Common-Law Marriage

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husband and wife

husband and wife, the legal aspects of the married state (for the sociological aspects, see marriage).

The Marriage Contract

Marriage is a contractual relationship between a man and a woman that vests the parties with a new legal status. Most of the requisites for other binding contracts must also be present in the marriage contract. Thus, the parties must have been competent to act, must have acted free from duress, and must not have made fraudulent representations; otherwise the contract may be dissolved by a judicial decree of nullity of marriage. However, marriage is unlike other contractual relationships in that it creates a status that may not be terminated at will by the parties, but only by a court, as by a divorce. It is thus often said that the state is a third party to any marriage. (Some European nations legally recognize partnerships that, though having some of the legal rights of marriage, are much easier to dissolve.)

With few exceptions, a marriage validly contracted in one place is recognized in others. Thus a common-law marriage—a marriage solely by the consent and behavior of the parties, without ceremony or registration—entered into in a state where such unions are valid will be deemed binding in states where a license to marry and a civil or religious solemnization are required. At an early period, common-law marriages were frequent in Europe; the difficulties arising from them—e.g., the doubtful legitimacy of children—led to their complete prohibition in Roman Catholic countries by the Council of Trent. Although common-law marriage was abolished in England in 1753, it remained lawful in Scotland and in the American colonies. Today, only 11 U.S. states permit the creation of common-law marriages within their borders. A few states have enacted laws permitting covenant marriages, in which premarital counseling is required and extra restrictions make divorce more difficult, but while such marriages are recognized by other states, the limits they place on divorce may not be, because the U.S. Supreme Court has established that the rules governing divorce are determined by the laws of the state of residence at the time of divorce and not of marriage.

Same-sex marriages, with all but a few of the legal aspects of traditional marriages, have recently been recognized in a few European nations. In the United States, local officials have from time to time registered same-sex couples or solemnized their marriages. At present, however, Vermont is the only state that grants any official recognition to a homosexual union. In some places local authorities have established “domestic partner” laws, granted “certificates of cohabitation,” or undertaken similar steps in order to afford homosexual (and some other) couples various rights society reserves for marital partners.

Evolution of Marriage Law

The former Anglo-American law of marriage was chiefly characterized by the view that husband and wife are one legal personality, for whom the husband acts. Accordingly, the husband determined the marital domicile and was the dominant figure in the relation of parent and child. Nearly all the property of the wife passed to his absolute control for the duration of the marriage. The wife ordinarily could not make separate contracts, but if her husband refused support to her or to the children, she might pledge his credit to supply needs. After the death of a spouse, the survivor usually enjoyed a partial interest in the deceased's property. The wife's dower entitled her to one third of the husband's property on his death; curtesy, a similar right of the husband in the wife's property, accrued only if children had been born of the marriage.

In time, the equity courts recognized the wife's right during her husband's lifetime to a separate property in trust established for her benefit. By the late 19th cent., the need for a separate trust property disappeared, for Great Britain and all the American states adopted “married women's property” statutes, giving wives complete control over their property and their contracts. Most states provided that, in place of dower and curtesy, a surviving spouse was entitled to a certain share in the estate of the deceased spouse. A few states, following the Spanish law, recognized community property, whereby all property acquired during the marriage is owned by both husband and wife and is divided equally on the dissolution of the marriage.

Other features of the older laws on marriage have persisted, but many have been modified or eliminated. Certain old civil actions for injury to the marital relation that were once available only to the husband, such as actions for criminal conversation (adultery), actions for loss of consortium (marital services) because of physical injury to the wife, and for alienation of the wife's affections, are now either extended to the wife or denied to both parties.

Bibliography

See J. Henslin, Marriage and Family in a Changing Society (2d ed. 1985).

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The following article is from The Great Soviet Encyclopedia (1979). It might be outdated or ideologically biased.

Common-Law Marriage

 

marital relations not formalized in the manner provided by law (see).

In the USSR, common-law marriage does not give rise to the marital rights and duties provided by legislation on marriage and the family. From 1927 through July 8, 1944, the legislation on marriage and the family of the RSFSR and other Union republics, except the Azerbaijan, Tadzhik, Uzbek, and Ukrainian SSR’s, allowed for recognition by judicial procedure of the legal force of a common-law marriage; children born of such a marriage had the same rights and duties with respect to their parents as children born of a registered marriage.

After the adoption of the Decree of the Presidium of the Supreme Soviet of the USSR of July 8, 1944, which provided for the obligatory registration of marriage, the court was not permitted to recognize common-law marital relations that were formed after July 8, 1944. Persons who had entered into a common-law marriage before the issuance of the decree were given the right to register the marriage with an indication of the time they had been living together. In case one of the parties had died or been declared missing in action during wartime, the other party had the right to apply to the court for recognition of the dead or missing person as the spouse.

The Great Soviet Encyclopedia, 3rd Edition (1970-1979). © 2010 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
Bessie Walker began her statement by explaining that "Rogers Matthews, who I was living with, for 7 years, as man and wife ..." (37) Valaria Taylor noted that she and her victim, Edward Beco, her common-law husband, "were living together at #2845 Belmont Place as man and wife." (38) Similarly, Eugene Morris, who murdered his domestic partner, told a police officer that "for the past 3 years I have been living with Hazel Long at 1734 Calliope Street, as Common-Law Man and Wife." (39)
Lyndamour Paxton, 31, a restaurant worker arrested on a separate charge of violating the immigration law, and her common-law husband, a 32-year-old chief petty officer with the U.S.
When she was twenty-one years old, soldiers killed her common-law husband - also a guerrilla.
In another recent incident, a Texas woman allegedly assaulted her common-law husband after he didn't respond when she asked if she was pretty.
In the complaint, Lorna accused her estranged common-law husband Vic Pedaso of psychological violence in violation of Section 5 of Republic Act (RA) 9262, also known as the Violence Against Women and Children Act.
Sinas said police got information Jocelyn's common-law husband headed the operation while detained at the New Bilibid Prison in Muntinlupa.
But in reality she was living with her common-law husband, Jeffrey Beel.
Likewise many unmarried couples, who have cohabited together for years may assume there is no need for a will as they are classed as common-law husband and wife.
The pair bond while her common-law husband Bobby (David Morrissey) watches with mounting concern because Julia's giggles and bright red lipstick conceal a tendency to fall into deep depression.
However, the value of that particular formality becomes frighteningly clear when a relationship breaks down and people discover that the term common-law husband or wife has no legal basis.
He was recalled to prison to continue serving the life sentence imposed in 1988 for the murder of his mother and her common-law husband.
During the initial telephone conversation, Jones claimed her name was Mrs Furber - her common-law husband's surname.