whom have had ties to the British Empire at some point in their history. Common law is in practice in countries such as the United States, Singapore, Pakistan, India, South Africa, Canada, Ireland, Hong Kong, and Australia. It was between the period of the Norman Conquest of England and the settlement of the thirteen colonies in America that the basic foundation of common law was established. In England, common law began the area in its history where it transferred its system of governments from individually-run states to a more centralized system.

The history of common law in England dates back to when England was divided into eight kingdoms which contained counties and smaller organized subdivisions called “hundreds”, governed by lords or abbeys. Hundreds resolved problems through their court system by means of dispute. Soon, feudal rulers began to charge lords that governed hundreds to run their courts, which would eventually lead to the formation of common laws.

English common law can be seen as the by-product of English centralization and the elimination of independent states by establishing common law followed by all sections of government. In order to eliminate the possibility of differing settlements within court cases, common law was used as a way of standardizing laws and court proceedings. Common law was essentially used as a tool to not only protect a person and his or her land, but also to provide social peace while stabilizing royal power of land.

In the United States, some law traditions were outlawed by the constitution, such as the structure of a monarchy, but other areas of law, such as habeas corpus and jury trials were adopted into the law system. It is often thought of as ironic that a governing body would adopt the law system from a country it fought to maintain its independence from, although it was thought of as the most adequate system of law to be used by citizens and businesses.

Common Law in the Present Day United States:

The federal government of the United States has a special purpose in common law. The federal courts do not make common laws, but rather, they interpret laws created independently by state governments. In the case Erie Railroad Co. v. Tompkins, it was found in federal court that federal common law was absent from authority. This limited the ability of the federal court to create common laws, and its main purpose would remain as a law interpreting body for state laws when an issue proceeds through state law for resolution.
The court decision of Erie Railroad Co. v. Tompkins has been limited by other court decisions, however. The United States federal courts are today allowed to create certain types of federal common law without statutory authority, as long as the common laws are for the general interest of the federal government. Clearfield Trust Co. v. United States led to the decision to allow the federal government to create federal common laws in the interest of federal affairs and with respect to federal power. With the exception of Constitutional situations, Congress has the power to overrule any federally-created common laws.

What is Civil Law and How is it Related to Common Law?
Civil law had always been perceived as the alternative to common law systems. Civil law systems had been in used throughout the last few hundred years by countries within Continental Europe. The differences between common law and civil law have been increasingly narrowed as jurisprudence has taken a vital role in civil law
systems and the increasingly used overruling power of statute law in common law societies.

In the United States, common law has increasingly become more and more important within its law systems. Statutes and codified laws have begun to be replaced by criminal law, commercial law and what is known as procedure (established in the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s). Commercial law is a subset of law that governs the rules and regulations of businesses and transactions completed commercially. Usually when a common law is a established, lawmakers apply it to statutory law by outlining a set of principles and regulations which define it.

What are the Differences Between Common Law and Civil Law?
The most defining characteristic of common law is the basis by which it is presented in court. Two sides of a case present their argument within the court to a judge through what is known as a adversarial system. In civil law systems, by contrast, have a inquisitorial system of protocol, by which a magistrate both establishes evidence and the arguments for both sides of an investigation.
What is an Adversarial System?

An adversarial system is a system of common law that requires several factors to present. First, there is an advocate that represents a party and another group who gives an objective view on the case, such as a jury or judge. The job of the jury or judge is to determine whether or not there is a truth to a case. The adversarial system is two-sided in nature and is usually determined when one side of a case is more effective in convincing a judge or jury that that party is correct based on evidence. In the United States, the only exception when a case is not handled by a adversarial structure is usually when dealing with cases of minor violations, such as traffic violations.

What is an Inquisitorial System?
An inquisitorial system is a legal system by which the court itself plays a major role in gathering facts about a case. In some instances, the judge acts as a fact finder, questioning witnesses and giving the judge a role of inquisitor rather than arbitrator. This is a type of law practiced in the United States for minor misdemeanors when a case does not require two parties to present an argument to a judge or jury. Since many countries have adopted a hybrid system of inquisitorial and adversarial systems, the distinction of both is unrelated to whether or not a country has a civil legal system or a case law system.

There is also a major difference between common law and civil law based on what is known as legal academy. Within common law jurisdictions, treatises develop the decisions of common laws and the principles stated in the writings of the law attempt to explain the results of the case and what conclusions were made. Treatises do not have a final word in common law jurisdictions, and they do not enforce the law. Rather, they are writings that judges and court officials use to locate cases that have relevance related to a current case. Scholarly work is very rarely used and quoted by judges when determining the law, but if it is, it is generally for discovering the history of a law and has it changed over the course of the years. When a case reaches a conclusion, that conclusion is based on relevant statute and common laws. In civil law jurisdictions, scholarly writing is taken as the definitive view of law and courts use law professor literature to help come to decisions in cases.

Common Law

De facto marriage, otherwise known as common law marriage, is a type of legal marriage that is recognized by states that allow it. Common law marriages do not involve any type of ceremony or contract that is written up between the two parties. Rather, marriage is recognized in certain jurisdictions if certain key requirements are met and the couple is guaranteed many of the benefits in a common law marriage that couples receive within a traditional marriage. Once a common law marriage is established, it is much harder to get it dissolved. A petition to a court, like any other normal divorce, is required for one to leave the common law marriage.

The requirements and status of common law marriages vary by the states that allow it. The states and territories allowing common law marriage are Alabama, Colorado, The District of Columbia, Indiana, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas and Utah. While some of the requirements in some states are slightly stricter than other states, they all have the same base guidelines for a common law marriage to be binding.

Requirements for Common Law Marriages:

As mentioned above, common law marriage guidelines are slightly different but the three basic principles must apply to a couple:

1. The couple must hold themselves out to the public as husband and wife;

2. They both must be consenting to marriage;

3. They must both live together in the same home.

Start of Common Law Marriage in the United States:
In the United States, common law marriage was established by the United States Supreme Court case of Meister v. Moore in Michigan. This case ruled that Michigan had not abolished common law marriage by creating a statute pertaining to the solemnization of marriages. Common law marriage is currently legal in eleven states, as well as the District of Columbia. It has since been abolished in twenty-six states, and was never made into law in thirteen other states. The court ultimately decided that it should pass legislation outlawing the idea of common law marriages, but rather held up the decision to the statutes of each state to allow common law marriage.

Same Sex Common Law Marriage:
same sex common law marriages, let alone same sex marriages in general are not recognized by the federal government, and the Federal Defense of Marriage Act allows for states to not recognize same sex marriages from other states. Iowa is the only state that allows for same sex common law marriages.

Income Tax Information for Common Law Marriages:
The IRS does indeed recognize a couple who is in the union of a common law marriage, except for same sex marriages. As long as the state in which the marriage took place does recognize it, than the marriage in the eyes of the IRS is valid. The requirements for filing joint tax returns in a common law marriage is left up to the state in which the couple lives.