What Does "Common Law" Mean?
Common law is a system of law that is based on precedent and customs as established by court rulings. It is one of the two primary forms of law in common law legal systems, the other being statutory law. In the United States, common law is part of what is known as a common law legal system, which also includes customary law. Common law systems give precedential weight to the published opinions of judges on the basis of consistency, in contrast to civil law systems that emphasize statutory law.
Common law originated in medieval England and was the result of unification of local customary law. The common law of England and Wales expanded during the British Empire into most of its regions, with the United States being one area that retained and adapted British common law . Common law is contrasted with statutory law, which is promulgated by legislatures and adopted by people through their representatives.
Common law judges have traditionally had a higher role in creating law than judges in civil law systems because they have the power to treat customs as sources of law that apply to various situations. Common law judges also have the power to override statutory law. This precedent- and custom-based judicial decision-making is in contrast to statutes and codes of civil law legal systems, which are generally more rigid.
In Washington State, common law is defined as "that body of law made up of decisional law, as distinguished from statutes and regulations created by legislative bodies and administrative agencies." Essentially, it is the unwritten law related to the judicial process.
Recognizing Common Law in Washington State
The short answer is "no." Washington RCW 26.60.020(1) provides that "a marriage license is required before a person may marry in this state," and WAC 246-460-010(1) states plainly " Washington does not recognize common law marriages." The key point to note is that marriage and common law are two different legal ideas: establishing a marriage versus establishing the status of being married.
In this State, Washington recognizes marriage as a binding commitment between individuals. Before a marriage may be established between parties there is a clearly defined process which must take place. WAC 246-460-010(1) makes clear that regardless of how long parties may live together as a couple that they may not call each other their ‘husband’ or ‘wife’ unless they have first obtained a marriage license. Parties cannot hold themselves out as "married" without first involving the State in their decision. Not only does one have to obtain a marriage license before one may marry, but know that under Washington RCW 26.60.080 you can also be charged with a crime for the following acts:
How does the above apply when considering the myth of the common law marriage? If all of the above involvement of the State is required before a marriage can be entered into, it’s simply inconceivable that Washington State would allow parties to change their legal standing through private agreement. Under Washington State law, a marriage requires a marriage license and in its absence, no marriage exists. To clarify the matter even further, WAC 246-460-010(2) provides that the "fact that a license to marry was not applied for or issued does not affect any right to property or any other legal right that may be had either in equity or at law." This borne out in the case of Collins v. Athans, 39 Wn. App. 22, 691 P.2d 575 (1984). In Collins, the Court explicitly noted that "Washington recognizes no common law marital relationship … [n]or have we recognized a common law marital relationship by estoppel." According to a subsequent case, In re Marriage of Lindland, 95 Wn. App. 115, 974 P.2d 1260 (1999), in Collins the Court of Appeals ruled that a common law marriage does not exist in Washington State because to hold otherwise is contrary to public policy in Washington.
Even still, there are a number of specifics to Washington State law regarding common law marriage one should be aware of. For example, in the absence of a marriage’s dissolution (divorce), notwithstanding the State’s lack of recognition of common law marriage, as noted in Washington RCW 26.09.080, common law marriages will not be void in this State. It is therefore vital that parties who find themselves in a long-term relationship seek to formalize their relationship through the appropriate marriage license before the relationship becomes too far entrenched and lengthy.
In addition, Washington recognizes common law as it relates to contracts, notes, and restricted covenants among other things. Under Washington RCW 62A.9A-115, the definition of "goods" includes "crops, seeds, goods that have been identified to a contract for sale, Lot Note" and the like. Under Washington RCW 62A.2-103, "goods" includes all things that are movable at the time the contract is entered into.
Common Law Marriage in Washington State
Common law marriage in Washington State is at the center of many misconceptions and common myths. Despite the numerous occasions when I have explained this to clients and friends, I continue to hear from people claiming they are in a common law marriage and don’t need to go through the divorce process. This article is a basic introduction to common law in Washington State in an attempt to clear up these myths.
While Washington State used to recognize common law marriages, it repealed that statute in 1900. The State of Washington does not recognize a common law marriage and no unmarried cohabitating couple will be considered married unless a civil marriage license has been obtained or a clergyman has solemnized a marriage between the parties.
Some people think that if they have lived with a person for a certain number of years, they are legally married. The law in Washington does not address how long you have lived with someone. The fact that you have lived together for a certain number of years is not grounds alone for a common law marriage.
Another thing that clients do not realize is that the law requires that the parties have an agreement that they are going to be married. If you do not have an agreement to be married, you may be cohabiting, but you are not married. A cohabiting agreement may be written or it may be implied by your conduct. For example, if you keep separate checking accounts and separate credit cards, you do not have an agreement that you are married. However, if you have joint checking accounts, a joint home and a joint credit account, the couple may have an implied agreement that they are married. I have seen things such as life insurance benefits go to the ex spouse because the parties do not understand that they were never actually married. Without an agreement that you are going to be married and an action to carry that out, you are not married under the law.
Judicial Rulings and Common Law Practices
The common law of Washington State has been shaped not only by legislative enactments but also by the weight of judicial precedents which have both contributed to common law principles and furthered their application. For example, the Washington Supreme Court has held that the state Constitution provides a right to privacy, and that private parties may not contract away the constitutional and statutory protections of individual workers or citizens. In the sublime and one of the most oft cited cases on the subject, the court held that a mortuary could not contractually bypass the statutory law by requiring the signature of an independent witness to the signing of the waiver, the purpose being to vitiate the statutory prohibitions against the sale of cadavers and increase the number of refusals of autopsies. The case of Boling v. balance point happens to have the two justices with the most seniority, Justice Sanders and Justice Johnson, in dissent. these justices wrote that Boling was not a case of first impression, and cited the 1957 case of State ex rel. Clark v. Northwest Hospital, Inc, 49 Wash. 2d 1028. But when the 1957 case actually is read, it is apparent that the controlling statute did not have the categorical prohibition against contracting away the statutory rights of individuals as the Boling opinion had stated. Justice Johnson did not sign the Boling dissent. He had already dedicated himself to a belief that judicial legislation is neither appreciated nor sought by the Washington public.
