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The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution.

The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals.

A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action.

The common-law system prevails in England, the United States, and other countries colonized by England. It is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and Spain. The common-law system is used in all the states of the United States except Louisiana, where French Civil Law combined with English Criminal Law to form a hybrid system. The common-law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails.

Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas. These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral's (maritime), guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas. Equity courts, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged with common-law courts. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system.

Early common-law procedure was governed by a complex system of Pleading, under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England and in the United States during the mid-1800s. A streamlined, simplified form of pleading, known as Code Pleading or notice pleading, was instituted. Code pleading requires only a plain, factual statement of the dispute by the parties and leaves the determination of issues to the court.

Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment.

Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact.

Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws. The judiciary may review legislation, but only to determine whether it conforms to constitutional requirements.

common law n. the traditional unwritten law of England, based on custom and usage which developed over a thousand years before the founding of the United States. The best of the pre-Saxon compendiums of the Common Law was reportedly written by a woman, Queen Martia, wife of a Briton king of a small English kingdom. Together with a book on the "law of the monarchy" by a Duke of Cornwall, Queen Martia's work was translated into the emerging English language by King Alfred (849-899 A.D.). When William the Conqueror arrived in 1066, he combined the best of this Anglo-Saxon law with Norman law, which resulted in the English Common Law, much of which was by custom and precedent rather than by written code. By the 14th Century legal decisions and commentaries on the common law began providing precedents for the courts and lawyers to follow. It did not include the so-called law of equity (chancery) which came from the royal power to order or prohibit specific acts. The common law became the basic law of most states due to the Commentaries on the Laws of England, completed by Sir William Blackstone in 1769, which became every American lawyer's bible. Today almost all common law has been enacted into statutes with modern variations by all the states except Louisiana which is still influenced by the Napoleonic Code. In some states the principles of common law are so basic they are applied without reference to statute.

One alternative to traditional marriage is a common law marriage. While a common law marriage isn't technically a marriage since there's no recognized marriage ceremony, Domestic Partnership Agreement, or marriage license, as an interpersonal status it's still recognized in some states for heterosexual couples. You can show proof of a common law relationship with a notarized affidavit, laying out how long you and your partner have lived together, where you lived, any public announcement of common law marriage, and any previous marriages.

Cohabitation is not enough to qualify you and your partner for a common law marriage: you and your partner must behave like spouses and be qualified to enter a marriage (for example, you must both be of legal age). The IRS recognizes common-law marriages, so you can file your taxes jointly. You and your partner can even use the same last name. However, in the US, no state recognizes same-sex common-law marriages (although some states do recognize same-sex marriages). The states that recognize heterosexual common law marriages are Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, and Utah. Other states recognize common law marriages that were notarized before a certain date: Georgia (pre-1997) Idaho (pre-1996) Ohio (pre-1991) Pennsylvania (pre-2005).

Finally, there's no such thing as a specific common-law divorce: common-law couples have to go through same divorce process as legally married couples.

A Domestic Partnership Agreement allows a same sex couple to dictate their contractual rights as a couple. It is also used to outline the responsibilities of each partner when a couple decides to form a long-term committed relationship, such as how to share income, pay bills and whether property is meant to be jointly or individually owned. If you are part of a heterosexual couple you should use Rocket Lawyer's Cohabitation Agreement.
Use the Domestic Partnership Agreement document if:You are a couple who has decided to form a long-term committed relationship and want to solidify the relationship by outlining the responsibilities of each partner.You want the legal and emotional security that a legal document can provide in protecting your interests should something unexpected occur.You want a document that summarizes what will happen to you and your partner's assets and income in the unfortunate event of separation or death.You want to reduce conflict and distress in case of a breakup by outlining both partners' wishes.

This document outlines the Agreement between two individuals to live together and share expenses while maintaining their individual property rights and remaining unmarried.
Use the Cohabitation Agreement document if:You live with your significant other, share expenses, lease, and other items and would like to remain and be considered by a court as just cohabitants.You plan to live together with your significant other and would like to define the financial terms of that arrangement.

A union of two people not formalized in the customary manner as prescribed by law but created by an agreement to marry followed by Cohabitation.

A fundamental question in marriage is whether the union is legally recognized. This question is important because marriage affects property ownership, rights of survivorship, spousal benefits, and other marital amenities. With so much at stake, marriage has become a matter regulated by law.

