What is Common Law?
Common law refers to a body of unwritten laws based on legal precedents established by the courts. It can be interpreted or expanded by judges to address situations not expressly covered by statutory law. This type of law forms an inseparable part of the jurisprudence of almost all of the states of the United States, including New Jersey, and is the primary source of law for the majority of contract cases filed.
Historically, common law was established by judges who would render decisions based on the customs of the people or the decisions made by previous judges in similar cases. These decisions would then be used as precedents to decide similar current or future cases. These principles would then be further refined over time as individual judicial decisions were made in response to new and different circumstances.
Statutory laws are laws that are enacted by the legislative bodies of the state or federal governments. Judges generally do not play a role in the creation of statutory law , and while they may have the ability to interpret the resulting statute, they must be more closely confined to its terms. Statutes must be publically promulgated before they become effective, unlike common law.
While the relationship between statutory and common law can be complex, statutory law frequently modifies common law procedures. In some instances, statutes can completely replace previously established common law principles if it passes a law that specifically covers the same issue addressed by common law. Statute-based provisions, however, usually do not take precedence over any aspects of common law that are not specifically addressed in the statute.
Is There Common Law Marriage in New Jersey?
The common law refers to a set of legal rules, customs and usages which are based on the practices of people living in the USA and England. Common law is also referred to as judge-made law or case law since it evolves from decisions made by judges in their court rulings. It does not change with modern day global culture and also varies little between states.
One common misconception within New Jersey is that common law marriages exist in our state. The truth is that New Jersey does not recognize or perform common law marriages. The state actually abolished common law marriages in 1939. A common law marriage is a non-ceremonial marriage between two people who have been living together for a specific amount of time and share the intent to be married. Pennsylvania and Delaware are two of the few remaining states which recognize common law marriages. New Jersey no longer accepts testimony regarding marriage via common law. Therefore, an attorney may not offer testimony into a New Jersey court that two people residing in New Jersey are common law married couples. Only 11 states and the District of Columbia still allow for common law marriages:
While New Jersey does not recognize common law marriages, it does recognize them if they originate in another state where common law marriages are accepted. Therefore, if you were to move to New Jersey with the intention of obtaining a common law marriage, that marriage would not be recognized in New Jersey.
New Jersey’s Common Law Matrix
Common law influences many of New Jersey’s legal decisions, as evidenced by the numerous cases which discuss the common law standard. For example, in Wyrsch v. Rodin [230 N.J.Super. 215 (Law Div. 1988)], the trial court used the common law negligence standard in granting a defendant’s motion for a directed verdict. The court stated the following: "Without a duty, there can be no liability in the absence of special circumstances . . . Plaintiff has not established any special circumstances".
In Costa v. Josey [252 N.J.Super. 165 (App. Div. 1990)], the Appellate Division relied on common law negligence principles in finding that the dangers created by the defendant along a highway supported a jury finding of negligence. Specifically, the Appellate Division noted that "[a]n unnatural accumulation of water may be a dangerous condition. . ."
Ricci v. Abbotts Distillery Co., Inc. [216 N.J.Super. 30 (App. Div. 1987)] the Appellate Division discussed the common law definition of strict products liability under the Restatement (Second) of Torts § 402A, which governs standard New Jersey strict products liability claims.
