What is Common Law?
What is common law? In short, common law is law derived from custom, practice of the people, or judicial decisions that have not been passed by the legislature. This varies from statute law which is produced by the legislative body and ratified as law. Common law is generally unwritten, meaning that it does not have a codified version but has simply existed in the community as law for time immemorial. Common law is produced through the application of case law decided previously by judges in a court of law . In simple terms, statutory law is law that is written down and established by the legislative body, while common law is independently created by the judiciary through precedents and customary applications of law. An example of this is an affirmative defense to theft where a family member has been accused of stealing. In Utah, it is common law that a family member cannot be convicted of theft of items owned by another family member when they were in the household.
Is Utah a Common Law State?
Utah does recognize common law as part of its legal system. In fact, Article 1, Section 2 of the Utah Constitution states, in pertinent part: "The common law of England, and the statutes of the territory of Utah that are in force at the time of adoption of this constitution, shall be the rule of decision in all cases not otherwise approved and provided for by this constitution where they are not incompatible with this constitution, and advancing the condition of the people of this state toward a republican form of government." But in Utah, as in most other states, common law rules can be overcome by either constitutional provisions or legislative enactments. In some instances, the courts in Utah have outpaced legislative action and adjudicated certain issues creatively in light of changing social norms and values. For example, Utah law now recognizes both prenuptial agreements (Utah Code 30-9-1 et seq.) and divorce mediation (Utah Code 30-3-19.1(2)). See Pre-marital Agreements, Howard W. Hunter Law Review, V. 11:1, 1986. In Utah, the common law is subordinate to the Constitution of the State of Utah as well as the enactments of the Utah Legislature.
In Utah, Is Common Law Marriage a Legal Reality?
While some states still recognize common law marriage, Utah is not one of them. After some extensive changes to Utah Code, Utah became the 47th state to abolish common law marriage. In Utah, a "common law marriage" or "common law" relationship is no longer the proper legal term to describe a non-ceremonial relationship under Utah law. Utah law now recognizes a non-traditional (non-ceremonial) marriage as a "Cohabitation." Cohabitation is defined in Section 76-7-2 of the Utah Code as "A male and female having the ability to marry[.]" Cohabitation is distinguished from a ceremonial marriage and the Article’s statutory requirements. Cohabiting parties have the same benefits and obligations as couples who have gone through the formal process.
In addition to Utah’s recent changes, cohabitation has other limitations. As stated above, both parties to a cohabiting relationship must be eligible for marriage to another person (i.e., 18 years of age, not related, existing spouse must file a divorce action, etc.). The court will also consider the following factors in determining a legitimate cohabiting relationship, including: The difference between cohabitation and common law marriage may seem trivial, but there are significant legal implications when Texas courts no longer recognize cohabitation. By not recognizing cohabitation, the law no longer recognizes common law spouses. Common law marriages do not exist if parties cohabitate in Utah.
Common Law and Property Rights in Utah
When it comes to property rights, Utah’s common law serves as the foundation for land use issues and disputes. A landowner’s right to enjoy the use of their property is protected in several ways. First, they are presumed to be innocent of breaking the law concerning their property rights until proven otherwise. Second, the lawful use of property cannot be taken by any government entity without just compensation. This rule is called Condemnation in which the government may take private property to be used for public purposes such as utilities, schools, roadways, etc. Other areas of law that are based on the common law affect the legal description of real property for taxation, zoning and anticipated use of the property.
The landowner always has the right to sue for damages if another person unlawfully interferes with their property rights. A compensatory award may recover the damages suffered by an owner for loss of use of property or the amount of expense involved in returning property to a lawful state. A suer must prove causes of action which include: unlawful entry or harm to the land, intentional and careless behavior, slander of title, scire facias, quiet title, waste (intentional or neglectful), and trespass to land .
Common law courts have jurisdiction over both civil and criminal cases and may grant equitable remedies in cases of land, property and money damages, claims over title to land and the respect of franchises. A remedy for wrongs involving property rights is for a court to compel a party to respect contractual obligations (specific performance) under a contract, statue or other duty to another, or to order a person to do or not do what is required by statute (mandamus). A common law court may also issue a writ of review to inquire into the legality of a public officer’s acts to compel them to act in conformity to what the law requires.
An issue that affects the common law in Utah are the laws regarding limitations on actions. Utah has been described as a "stop and feel environment" compared to the English and American common law system. Which means rather than merely looking for an answer in a written document, the court may apply reasonableness to a situation in light of common sense projections of the law. Most actions arise from a breach of a contract that creates a cause of action. The statute of limitations in Utah governing restrictive covenants for the use of land, rights-of-way and easements is twenty years. An easement is a right without profit to enter onto another person’s property for a specific purpose.
The Effect of Common Law on Utah Judicial Findings
The influence of common law on the decisions of judges in Utah cannot be understated. Courts may refer to past cases when making decisions, suggesting that judicial rulings in Utah have been influenced by common law. Any time a court evaluates a past ruling that is similar to the case at hand, they essentially apply the rule developed in common law as precedent when making their decision.
In the state of Utah, a number of laws are based on common law. However, there are many which are not. For example, responding to the threat of misuse of corporal punishment in schools, the Utah legislature passed the Education Corporal Punishment Act of 1982 which specifically prohibits corporal punishment. The law consequently nullified common law concerning the assault and battery of students. In fact, under the law, school faculty members who physically punish a student can be found guilty of a Class C misdemeanor.
Under common law, assault and battery was otherwise legal in every state. Laws mostly targeted the misuse of such actions and not the actions themselves. Even though Utah has a law to prevent school staff from physical punishment or the use of corporal punishment, other forms of assault and battery outside the school setting are still illegal under common law.
Although judges have discretion to rely on common law when making their decisions, most of the time they do not do so. If a judge relies on common law precedent in making a decision, that typically means that either a statute or an administrative code does not address the topic at all, or that there are numerous flaws with the statues concerned. Additionally, if there are no statutes or administrative codes on a topic at all, a situation may arise that leaves a gap in the law. In such instances, a judge may make a decision based on common law.
If a statute or administrative code is in place that addresses the problem at issue, then a judge will only be able to rule on the matter based upon that statute or administrative code. In other words, judges are required to follow statutes and administrative codes in their rulings.
How to Deal With Common Law in Utah
Navigating common law in Utah can seem a bit daunting, but with a few practical tips, it can be a straightforward process. One of the first steps residents or visitors in Utah should take is to clearly define the specific issue they believe could fall under common law. Since many issues that fall under the purview of common law are related to marriages and relationships, individuals should make sure they fully understand their current relationship status before attempting to claim a common law status.
For those who believe they may be in a common law marriage in Utah, learning more about the elements of a common law marriage and being able to cite them is essential. It is important to know that the burden of proof is on the party asserting the validity of a common law marriage, and that establishing these criteria is the key factor in determining whether you have a valid common law marriage. However , for those who have entered into a common law marriage with the full intention of making it permanent, they will be relieved to learn that a common law marriage in Utah carries the same legal weight as a traditional marriage.
If you do not believe that you are in a common law relationship, then it can be just as helpful to identify the elements that indicate you are not in a common law marriage. For example, if you reside in Utah and have entered into a marriage with a formal ceremony, that will typically be considered a valid marriage, without the need for a common law qualification. The most important factor for anyone disputing a common law status in Utah is having evidence to prove their argument.
Individuals experiencing issues related to common law marriage should seek the assistance of an experienced family law attorney in Utah. Issues surrounding common law marriage can be complex and require the support and guidance of someone who is well-versed in Utah’s family law regulations.