Definition of "Common law"

Stephen Anteau real estate agent

Written by

Stephen Anteauelite badge icon

BetterHomes & Gardens Rand Realty

People often use the term in their everyday discourse, yet many wonder what the meaning of common law genuinely implies. Common law refers to a system of jurisprudence based on court decisions instead of statutes passed by a legislative body. Common law centers around principles and precedents decided by the courts in the past, referring to legal issues that the Acts of Parliament do not include.

The historical roots of common law

To fully understand the definition of common law, we have to go back several centuries in time to England. Then, no genuine written laws or statutes existed. Instead, English courts came up with rules and regulations. After a time, courts would follow and adopt the prior courts’ rulings to make it a piece of official legislature. 

According to the common law, courts concluded that one could have a credible claim for a piece of land, for instance, even if no undersigned document existed.

The nature of common law

A group of unwritten laws forms the basis of common law. Though it has historical roots, the common law still has substantial authority in the decision-making process in extraordinary cases, most of all. In such unusual instances, present laws or existing statutes can’t determine the outcome. The common-law system in the United States developed in its colonial period based on the British tradition. Courts in India, New Zealand, Australia, and Canada also practice the common law.

Common law in real estate

What is common law in real estate? Most US states use the common-law property system to decide a real estate’s ownership, especially when it comes to divorce. A particular US state, which adopted the common-law property system, will consider valuables acquired by one member of a married couple to belong to that specific spouse. An exception from this rule is when both spouses signed a contract previously. 

In contrast to common property law, we have the community property system. The latter considers assets and property amassed during a marriage as belonging to both spouses. Partners have to share their possessions acquired during their legal union in the following states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Contact local real estate agents for information on your state’s property law!

The complex nature of common-law marriages

Common-law marriage is in practice to enable couples to acquire relationship status without actually getting married. They live together, act like a married couple before society, yet they don’t possess a marriage license. They must live together for at least one year to be legally declared married without a marriage license. Common-law partners will receive most of the financial benefits of married couples, such as social security and health insurance through their spouses. 

Common law and divorce

Suppose one of the spouses buys real estate alone and doesn’t put the other’s name on the deed. Then, the buyer can sell the property without the other’s consent. 

Typically, a common-law divorce doesn’t exist. Assets one spouse brings into a common-law marriage are theirs to keep. Note! Spouses must consider legally annulling their cohabitation to solve any debts held in both names. Thus, they can resolve any dispute over responsibility for an ex-spouse’s support. 

When it comes to real estate division and child support, common-law spouses hire divorce attorneys and turn to the court, similar to married couples with a license. We recommend preparing a marriage (or prenup) agreement before committing to anyone to safeguard one’s assets and finances.

Find a list of US states allowing common-law marriages such as Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, Utah, and Columbia!

Comments for Common Law

..... ..... said:

i want to know why common law is relevant in real estate.

Aug 18, 2020  23:49:56

Real Estate Agent

Hey! Common law is a body of unwritten law established by the court. Unusual cases that cannot be determined based on existing written laws will be influenced by common law in order to make a decision. For example, in real estate very often you will hear about the common law property system, which is a system used to determine ownership of property during marriage. This is fairly important in distributing wealth after one of the spouses passed away or during a divorce.

Sep 07, 2020  09:10:11
image of a real estate dictionary page

Have a question or comment?

We're here to help.

*** Your email address will remain confidential.


Popular Real Estate Terms

Category of property zoning that designates property to be used for industrial purposes. Industrial zoning allows manufacturing, research and development purposes, factory office and ...

Interior furnishings included in a model unit. Model furnishings are chosen to highlight the features of the model unit often having an interior decorator assist in the design and choice of ...

In real estate and across the nation, you will see different types of house structures, frames, and aspects. One of those is the A-frame type. This is an architectural style that leans ...

A two-by-four used for wall resilience and partitioning. Studs rest on it. ...

The right to demand that title be conveyed upon payment of the purchase price. ...

History of an individual's credit financial transactions including a detailed payment analysis. The creditor history is critical for performing a credit analysis to develop a credit rating. ...

Expert in real estate who has an education in real estate appraisal as well as having significant professional experience. A recognized license may be obtained from the Member Appraisal ...

A lease having two or more joint lessees who share a common liability with a lessor. Under a joint and several liable lease the lessor may demand the full terms of the lease from one or all ...

Site where mobile homes are located. Mobile home parks are often mandated by municipal zoning laws. They provide necessary utilities to the mobile homes often including recreational ...

Popular Real Estate Questions