In the United States, the law of marriage is reserved to the states and thus governed by state law. All states place restrictions on marriage, such as age requirements and the prohibition of intrafamilial marriage. Further, most states recognize marriage only upon completion of specified procedures. A typical statute requires a witnessed ceremony solemnized by a lawfully authorized person, submission to blood tests, and fulfillment of license requirements. However, in some states, the marital union of a man and a woman can still be achieved in the most simple, time-honored ways.History

Marriage has evolved over the centuries, but some basic features have remained constant. In ancient Rome, it was accomplished by consent of the parties to live together. No forms were required, and no ceremony was necessary. This early Roman model of marriage was displaced when the Catholic Church declared in 1563 that marriages were not valid unless contracted in the presence of a priest and two witnesses. In England, under the Anglican Church, marriage by consent and cohabitation was valid until the passage of Lord Hardwicke's Act in 1753. This act instituted certain requirements for marriage, including the performance of a religious ceremony observed by witnesses.

The American colonies rejected the requirement of a religious ceremony but retained the custom of a ceremony, religious or otherwise. The ancient Roman concept of marriage by agreement and cohabitation was adopted by early American courts as valid under the Common Law.

In the 1800s, state legislatures began to enact laws expressly to prohibit marriage without an observed ceremony and other requirements. Common-law marriage was prohibited in a majority of jurisdictions. However, the Full Faith and Credit Clause of the U.S. Constitution requires all states that prohibit it to nonetheless recognize a common-law marriage created in a jurisdiction that allows it. U.S. Const. art. IV, § 1. Laws in all states require a common-law spouse to obtain a Divorce before remarrying.

Common-law marriage is allowed in fourteen jurisdictions: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and the District of Columbia. The manner in which a state authorizes common-law marriage varies. Pennsylvania maintains a statute that declares that the statutory chapter covering licensed marriage does not affect the recognition of common-law marriage (23 Pa. Const. Stat. Ann. § 1103). In Georgia, the operative marriage statute simply states, "To constitute a valid marriage in this State there must be—1. Parties able to contract; 2. An actual contract; 3. Consummation according to law" (Ga. Code Ann. § 19-3-1).

Several reasons have been offered for recognizing common-law marriage. In some states, including Pennsylvania and Rhode Island, common-law marriage was originally permitted to allow for religious and social freedom. Some state legislatures have noted the private importance of marriage and assailed the insensitivity of governments purporting to regulate such a personal matter. Other states have been reluctant to require licensing and ceremony in consideration of the financial hardship such requirements impose on poor citizens.Features

A common-law marriage has three basic features. When a common-law marriage is challenged, proof of the following elements is critical in most jurisdictions.A present agreement to be married. The parties must announce to each other that they are married from that moment forward. Specific words are not mandated, but there must be evidence of an agreement to be married. Proof may consist of Circumstantial Evidence, including evidence that the partners have cohabitated and held themselves out to the public as being married. However, neither cohabitation nor a public holding out constitutes sufficient proof to establish the formation of a common-law marriage, either by themselves or taken together. An agreement to marry must be proved by the party asserting marriage. Cohabitation. The parties must actually live together in order to support a claim of common-law marriage. Whether maintenance of a separate home by one of the parties will nullify a common-law marriage is a Question of Fact and depends on the circumstances of the particular case. Public representations of marriage. The couple must consistently hold themselves out to the public as married. A married couple is expected to tell people that they are married. They should also file joint tax returns and declare their marriage on other documents, such as applications, leases, and birth certificates. Legal Applications

A challenge to a common-law marriage can come from a variety of sources. For example, an insurance carrier or Pension provider may contest a common-law marriage when one spouse claims benefits by virtue of the marriage. Often, it is one of the purported spouses who challenges the existence of a common-law marriage.

In Flores v. Flores, 847 S.W. 2d 648 (Tex. App. Waco 1993), Peggy Ann Flores sought to prove that she had been married by common law to Albert Flores. Peggy and Albert were married in a ceremony on July 18, 1987, and divorced on March 9, 1989. They continued to live together until November 1990, when Albert moved away to live with his girlfriend, Lisa. Albert and Lisa were married on January 1, 1991.

