Although 20 states have laws authorizing civil commitment for sexual predators, courts in many of those states have been highly circumspect in applying them.. The common-law system is us
Trang 1a personality disorder, are likely to engage in predatory acts of sexual violence Kansas invoked the act in committing an inmate who had a long history of sexually molesting children and who was scheduled for release from prison shortly after the act became law
In a 5–4 decision written by Associate Justice CLARENCE THOMAS, the Court rejected arguments that someone can be confined to a mental institution only if the person has been diagnosed with a mental illness The Court also rejected arguments that the Kansas law violated the DOUBLE JEOPARDY provision of the FIFTH AMENDMENT to the U.S Constitution, even though, under the law, persons who are first imprisoned for a sex crime may be institution-alized again when their criminal sentence has been served, based on some of the same evidence that had been used to convict them
The Kansas law created a civil commitment procedure that would result in confinement in
a mental hospital, the Court said, and the protection against double jeopardy is only triggered by subsequent criminal punishments and prosecutions
The U.S Supreme Court’s decision was hailed by Kansas and the 38 other states that had urged the justices to uphold the law
However, defense lawyers, civil libertarians, and mental health professionals warned that the decision might allow states to lock up convicts who are not truly dangerous to society In effect, said several mental health experts, the ruling misuses mental hospitals for punishment pur-poses, singling out one category of violent criminal for unlimited INCARCERATION without the safeguards afforded to criminal defendants
in the BILL OF RIGHTS Dissenting justices echoed these sentiments in Hendricks, writing that while they agreed in principle with the idea that states may confine sexual predators who are deemed
to be mentally abnormal, in this case it appeared that Kansas had not tried to treat the mental problems of the convict whose case was before the court As a result, they wrote, his institution-alization functioned more like a punishment, and, therefore, it was unconstitutional
Although 20 states have laws authorizing civil commitment for sexual predators, courts
in many of those states have been highly circumspect in applying them For example, the Iowa Supreme Court ruled that the state could not commit a prisoner, who was serving
a criminal sentence for operating a motor
vehicle without the owner’s consent, as a sexually violent predator, even though the prisoner had been convicted for sexually violent offenses in the past (In re Detention of Gonzales, 658 N.W.2d 103 [Iowa 2003]) The prisoner was not confined for a sexually violent offense at the time that state filed its petition for commitment Further, the state failed to prove, or even to allege, a recentOVERT ACTthat met the statutory definition for being
a sexual predator The Iowa Supreme Court reasoned that it would not be just or reason-able “to allow the state to reach back in time, seize on a sexually violent offense for which a defendant was discharged, and couple this with
a present confinement for a totally different offense—or, perhaps, a trivial one—and use the Sexually Violent Predator Act to confine the person.”
In other jurisdictions, federal courts have been asked to intervene and invalidate state laws governing the procedures by which repeat sex offenders are committed following release from prison In 2007, for example, the Mental Hygiene Legal Service (MHLS) filed a
DECLARATORY JUDGMENT action attacking the constitutionality of New York’s Sex Offender Management and Treatment Act, which created
a new legal regime for“sex offenders requiring civil commitment or supervision.” Mental Hygiene Law (10.01 et seq Section 10.06) authorized involuntary civil detention pending the commitment trial, based on a finding at the
