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Common Law Marriage: Ett rättsinstitut för samboende
Uppsala University, Humanistisk-samhällsvetenskapliga vetenskapsområdet, Faculty of Law, Department of Law.
2006 (Swedish)Doctoral thesis, monograph (Other academic)Alternative title
Common Law Marriage : Its Origin, Present Status and Future (English)
Abstract [en]

Common Law Marriage is an American legal institution that for cohabiting parties en-tails all the legal effects of marriage, today recognized in Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah. The investigation also includes Ohio, Idaho and Georgia, which during the 1990's repealed the legal institution. Because of applicable conflict of law principles, analyzed here, common law marriage is of interest in all of the states.

Part I of the dissertation examines the origins of the legal institution in the ancient Roman and Medieval Canon law, charting the reception of common law marriage in the American states during the 1800‘s and the 1900's. The underlying reasons for the recep-tion and the criticism it met are also examined.

Part II concerns the current law and is founded on a review of more than 1000 cases spanning from the 1800's until 2004. The absence of a licensing procedure prior to the re-lationship coming into existence makes it difficult to attain the objectives that the regula-tions concerning legal capacity serve (preventing unsuitable relationships as to e.g. age and monogamy). As common law marriage is based on an agreement (consensus facit nuptias), the nature of the marriage contract is analyzed, as well as the object of the mari-tal intent. The application of general contractual law principles as to the agreement is ana-lyzed. As the majority of agreements are not express, the courts' reasoning, when based on certain ”circumstantial evidence” and ”admissions and declaration” they find the exis-tence of an inferred agreement, are analyzed. In addition, the question of how the parties' cohabitation, appearance outwardly and reputation as spouses developed as to necessary requisites in addition to the contract is explored. The application in the case law of the different burdens of proof, the standards of the evidence and legal presumptions are also examined.

Due to the decreasing rate of marriage and the increasing number of unmarried co-habitation in the Western world, the future of common law marriage, as well as the en-tirety of cohabitation law, is discussed in Part III. The analysis concerns both the solu-tions that have been developed in the case law with the application of property law prin-ciples, and the legislation based either on cohabiting or registration in the USA, Northern and Western Europe, Canada, Australia and New Zealand. The use in the future of differ-ent constitutive requisites and their effects is discussed. The arguments for and against common law marriage and cohabitation legislation are also analyzed.

For the purpose of avoiding the problems concerning evidence, protection of integrity and legal certainty that common law marriage and cohabitation legislation entail a new marriage model is presented, limiting the form requirements to a simple registration (all ceremonies become voluntary), increasing the parties' freedom of choice by giving them the possibility and obligation to choose the type of marriage they wish to register. In the same manner as a entrepreneur can choose to conduct his/her own business in the form of a corporation or a partnership, the parties receive the possibility to choose the model that best fits them, for example, a greater or lesser financial community and with varying re-strictions concerning the right to a marital divorce.

Place, publisher, year, edition, pages
Uppsala: Electronic publishing centre , 2006. , 1198 p.
National Category
Law and Society
URN: urn:nbn:se:uu:diva-6938ISBN: 91-506-1870-9OAI: oai:DiVA.org:uu-6938DiVA: diva2:168541
Public defence
2006-05-30, Sal IX, Universitetshuset, Uppsala, 10:15
Available from: 2006-05-16 Created: 2006-05-16Bibliographically approved

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