Peggy filed for a second divorce from Albert on January 31, 1991. In the same proceeding, she applied for custody of their child, Joshua, and Child Support payments from Albert. The County Court, Brazos County, found that a common-law marriage had existed between Peggy and Albert following their 1989 divorce. The county court granted the second divorce and ordered custody and child support payments to Peggy. Albert appealed, arguing in part that there was insufficient evidence to support a finding both that Peggy and Albert had agreed to remarry and that Peggy and Albert had represented to others that they were married.

The Court of Appeals of Texas, Waco, agreed with Albert. The court of appeals opened its opinion by listing the important factual background. According to Peggy's testimony at the 1991 divorce proceeding, she had considered herself married to Albert after the 1989 divorce, and Albert had, on one occasion, introduced her as his wife after the 1989 divorce. Peggy's employer, Irma Ortega, testified that she did not know of the first divorce, that Albert sent gifts and affectionate notes to Peggy, and that Peggy kept a picture of Albert and Joshua at her workplace. Relatives of both Peggy and Albert testified that after the 1989 divorce, the relationship continued much as it had before.

Other testimony revealed that on a visit to a hospital after the divorce, Peggy told hospital personnel that she was single. Albert and Peggy signed a lease together that did not specify their relationship. Peggy used Albert's credit cards, and Albert paid the rent and other bills. They also maintained a joint bank account and carried on a sexual relationship.

Albert testified that Peggy had asked him to stay with her until she got "back on her feet." He also testified that he had moved in with Peggy after the 1989 divorce to help her and that he had informed Lisa that he was living with his former wife "and helping her out."

The court of appeals then addressed whether these facts sufficed to establish a common law marriage in Texas. The court said that while the facts must demonstrate cohabitation by the parties, public representations of marriage by the parties, and an agreement to be married, all three elements need not exist simultaneously for a common-law marriage to exist.

On the issue of whether the couple had agreed to be married again after the 1989 divorce, the court acknowledged that such an agreement can be inferred from cohabitation. However, the court warned that cohabitation is more common than it once was and that cohabitation evidence should be weighed more carefully than it has been in the past. After an examination of the record, the court concluded that there was no direct evidence of an agreement between Albert and Peggy to marry. The evidence showing that Albert and Peggy had lived together and shared resources did not compel a finding of an agreement to be married.

Nor did the evidence support a finding that Peggy and Albert had held themselves out as married. According to the court of appeals, one public representation of marriage did not constitute a public holding out. Other evidence offered by Peggy, such as the joint bank account, was insufficient to support public holding out, the court found. Thus, the court of appeals ultimately reversed the judgment of the county court and ordered that Peggy take nothing but child support payments from her suit.Late Twentieth-Century Developments

During the last 15 years of the twentieth century a growing number of states, counties, and municipalities granted qualified legal recognition to unmarried "domestic partners." Known in some jurisdictions as "reciprocal beneficiaries," unmarried couples who receive legal recognition as domestic partners may be eligible for Health Insurance benefits, life insurance benefits, and child Visitation Rights. Depending on the jurisdiction, domestic partners may also be entitled to hospital visitation rights.

However, in most jurisdictions domestic partners may only inherit from their partners or their partner's family if they are specifically named in the deceased's will. A few states allow domestic partners to inherit from each other or each other's family in the absence of a will, called interstate succession. By contrast, the law of all states that recognize common-law marriage allow both parties to the common-law marriage to inherit under state intestacy laws when either spouse dies without a will.

Also unlike common-law marriages, domestic partners may not typically ask courts to settle their post-relationship property disputes. Nor may domestic partners petition courts for Alimony awards, unless the partners entered a formal agreement for palimony prior to their cohabitation. Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (Cal. 1976). But if partners do enter a palimony agreement, they will generally be enforced, unless during the period of cohabitation the partners resided in Illinois, Georgia, and Tennessee, the three states that have expressly refused to recognize palimony agreements.

Every jurisdiction recognizing domestic partners as a legal entity has its own list of formal requirements that unmarried couples must satisfy before they will be formally recognized as domestic partners. The formal requirements in no two jurisdictions are identical. However, most jurisdictions do share many of the same core requirements.

These core requirements include that both partners must be older than 18 and unmarried, currently live together, apply together before a public official with authority to recognize them as domestic partners, and pay the related fees to be registered. To end a domestic partnership, most jurisdictions allow the couple simply to send a letter to the registrar of domestic partners. The letter must be dated and signed by both partners, and it must specifically request that the domestic partnership be terminated.