PROBABLE CAUSE hearing that the individual may have a mental abnormality Section 10.07 of the law authorized civil commitment for a person who had been found incompetent to stand trial but had never been convicted of a sexual offense in a criminal proceeding, so long
as in a civil commitment hearing the state made
a showing by clear and convincing evidence that the person was guilty of a sexual offense The U.S district court for the Southern District
of New York struck down both provisions as unconstitutional Section 10.06 was unconstitu-tional, the court ruled, because it permitted civil detention pending trial based on a finding of mental abnormality without an individualized finding of current dangerousness Section 10.07 was unconstitutional, the court declared, be-cause it allowed detention of individuals absent
a finding BEYOND A REASONABLE DOUBTthat such individuals committed the acts that constituted the crime for which they had been charged
28 COMMITMENT
Trang 2(Mental Hygiene Legal Serv v Spitzer, 2007 WL
4115936 [S.D.N.Y Nov 16, 2007])
Courts have also been asked to review the
constitutionality of laws authorizing the civil
detention of juvenile sex offenders These laws
have been usually upheld, at least when applied
to situations in which the state seeks to commit
a juvenile offender to a juvenile sex-offender
facility while he or she is still a juvenile The
commitment proceedings grow more
contro-versial when the state seeks to use a sex offense
the person committed while still a juvenile as
one reason to justify civil detention of that
person after he or she commits a sexually
violent offense as an adult On the one hand, a
juvenile’s criminal records are protected from
disclosure as confidential in most jurisdictions,
and using those records during an adult civil
commitment proceeding would seem to violate
that confidentiality On the other hand, state
officials argue that persons who commit SEX
OFFENSES when they are juveniles present a
serious risk to society because they have more
years in which to commit repeat offenses than
do older, adult offenders
Only a few courts have ruled on whether
records of juvenile sex offenses may be
admissible during an adult civil commitment
proceeding, but courts that have made such
rulings generally have allowed their admission
A Pennsylvania Superior Court ruled that an
adult defendant’s juvenile history was
admissi-ble to establish that an adult defendant, who
pleadedNOLO CONTENDEREto aggravated indecent
ASSAULT and corruption of minors, was a
sexually violent predator The defendant had
been almost continuously committed to mental
health and juvenile detention facilities
through-out his teenage years, the court observed, and
records from those facilities documented
re-peated instances of inappropriate sexual and
physical outbursts Finally, the court noted that
the defendant had not benefited from the sex
offender treatment he had undergone as a
juvenile or as an adult The court concluded
that the probative value of this evidence was too
compelling for it to ignore (Commissioner v
Woods, 909 A.2d 372 [2006]) Two years later, a
Kansas court reached the same conclusion (In re
Colt, 39 Kan.App.2d 643, 183 P.3d 4 [2008])
Because several legal commentators have
ques-tioned these outcomes, however, the law in this
area is still very fluid
FURTHER READINGS Haycock, Joel, et al 1994 “Mediating the Gap: Thinking about Alternatives to the Current Practice of Civil Commitment ” New England Journal on Criminal and Civil Confinement 20.
James, Nathan, and Kenneth R Thomas 2008 Civil Com-mitment of Sexually Dangerous Persons Hauppauge, NY:
Nova Science Publishers, Inc.
Miller, Robert D 1987 Involuntary Civil Commitment of the Mentally Ill in the Post-Reform Era Springfield, IL:
Thomas.
Parry, John 1994 “Involuntary Civil Commitment in the Nineties: A Constitutional Perspective.” Mental and Physical Disability Law Reporter 18.
Winick, Bruce J 1999 “Therapeutic Jurisprudence and the Civil Commitment Hearing ” The Journal of Contem-porary Legal Issues 10.
CROSS REFERENCES Guilty; Patients ’ Rights.