Common Law and Civil Law Jurisdiction in New Jersey
The term "common law" describes the body of unwritten laws developed in England from judicial decisions and customs. This system became a basis for many laws in the United States. New Jersey is a common law state, which means its legal system is based on precedent, or prior rulings by judges in similar cases. The common law universe rests on a fundamental principle: Namely, that like cases should be treated alike in order to ensure fairness and consistency in the law. Thus, where an issue presents itself in conflict with a common law precedent, a court must fashion a judgment that is consistent with the prior rulings that the court is obliged to follow. Practically speaking, this means that in most instances a New Jersey court will rely on an earlier (and controlling) legal precedent to guide its decision. If one cannot follow a controlling precedent, then a New Jersey court will usually look to a precedent from another jurisdiction that is similar as a model to implement in rendering its decision. For example, a common law state like New Jersey will have a body of contract law that is largely derived from common law decisions. There will be precedent in case law about offer and acceptance and whether or not a contract exists. In a contract dispute , a New Jersey court must decide how to apply the law. If the facts of the new contract case are similar to a case that was previously decided by a New Jersey court, then there is less room for interpretation. However, if the facts of the new case are different from what the New Jersey courts have previously decided, then the court may have to interpret the law by looking at other New Jersey precedents or legal precedents from other state courts. This is often the case with subjects that have not been decided by New Jersey courts. Civil law systems are different, comprising a collection of written legal codes. In a civil law system, laws are typically classified by subject. For example, Massachusetts follows a civil law system for contracts, whereas New Jersey follows a common law system. The biggest difference between civil law and common law systems is that in common law systems, legal precedent is very important. Common law systems are based on judge-made law. Civil law systems have statutes that are the most important source of law. In civil law systems, precedent plays a lesser role than in common law states.
Common Law Misstatements in New Jersey
Understanding Common Law in New Jersey: The Myths and the Facts
Another common misunderstanding about the common law is related to how it works to create legal obligations between individuals. A family law example to complicate the picture in some cases related to this could be a father who lives with his girlfriend. They both contribute financially and otherwise to the household, and he just assumes that if he and his girlfriend were to separate, he would be standing in a good position. The truth is that New Jersey is an equitable distribution state, which means that property acquired during the marriage is subject to division between the parties, whether or not the couple is married when the assets are acquired. So if the father doesn’t know any better, even if his name is on the deed to the home, his girlfriend could end up with all of the equity in the home if he isn’t advised correctly and if he doesn’t take the appropriate steps in the case. For example, he could take a position to have the residence put in everyone’s name, and then if it becomes an issue during litigation, if he can prove some sort of agreement between him and his girlfriend regarding the house, he could potentially be protected.
Related to employment, employees sometimes misunderstand the requirements to establish a breach of contract against an employer. An employee might think that because her employer changed her pay from $35.00 to $30.00 an hour overnight, without telling her about the change, that she has an iron-clad employment contract, when in fact, even as an at-will employee, she could easily be susceptible to the reduced rate of pay. In order to recover for a breach of contract in New Jersey, you must show both that a contract was entered into and that the contract with clearly defined terms was breached in some fashion. For example, if the employee worked as a bookkeeper for the same company for years, and there was always a set rate of pay, with no discussions or contracts, an argument could be made to assert that the employee had a contract. However, if the terms were not clear, as in ninety (90) days at $35.00 an hour, with no further details ever discussed, the employee would be in a tough position.
These are just a few examples to illustrate how these misunderstandings about the common law can create legal issues.
The Future of Common Law in New Jersey
Potential future changes or developments regarding the application of the common law in New Jersey’s legal system
The application of the common law itself may not change, but it is possible that what’s deemed sufficient to constitute common law marriage may evolve over time as society and its attitudes about remarriage and new relationships change. Society may become more accepting of shorter-term cohabitation marriages and in so doing may open the door to finding a common law marriage where a common law court today would be less inclined to find that one exists. Changes in such attitudes might also lead to more common law marriages being found to exist if and when same-sex marriage becomes legal in New Jersey, particularly if that change in acceptance is not limited to new same-sex marriages pending before the Legislature’s passage of same-sex marriage . A complete overturn of the prohibition on same-sex marriage in in New Jersey, however, remains unlikely in light of the longstanding opposition within the Legislature.
The Legislature could also take action in the future to clarify and address the existing statutory gap in municipal court jurisdiction over common law marriages. Such a gap might also be addressed in appellate decisions over time. While the New Jersey Supreme Court has found that spouses who are common law married may obtain relief under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, the rationale for that relief may not eliminate the jurisdictional issue that could arise over a municipal courts’ capacity to do so in the first place. Such jurisdictional issues have yet to be tested in the lower courts.