Laws in eight states and more than 100 municipalities now provide legal recognition for unmarried couples as domestic partners. This legislation often allows both opposite-sex and same-sex couples to form domestic partnerships, unlike the states that recognize common-law marriage, none of which expressly permits homosexual common-law marriages, and some of which expressly prohibit it. Pursuant to state and local domestic-partner legislation, 157 Fortune 500 companies, 3,960 private employers and unions, and 158 Colleges and Universities were as of mid-2003 providing benefits to domestic partners. Although no nationwide statistics exist, the 2000 census revealed almost 10,000 domestic partners were registered in St. Louis, Missouri, alone, and more than 15,000 same-sex couples were registered as domestic partners in California.Further readings

Jasper, Margaret C. 1994. Marriage and Divorce. Dobbs Ferry, N.Y.: Oceana.

Wadlington, Walter J. 1990. Domestic Relations Manual for Teachers: To Accompany Cases and Materials. 2d. ed. Westbury, N.Y.: Foundation Press.Cross-references

Circumstantial Evidence; Cohabitation; Domestic Partnership Law; Survivorship.West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

common-law marriage n. an agreement between a man and woman to live together as husband and wife without any legal formalities, followed and/or preceded by cohabitation on a regular basis ( usually for seven years). Common-law marriage is recognized in Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah, thereby recognizing a marriage for purposes of giving the other party the rights of a spouse, including inheritance or employee benefits. Such informal partnerships are recognized by some local governments for purposes of the rights of a spouse under employment contracts and pension rights even where the state does not recognize this as a marriage. (See: cohabitation)

The condition before the law, or the social status, of a child whose parents were not married to each other at the time of his or her birth.

The term nonmarital child is also used inter-changeably with illegitimate child.

English Common Law placed harsh penalties on an illegitimate child, denying the child inheritance and property rights. Modern law has given the nonmarital child more rights but still differentiates between the marital and nonmarital status. In addition, a rising level of out-of-wedlock births in the United States has drawn the attention of politicians and policy makers.Common Law and Illegitimacy

A child was considered to be illegitimate at common law if the parents were not married to each other at the time of the child's birth even though the parents were married later.

There was a common-law presumption that a child born of a married woman was legitimate. This presumption was rebuttable, however, upon proof that her husband either was physically incapable of impregnating her or was absent at the time of conception. In addition, a child born of a marriage for which an Annulment was granted was considered illegitimate, since an annulled marriage is void retroactively from its beginning. Furthermore, if a man married a second time while still legally married to his first wife, a child born of the bigamous marriage was illegitimate.Robert L. Johnson's Son? The Rights of Illegitimate Heirs

Robert L. Johnson is an important figure in blues music. Though he recorded only twenty-nine songs before his death in 1938, at age twenty-seven, Johnson's songs, voice, and guitar playing have influenced many great musicians, including Muddy Waters, Keith Richards, and Eric Clapton. The Mississippi bluesman's recordings became a commercial success in the late 1960s, and by 1990 his collected works were released on compact discs.

Johnson married twice. Both wives died before he did and left no children. In 1974 Johnson's half-sister, Carrie Thompson, sold the copyrights of his songs and photographs, asserting that she was entitled to his estate. Upon her death in 1983, her half-sister Annye Anderson inherited her purported rights to Johnson's work.

When Anderson finally probated Johnson's estate in 1991, Claud L. Johnson filed a claim stating that he was the illegitimate son of Johnson and the sole heir of the bluesman. Claud Johnson produced a Mississippi birth certificate from 1931 that lists R. L. Johnson as his father.

But for the U.S. Supreme Court's ruling in Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), Claud Johnson could not have made his claim. Until Trimble Mississippi prohibited illegitimate children from inheriting from their father.

Anderson argued that Claud Johnson's claim should be dismissed because he had waited too long to file it. A county court agreed with Anderson, but the Mississippi Supreme Court reversed the lower court's decision, ruling that the intent of state law was to give the same rights to illegitimate as to legitimate children (In re Estate of Johnson, 1996 WL 138615 [Miss.]). The supreme court sent the case back to the county court, which is to determine whether Claud Johnson is the son of Robert Johnson. If so, he is entitled to Robert Johnson's estate.