COMMITMENT FEE Compensation paid to a lender by a borrower for the lender’s promise to give a mortgage at some future time
A COMMITMENT FEE, frequently employed in
REAL ESTATE transactions, is an expense separate from interest charged on the loan to be secured
by the mortgage The controversy surrounding nonrefundable commitment fees arises when a borrower decides not to proceed with the loan and then demands return of the fee on the premise that the lender has performed no services to earn it The courts have consistently rejected this contention and held that the lender
is entitled to the commitment fee either as
LIQUIDATED DAMAGES for breach of contract or as compensation for earmarking the funds for loan
to the borrower
COMMITTEE
An individual or group of people to whom authority has been delegated by a larger group
to perform a particular function or duty A part
of a legislative body made up of one or more individuals who have been assigned the task of investigating a certain issue and reporting their observations and recommendations to the legis-lature The Senate has various committees, such
as the Committee on Nuclear Energy The name given to the person or group of people appointed
by a court and charged with the responsibility
of acting as the guardian of an incompetent person
COMMITTEE 29
Trang 3A tangible item that may be bought or sold;
something produced for commerce
Commodities are defined as marketable goods or wares, such as raw or partially processed materials, farm products, or jewelry
Intangibles, such as human labor, services, or advertising, are generally not considered to be commodities
COMMODITY CREDIT CORPORATION The COMMODITY CREDIT CORPORATION (CCC) is a federal agency that was established to stabilize and protect farm income and prices; to assist in the maintenance of balanced and sufficient supplies of useful or serviceable agricultural goods, especially articles of merchandise mov-able in trade; and to promote the orderly distribution of such products It was organized
on October 17, 1933, pursuant to an EXECUTIVE ORDER, as an agency of the United States
From October 17, 1933, to July 1, 1939, the CCC was managed and operated in close affiliation with the Reconstruction Finance Corporation On July 1, 1939, it was transferred
to the AGRICULTURE DEPARTMENT under a presi-dentialREORGANIZATION PLAN Adoption by Con-gress of the Commodity Credit Corporation Charter Act on June 29, 1948, established the CCC as an agency and instrumentality of the United States under a permanent federal charter
The CCC is managed by a board of directors and is subject to the general supervision and direction of the secretary of agriculture, who is
an EX OFFICIO director and chairperson of the board The board consists of seven members (in addition to the secretary of agriculture) who are appointed by thePRESIDENT OF THE UNITED STATES
by and with the ADVICE AND CONSENT of the Senate
The CCC does not have operating person-nel In carrying out its principal operations, the CCC utilizes the personnel and facilities of the Farm Service Agency (FSA) and, in certain foreign trade operations, the Foreign Agricul-tural Service A commodity office in Kansas City, Missouri, has specific responsibilities concerned with the disposal (through donation, sale, or transfer) of designated commodities and products held by the CCC
Commodity Stabilization The CCC administers commodity loan pro-grams, which are part of the price support system that has dominated U.S agriculture since the 1930s Farmers who agree to limit their production of specially designated crops can sell them to the CCC or borrow money at support prices The CCC manages loan pro-grams for wheat, corn, rice, grain sorghum, barley, oats, oilseeds, tobacco, peanuts, cotton, and sugar
Commodities acquired under the stabiliza-tion program are disposed of through domestic and export sales, transfers to other government agencies, and donations for domestic and foreign welfare use The CCC is also authorized
to exchange surplus agricultural commodities acquired by the CCC for strategic and other materials and services produced abroad
Support Programs Under PUBLIC LAW 480, the Agricultural Trade Development and Assistance Act of 1954, as amended (7 U.S.C.A §§ 1691 et seq.), the CCC carries out other assigned activities Along with providing domestic assistance to schools, hospitals, and NONPROFIT organizations, major emphasis is directed toward meeting the needs
of developing nations Under the Food for Peace Act of 1966, which further amends the Agricultural Trade Act of 1954, agricultural commodities are procured and exported to combat hunger and malnutrition and to encourage economic improvement in develop-ing countries
The CCC is also involved in environmental issues In 2000 the Agriculture Department implemented a two-year, $300 million incentive program designed to encourage increased production of biofuels (environmentally-friendly fuels) such as ethanol and soy-based biodiesel
As a result, the CCC provided cash incentives to bioenergy producers who increase their pur-chase of eligible agricultural commodities to expand production of ethanol, biodiesel, and other biofuels Eligible commodities include barley, corn, grain sorghum, oats, rice, wheat, soybeans, and many seed crops
FURTHER READINGS Commodity Credit Corporation Available online at http:// www.fsa.usda.gov/ccc/default.htm (accessed May 16, 2009).
30 COMMODITY
Trang 4United States Department of Agriculture Available online at
http://www.usda.gov (accessed May 16, 2009).