Exceptions and Special Circumstances
There are a couple exceptions to certain aspects of how "common law" operates in Washington State. These relate to the statutes of limitations applicable to cases. These are special rules that affect how long you have to file a case before your claim is lost. These statutes are, by their nature, legislative creations and thus not "common law" in the original sense.
In Washington, there is a two-year statute of limitations for personal injury cases but there is also a "savings statute" that can extend the time for a year, sometimes called the "two-year statute plus one year savings statute." Essentially, if you file suit before the two years is up and then non-suit or lose, you still have an additional year to re-file even if the lawsuit was formally dismissed.
Another exception increases this limit to four years for medical malpractice cases in King County, Washington. This is occasionally referred to as the "King County rule." However, this is not a "rule" as such but is more of a guideline in the event of an injury caused by a medical or health care provider. Since King County is the most populous venue in the state, it has different rules that affect its attorneys than all of the other less populous counties in the state. For example, health care providers in King County are subject to more scrutiny than those in other counties.
Health care providers in King County are likely to be insured and therefore licensed by a number of big insurers, including but not limited to Premera and State Farm. If you have a claim against either of these companies , you will be facing a heavily staffed legal department that takes a special interest in medical malpractice cases, even when they are located in Spokane, Washington. In short, you are going to need the A-Team to take a run at one of these cases.
If, for example, you bought five thousand shares of Boeing stock at $100.00 per share, or $500,000, you operate what is known as a "blue sky" type of claim. If you then lost the money because of fraud in the inducement of the investment, the statute of limitations for that is four years. This does not mean that the claim will end four years after notice of the claim was received but is a "limitation period" indicating the maximum amount of time that passed after the fraudulent inducement.
In Washington, there are a number of odd rules that apply to particular categories of actions. In King County, for example, contract actions are susceptible to only a six-year statute of limitations from the date the contract was breached or wrongfully rescinded; however, if the action did not involve fraud, the statute drops to three years. Furthermore, a number of claims are excluded from the statute of limitations in King County or Washington State generally; these include claims brought under the Uniform Commercial Code, the Securities Acts, the Land Use code, health and safety regulations, chattel mortgage skip laws and judicial foreclosure actions.
If you are in need of more information on Washington State Law applicable to "common law," please contact our office at 1-259-1589 or by email [email protected].
Washington State vs Other States
While Washington State is unique in its historical approach to common law, it is not unusual in the context of the Union. Most states allow stare decisis from the highest court of that particular state to define its common law. Some also allow for interpretations from other western states when offering an interpretation of a law that has been adopted from another state. But this is by no means universally the case.
Take, for example, the state of California: the official website of the Judicial Branch explains that the California Supreme Court "decides and answers important legal questions that impact the people of California. The decisions the Court reaches are controlling and binding on all inferior state courts and administrative agencies throughout the state. The published opinions of the Court are available for publication in official books (official reporters) and online." (emphasis added).
Similarly, Alaska’s website refers to the "State Court System," and notes that "Alaska has three levels of court: the Supreme Court, the Court of Appeals, and the Superior Court." Official reporters are published and available online. Vermont’s website even more baldly states that in that state, "The Vermont Constitution of 1777 adopted Massachusetts statutes as the law of Vermont except where modified by Vermont statutes."
Many states routinely appoint commissions, which are composed of judges, attorneys and members of the public, to consider proposed changes to their constitutions and rules of court. These commissions have proposed major changes in the past few years. For example, in 2011, the Alabama Supreme Court accepted the recommendations of a commission that proposed a wholesale revision of that state’s civil procedure rules.
Ohio and Maryland allow certified legal assistants to draft legal documents. South Carolina allows paralegals to sign pleadings. Conversely, Montana prohibits paralegals from signing pleadings and requires that all filings be signed by an attorney. Florida prohibits paralegals from drafting a number of documents, including pleadings, motions and notices of foreclosure sales. This is only a snapshot of the differences among the fifty states in their approaches to the regulation of the practice of law.
It is worth noting that just as Washington’s approach is not unique within the United States, it is also not unique in the international context. According to a 2009 report published by the World Bank, thirteen foreign nations, including Canada and the United Kingdom, recognize some combination of stare decisis and binding precedent. Other countries are less zealous in their recognition of binding precedent: for example, Germany only recognizes decisions by the highest court as binding on lower courts.
Impact on Residents and Lawyers
For residents, the distinction between statutory and common law can be significant. As an example, if you are involved in a motor vehicle accident and are injured due to another party’s negligence, the Washington law that allows you to collect damages for loss of income due to your injuries is statutory, not common law. However, if you were injured on a bus and missed two days of work, you would only be entitled to loss of income for the two days’ wages you lost. Essentially, things change when there is no statute or the statute is outdated. The insurance company will be more inclined to settle with lesser payments than pay the full amount of the claim. Therefore , knowing whether the law you are filing under is statutory or common law can make a world of difference when it comes time to negotiate your settlement.
It is especially important for legal practitioners to know the distinction to protect the rights of their clients. This is why it is essential for attorneys to do their due diligence to ensure that they are filing under statutory law rather than common law. They have an ethical responsibility to practice law under the correct jurisdiction and for the benefit of their clients.