At common law an illegitimate child was a fillius nullius (child of no one) and had no parental inheritance rights. This deprivation was based in part on societal and religious beliefs concerning the sanctity of the marital relation-ship, as well as the legal principles that property rights were determined by blood relationships. The legal rights and duties of a person born of married parents could be ascertained more accurately than those of a child with an unknown or disputed father. Public policy in favor of maintaining solid family relationships contributed significantly to the preference for a legitimate child.Modern Law

The harsher aspects of the common law dealing with an illegitimate child have been eliminated, primarily through the application of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. In Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 436 (1968), the Supreme Court ruled that a state statute (La. Civ. Code Ann. Art. 2315) that barred illegitimate children from recovering damages for the Wrongful Death of their mother, but allowed legitimate children to recover in similar circumstances, was invalid because it denied illegitimate children Equal Protection of the law.

The Supreme Court also enhanced the right of an illegitimate child to inherit property. Whereas most states had given legitimate and illegitimate children the same right to inherit property from the mother and her family, a number of states did not allow an illegitimate child to inherit property from the father in the absence of a specific provision in the father's will. In Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), the Supreme Court ruled such provisions in an Illinois statute invalid.

A majority of states now subscribe to the theory that a child born of any union that has the characteristics of a formal marriage relationship is entitled to legitimate status. This theory includes children born of marriages that fail owing to legal technicalities as well as children of void or Voidable marriages.

Some states still recognize the validity of Common-Law Marriage, which takes place when a man and woman cohabit for an extensive period, and hold themselves out to the public as being Husband and Wife even though they were never formally married. In such states children born of such arrangements are considered legitimate. Common-law marriages were a convenient mechanism in the nineteenth century for establishing property rights and legitimating children. Frontier society accepted the economic necessity for permitting such marriages because it was difficult for people on the frontier to obtain a formal marriage license; without common-law marriages, many children would have been declared illegitimate.Legal Presumption of Legitimacy

The presumption of legitimacy is a strong legal presumption because public policy favors legitimacy to preserve stable family groupings. This presumption can be rebutted only if it can be clearly established that the child in question is illegitimate. A child born to a married couple is presumed to be their legitimate offspring in the absence of a clear demonstration that the husband could not possibly be the father.

Legitimation is the process whereby the status of a child is changed from illegitimate to legitimate. Some statutes provide that a child becomes legitimated upon an open Acknowledgment of Paternity by the alleged father. In some states an oral admission is sufficient, but in other states a written statement is required. A majority of states prescribe that an acknowledgment must be coupled with an act in order for the child to be declared legitimate. An adequate act in some states is the marriage of the child's natural parents. Once a child has been determined to be legitimate, he or she is entitled to the same rights and protections as any individual whose legitimacy has never been questioned.Paternity Actions

A paternity suit, or affiliation proceeding, may be brought against a father by an unmarried mother. This civil action is intended not to legitimate the child but to obtain support for the child and often to obtain the payment of bills incident to the pregnancy. Ordinarily, the mother starts the civil lawsuit, but some states allow public authorities to bring a paternity action for the mother if she refuses to do so. If the mother is on Welfare, a paternity action is a vehicle for the local government agency to obtain financial assistance from the father.

A paternity action must start within the time prescribed by the Statute of Limitations,or the mother's right to establish the putative father's paternity and corresponding support obligation will be lost. The evidence needed to establish paternity includes the testimony of the mother, blood and DNA tests, and in some states photographs from which to determine similar facial characteristics of the alleged father and the child.Legal Rights of Fathers

Whether a father acknowledges paternity or is adjudged to be the father in a paternity action, he has more custody rights today than at common law. At common law fathers were assumed to have little concern for the well-being of their illegitimate offspring. Historically, in most jurisdictions, if a child was illegitimate, the child could be adopted with only the consent of his or her natural mother.