CROSS REFERENCES
Agricultural Law; Agriculture Subsidies
COMMODITY FUTURES TRADING
COMMISSION
The federal regulatory agency for FUTURES
trading, the CFTC was established by the
COMMODITY FUTURES TRADING COMMISSION Act of
1974 (88 Stat 1389; 7 U.S.C.A 4a), approved
October 23, 1974 The commission began
operation in April 1975, and Congress renewed
its authority to regulate futures trading in 1978
Its authority was again renewed with the
Commodity Futures Modernization Act of
2000, which also mandated major reforms of
the commission The CFTC maintains a
com-prehensive Website at http://www.cftc.gov
The Commodity Futures Trading
Commis-sion (CFTC) consists of five commisCommis-sioners
who are appointed by the president with the
ADVICE AND CONSENTof the Senate The
commis-sioners serve staggered five-year terms, and by
law no more than three commissioners can
belong to the same political party One
commissioner is designated by the president to
serve as chair The chair’s staff includes the
Office of the Inspector General and the Office of
International Affairs
To comply with the requirements of the
Modernization Act, the commission underwent
a restructuring in 2002 As a result, it consists of
six major operating units: the Division of
Clearing and Intermediary Oversight, the
Divi-sion of Market Oversight, the DiviDivi-sion of
Enforcement, the Office of the Chief
Econo-mist, the Office of the General Counsel, and the
Office of the Executive Director
The CFTC regulates trading on the 11 U.S
futures exchanges, which offer numerous kinds
of futures contracts It also regulates the activities
of some 3,000 commodity exchange members,
360 public brokerage houses (futures commission
merchants), about 38,000 commission-registered
futures industry salespeople and associated
persons, and 2,500 commodity trading advisers
and commodity pool operators Some
off-exchange transactions involving instruments
similar in nature to futures contracts also fall
under CFTC jurisdiction
The commission’s regulatory and enforce-ment efforts are designed to ensure that the futures trading process is fair and that it protects both the rights of customers and the financial integrity of the marketplace The CFTC approves the rules under which an exchange proposes to operate and monitors exchange enforcement of those rules It reviews the terms of proposed futures contracts and registers companies and individuals who handle customer funds or give trading advice The commission also protects the public by enfor-cing rules that require customer funds to be kept in bank accounts separate from accounts maintained by firms for their own use and that such customer accounts be marked to present
MARKET VALUEat the close of trading each day
Futures contracts for agricultural commod-ities were traded in the United States for more than one hundred years before futures trading was diversified to include trading in contracts for precious metals, raw materials, foreign currencies, commercial interest rates, and U.S
government and mortgage securities Contract diversification has grown in exchange trading volume, a growth not limited to the newer commodities
The CFTC maintains large regional offices
in Chicago and New York, cities in which eight
of the nation’s 11 futures exchanges are located
Smaller regional offices are located in Kansas City and San Francisco, and there is a suboffice
of the Chicago regional office in Minneapolis
As of 2009, the CFTC was considering regulations to curb speculation in energy commodities markets, following 2008’s gross swings in oil prices, which many experts have attributed to the actions of greedy traders One proposal would limit the size of an investment
in a given commodity by a single ENTITY
FURTHER READINGS Commodity Futures Trading Commission FY 2010 Pre-sident’s Budget and Performance Plan Available online
at http://wwcftc.gov/aboutthecftc/cftcreports.html.
Commodity Futures Trading Commission Keeping Pace with Change: Strategic Plan of the Commodity Futures Trading Commission 2007–2012 Available online at http://wwcftc.gov/aboutthecftc/cftcreports.html.
Commodity Futures Trading Commission Performance and Accountability Report, November 2008 Available online
at http://wwcftc.gov/aboutthecftc/cftcreports.html.
Goldfarb, Zachary A 2009 “CFTC Floats Rules Aimed at Speculation; ” Washington Post (July 7).
