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The basics of Common Law

Common Law, sometimes called ‘case law’ or ‘judge-made law’ goes way back. It really started to find its feet after the Norman Conquest of 1066, replacing local law with a law for the whole of England. Before then, there was no single national legal system, just a mass of rules passed on by word of mouth, which varied depending on where you were.

Common Law is based on the principles provided by past court decisions, unlike legislation, which is based on Acts of Parliament. 

So, in essence, Common Law (and you’re going to have to take a deep breath for this) is:

‘that part of the law of England formulated, developed and administered by the old Common Law courts, based originally on the common customs of the country, and unwritten. It is opposed to equity (the body of rules administered by the Court of Chancery, to statute law (the law laid down in Acts of Parliament), to special law (the law administered in special courts such as ecclesiastical law, and the law merchant), and to the civil law (the law of Rome).’

Or here’s another way of defining it: ‘the common sense of the community, crystallised and formulated by our forefathers’.  (Source: Osborne’s Concise Law Dictionary, Ninth edition.)

The problem here is that if ‘common sense’ was black and white, then ‘Common Law’ would be proper law, passed by Parliament and everything. But everyone, including our forefathers it seems, have different opinions on what is ‘common sense’.

So legally speaking and legally standing (in England and Wales) Common Law doesn’t actually mean anything of real substance, unless we’re talking about Common Law in relation to equity and trusts

So unfortunately, being a ‘Common-Law wife’ or ‘Common-Law husband’ doesn’t give you many legal rights.

What is Common Law marriage?

Common Law marriage, or being a Common-Law husband or wife, are all informal terms used to describe the relationship of a man and woman who live together, without having gone through a proper and legal marriage ceremony (or the huge party that follows). In the courts of England and Wales, these terms have absolutely no legal significance in their everyday sense.

Which means that even though you are living with someone as Common-Law husband or wife (not married), your partner cannot inherit from you, unless you include them in your Will of course.

What is a Civil Partnership?

Civil Partnerships do not fall under Common Law.

The Civil Partnership Act of 2004 means that same-sex couples who are granted a civil partnership, now have the same legal rights and responsibilities of an opposite-sex couples in a civil marriage.

Civil partners (under the law of England and Wales) are legally entitled to the following:

  • The same property rights
  • Tenancy rights
  • The ability to get parental responsibility for a partner's children
  • The reasonable maintenance of one's partner and their children
  • Full life insurance recognition
  • Next of kin rights in hospitals
  • The same exemption as married couples on inheritance tax, social security and pension benefits

There is also a formal process for dissolving a Civil Partnership that is similar to Divorce.

If you are in any of the above relationships and still unsure about your legal rights, or uncertain of your legal standing, then we recommend you contact a qualified solicitor to clarify your rights. 

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. 

Published on 23rd January 2013
(Last updated 28th March 2018)

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