This assumption, as embodied in a New York statute (N.Y. Domestic Relations Law § 111), was challenged in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979). The key issue was whether the consent of an unwed biological father had to be obtained before an Adoption could be finalized. The Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of Sex Discrimination.Artificial Insemination

Legitimacy issues have arisen when a child is conceived by Artificial Insemination. This process involves impregnating a woman, without sexual intercourse, with the semen of a donor who might be her husband or another party. Some states adhere to traditional views and consider any child conceived in this manner to be illegitimate, regardless of whether the husband gave his consent to the procedure. Other courts declare that a child is legitimate if the husband consented. A child is most likely considered illegitimate when the mother was unmarried and was artificially inseminated by an unknown donor, and remains unmarried. In most cases of artificial insemination, the father has donated semen anonymously, and his identity is not known.Current Trends

The rate of illegitimate births in the United States has risen sharply since the early 1970s. In the 1940s fewer than five percent of the total births were out of wedlock. By the early 2000s, according to statistics compiled by the Center for Health Statistics at the U.S. Health and Human Services Department, births to unmarried mothers accounted for nearly one-third of all U.S. births.

A union of two people not formalized in the customary manner as prescribed by law but created by an agreement to marry followed by Cohabitation.

A fundamental question in marriage is whether the union is legally recognized. This question is important because marriage affects property ownership, rights of survivorship, spousal benefits, and other marital amenities. With so much at stake, marriage has become a matter regulated by law.

In the United States, the law of marriage is reserved to the states and thus governed by state law. All states place restrictions on marriage, such as age requirements and the prohibition of intrafamilial marriage. Further, most states recognize marriage only upon completion of specified procedures. A typical statute requires a witnessed ceremony solemnized by a lawfully authorized person, submission to blood tests, and fulfillment of license requirements. However, in some states, the marital union of a man and a woman can still be achieved in the most simple, time-honored ways.History

Marriage has evolved over the centuries, but some basic features have remained constant. In ancient Rome, it was accomplished by consent of the parties to live together. No forms were required, and no ceremony was necessary. This early Roman model of marriage was displaced when the Catholic Church declared in 1563 that marriages were not valid unless contracted in the presence of a priest and two witnesses. In England, under the Anglican Church, marriage by consent and cohabitation was valid until the passage of Lord Hardwicke's Act in 1753. This act instituted certain requirements for marriage, including the performance of a religious ceremony observed by witnesses.

The American colonies rejected the requirement of a religious ceremony but retained the custom of a ceremony, religious or otherwise. The ancient Roman concept of marriage by agreement and cohabitation was adopted by early American courts as valid under the Common Law.

In the 1800s, state legislatures began to enact laws expressly to prohibit marriage without an observed ceremony and other requirements. Common-law marriage was prohibited in a majority of jurisdictions. However, the Full Faith and Credit Clause of the U.S. Constitution requires all states that prohibit it to nonetheless recognize a common-law marriage created in a jurisdiction that allows it. U.S. Const. art. IV, § 1. Laws in all states require a common-law spouse to obtain a Divorce before remarrying.

Common-law marriage is allowed in fourteen jurisdictions: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and the District of Columbia. The manner in which a state authorizes common-law marriage varies. Pennsylvania maintains a statute that declares that the statutory chapter covering licensed marriage does not affect the recognition of common-law marriage (23 Pa. Const. Stat. Ann. § 1103). In Georgia, the operative marriage statute simply states, "To constitute a valid marriage in this State there must be—1. Parties able to contract; 2. An actual contract; 3. Consummation according to law" (Ga. Code Ann. § 19-3-1).

Several reasons have been offered for recognizing common-law marriage. In some states, including Pennsylvania and Rhode Island, common-law marriage was originally permitted to allow for religious and social freedom. Some state legislatures have noted the private importance of marriage and assailed the insensitivity of governments purporting to regulate such a personal matter. Other states have been reluctant to require licensing and ceremony in consideration of the financial hardship such requirements impose on poor citizens.Features

A common-law marriage has three basic features. When a common-law marriage is challenged, proof of the following elements is critical in most jurisdictions.A present agreement to be married. The parties must announce to each other that they are married from that moment forward. Specific words are not mandated, but there must be evidence of an agreement to be married. Proof may consist of Circumstantial Evidence, including evidence that the partners have cohabitated and held themselves out to the public as being married. However, neither cohabitation nor a public holding out constitutes sufficient proof to establish the formation of a common-law marriage, either by themselves or taken together. An agreement to marry must be proved by the party asserting marriage. Cohabitation. The parties must actually live together in order to support a claim of common-law marriage. Whether maintenance of a separate home by one of the parties will nullify a common-law marriage is a Question of Fact and depends on the circumstances of the particular case. Public representations of marriage. The couple must consistently hold themselves out to the public as married. A married couple is expected to tell people that they are married. They should also file joint tax returns and declare their marriage on other documents, such as applications, leases, and birth certificates. Legal Applications

A challenge to a common-law marriage can come from a variety of sources. For example, an insurance carrier or Pension provider may contest a common-law marriage when one spouse claims benefits by virtue of the marriage. Often, it is one of the purported spouses who challenges the existence of a common-law marriage.

In Flores v. Flores, 847 S.W. 2d 648 (Tex. App. Waco 1993), Peggy Ann Flores sought to prove that she had been married by common law to Albert Flores. Peggy and Albert were married in a ceremony on July 18, 1987, and divorced on March 9, 1989. They continued to live together until November 1990, when Albert moved away to live with his girlfriend, Lisa. Albert and Lisa were married on January 1, 1991.

Peggy filed for a second divorce from Albert on January 31, 1991. In the same proceeding, she applied for custody of their child, Joshua, and Child Support payments from Albert. The County Court, Brazos County, found that a common-law marriage had existed between Peggy and Albert following their 1989 divorce. The county court granted the second divorce and ordered custody and child support payments to Peggy. Albert appealed, arguing in part that there was insufficient evidence to support a finding both that Peggy and Albert had agreed to remarry and that Peggy and Albert had represented to others that they were married.

The Court of Appeals of Texas, Waco, agreed with Albert. The court of appeals opened its opinion by listing the important factual background. According to Peggy's testimony at the 1991 divorce proceeding, she had considered herself married to Albert after the 1989 divorce, and Albert had, on one occasion, introduced her as his wife after the 1989 divorce. Peggy's employer, Irma Ortega, testified that she did not know of the first divorce, that Albert sent gifts and affectionate notes to Peggy, and that Peggy kept a picture of Albert and Joshua at her workplace. Relatives of both Peggy and Albert testified that after the 1989 divorce, the relationship continued much as it had before.

Other testimony revealed that on a visit to a hospital after the divorce, Peggy told hospital personnel that she was single. Albert and Peggy signed a lease together that did not specify their relationship. Peggy used Albert's credit cards, and Albert paid the rent and other bills. They also maintained a joint bank account and carried on a sexual relationship.

Albert testified that Peggy had asked him to stay with her until she got "back on her feet." He also testified that he had moved in with Peggy after the 1989 divorce to help her and that he had informed Lisa that he was living with his former wife "and helping her out."

The court of appeals then addressed whether these facts sufficed to establish a common law marriage in Texas. The court said that while the facts must demonstrate cohabitation by the parties, public representations of marriage by the parties, and an agreement to be married, all three elements need not exist simultaneously for a common-law marriage to exist.

On the issue of whether the couple had agreed to be married again after the 1989 divorce, the court acknowledged that such an agreement can be inferred from cohabitation. However, the court warned that cohabitation is more common than it once was and that cohabitation evidence should be weighed more carefully than it has been in the past. After an examination of the record, the court concluded that there was no direct evidence of an agreement between Albert and Peggy to marry. The evidence showing that Albert and Peggy had lived together and shared resources did not compel a finding of an agreement to be married.

Nor did the evidence support a finding that Peggy and Albert had held themselves out as married. According to the court of appeals, one public representation of marriage did not constitute a public holding out. Other evidence offered by Peggy, such as the joint bank account, was insufficient to support public holding out, the court found. Thus, the court of appeals ultimately reversed the judgment of the county court and ordered that Peggy take nothing but child support payments from her suit.Late Twentieth-Century Developments

During the last 15 years of the twentieth century a growing number of states, counties, and municipalities granted qualified legal recognition to unmarried "domestic partners." Known in some jurisdictions as "reciprocal beneficiaries," unmarried couples who receive legal recognition as domestic partners may be eligible for Health Insurance benefits, life insurance benefits, and child Visitation Rights. Depending on the jurisdiction, domestic partners may also be entitled to hospital visitation rights.

However, in most jurisdictions domestic partners may only inherit from their partners or their partner's family if they are specifically named in the deceased's will. A few states allow domestic partners to inherit from each other or each other's family in the absence of a will, called interstate succession. By contrast, the law of all states that recognize common-law marriage allow both parties to the common-law marriage to inherit under state intestacy laws when either spouse dies without a will.

Also unlike common-law marriages, domestic partners may not typically ask courts to settle their post-relationship property disputes. Nor may domestic partners petition courts for Alimony awards, unless the partners entered a formal agreement for palimony prior to their cohabitation. Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (Cal. 1976). But if partners do enter a palimony agreement, they will generally be enforced, unless during the period of cohabitation the partners resided in Illinois, Georgia, and Tennessee, the three states that have expressly refused to recognize palimony agreements.

Every jurisdiction recognizing domestic partners as a legal entity has its own list of formal requirements that unmarried couples must satisfy before they will be formally recognized as domestic partners. The formal requirements in no two jurisdictions are identical. However, most jurisdictions do share many of the same core requirements.

These core requirements include that both partners must be older than 18 and unmarried, currently live together, apply together before a public official with authority to recognize them as domestic partners, and pay the related fees to be registered. To end a domestic partnership, most jurisdictions allow the couple simply to send a letter to the registrar of domestic partners. The letter must be dated and signed by both partners, and it must specifically request that the domestic partnership be terminated.

Laws in eight states and more than 100 municipalities now provide legal recognition for unmarried couples as domestic partners. This legislation often allows both opposite-sex and same-sex couples to form domestic partnerships, unlike the states that recognize common-law marriage, none of which expressly permits homosexual common-law marriages, and some of which expressly prohibit it. Pursuant to state and local domestic-partner legislation, 157 Fortune 500 companies, 3,960 private employers and unions, and 158 Colleges and Universities were as of mid-2003 providing benefits to domestic partners. Although no nationwide statistics exist, the 2000 census revealed almost 10,000 domestic partners were registered in St. Louis, Missouri, alone, and more than 15,000 same-sex couples were registered as domestic partners in California.Further readings

Jasper, Margaret C. 1994. Marriage and Divorce. Dobbs Ferry, N.Y.: Oceana.

Wadlington, Walter J. 1990. Domestic Relations Manual for Teachers: To Accompany Cases and Materials. 2d. ed. Westbury, N.Y.: Foundation Press.Cross-references

Circumstantial Evidence; Cohabitation; Domestic Partnership Law; Survivorship.West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

common-law marriage n. an agreement between a man and woman to live together as husband and wife without any legal formalities, followed and/or preceded by cohabitation on a regular basis ( usually for seven years). Common-law marriage is recognized in Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah, thereby recognizing a marriage for purposes of giving the other party the rights of a spouse, including inheritance or employee benefits. Such informal partnerships are recognized by some local governments for purposes of the rights of a spouse under employment contracts and pension rights even where the state does not recognize this as a marriage. (See: cohabitation)

Common law marriage is a marriage that results from the actions of a couple, despite the fact that they have not obtained a marriage license or fulfilled the requirements of a state's statutory marriage laws. This typically means that the couple has cohabitated for a period of time, usually a year or more, while having an agreement to be married and holding themselves out to the world as husband and wife.

Not every state permits common law marriages. For example, Michigan has elimated common law marriage by statute, and no period of cohabitation will result in marriage. At the same time, where a couple became married under the common law of a different state or country, their marriage is likely to be recognized even in a state such as Michigan. The "full faith and credit" rule of the U.S. Constitution ordinarily compels the recognition of a marriage made valid under the laws of a sister state.

As a result of the laws of different states, actions which can result in common law marriage in one state may not provide any legal rights or protections in another. While in one state, a common law spouse might be entitled to a share of the marital estate and even to spousal support, in a state which does not recognize common law marriage that person may not be able to lay claim to jointly acquired assets titled in their partner's name and won't be eligible for alimony or "palimony". Similarly, if cohabitation does not result in common law marriage, one partner may not have any say in how the other partner is treated in the event of disability, may not even have a right to visit their partner in the hospital, and won't have any right to inherit unless expressly named in the partner's will or estate plan. You should also recall that if your common law spouse becomes disabled or dies, it will be up to you to prove the validity of your marriage if your spouse's family excludes you from medical decision-making or tries to exclude you from inheriting property. In short, it pays to know the laws in your state and that if you want your relationship with your partner to be officially recognized, to take the steps necessary to give legal effect to the relationship.

In states which recognize common law marriage, once the requirements have been met the marriage is typically treated in exactly the same manner as any other marriage. By the same token, a valid common law marriage must typically be ended through a formal divorce process. At present, approximately eleven states and the District of Columbia still recognize common law marriages.



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