COMMODITY FUTURES TRADING COMMISSION 31
Trang 5COMMON Belonging to or pertaining to the general public
Common lands, also known as public lands, are those that are set aside for use by the community
at large, such as parks and public recreation areas
Common also means habitual or recurring, such
as offenses that are committed frequently or repeatedly A common thief is one who has been repeatedly convicted of larceny Something that is common is owned equally by two or more people, such as a piece of land A tenancy in common is
an interest in land wherein at least two people share ownership
COMMON CARRIER
An individual or business that advertises to the public that it is available for hire to transport people or property in exchange for a fee
A COMMON CARRIERis legally bound to carry all passengers or freight as long as there is enough space, the fee is paid, and no reasonable grounds to refuse to do so exist A common carrier that unjustifiably refuses to carry a parti-cular person or cargo may be sued for damages
The states regulate common carriers engaged
in business within their borders When interstate
or foreign transportation is involved, the federal
government, by virtue of theCOMMERCE CLAUSEof the Constitution, regulates the activities of such carriers A common carrier may establish reasonable regulations for the efficient operation and maintenance of its business
COMMON COUNCIL
In English legal history, the name given to Parliament In the U.S legal system, the legislative body of a city or of a municipal corporation
COMMON COUNT
A traditional type of common-law pleading that is used in actions to recover a debt of money of the defendant based upon an express or implied promise to pay after performance had been rendered In a common-count pleading, the plaintiff sets forth in account form the facts that constitute the basis of his or her claim, such as money had and received and goods sold and delivered
Common counts were once used to allege the grounds for actions of assumpsit, aCOMMON
-LAW ACTIONfor the recovery of money owed by a
DEFENDANT to the PLAINTIFF The four classes of common counts were (1) the indebitatus count;
A man hails a cab
in New York’s Times
Square A taxi is
considered a common
carrier and, as such, is
regulated by the state
in which it operates.
AP IMAGES
32 COMMON
Trang 6(2) theQUANTUM MERUITcount; (3) the quantum
vabelant count; and (4) the ACCOUNT STATED
count The generalized nature of common
counts enabled a plaintiff to take advantage of
any ground of liability for which proof was
available within the limits of the action of
assumpsit This is in contrast to special counts
within which a plaintiff had to state a particular
claim or be denied relief
Common counts are no longer used for
PLEADING purposes but have been replaced by
complaints according to the Federal Rules ofCIVIL
PROCEDUREand state codes of civil procedure
COMMON DISASTER
A set of circumstances in which two individuals
die apparently simultaneously
In aCOMMON DISASTERthere is no certainty of
who died first, an important issue that
fre-quently arises in the determination of the
INHERITANCE of property or the distribution of
proceeds of a life insurance policy
The common disaster clause found in
insur-ance policies and wills is a provision that names
an alternate BENEFICIARY in the event that the
testator and LEGATEE or the insured and the
beneficiary die simultaneously SIMULTANEOUS
DEATH acts are state laws that provide for the
disposal of property in the event of a common
disaster
COMMON LANDS
An archaic designation of property set aside and
regulated by the local, state, or federal government
for the benefit of the public for recreational purposes
COMMON LANDS established by the Federal
government are known asPUBLIC LANDS
COMMON LAW
The ancient law of England based upon societal
customs and recognized and enforced by the
judgments and decrees of the courts The general
body of statutes and case law that governed
England and the American colonies prior to the
American Revolution
The principles and rules of action, embodied
in case law rather than legislative enactments,
applicable to the government and protection of
persons and property that derive their authority
from the community customs and traditions that
evolved over the centuries as interpreted by judicial tribunals
A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action
The common-law system prevails in Eng-land, the United States, and other countries colonized by England It is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and Spain The common-law system is used in all the states of the United States except Louisiana, where French CIVIL LAWcombined with English CRIMI-NAL LAWto form a hybrid system The common-law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails
Anglo-AmericanCOMMON LAWtraces its roots
to the medieval idea that the law as handed down from the king’s courts represented the common custom of the people It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the King’s Bench, and the COMMON PLEAS These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral’s (maritime), guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas
EQUITY courts, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged withCOMMON
-LAW COURTS This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system
Early common-law procedure was governed
by a complex system ofPLEADING, under which only the offenses specified in authorized writs could be litigated Complainants were required
to satisfy all the specifications of a WRIT before they were allowed access to a common-law court This system was replaced in England and
in the United States during the mid-1800s
A streamlined, simplified form of pleading, known as CODE PLEADING or notice pleading, was instituted Code pleading requires only a plain, factual statement of the dispute by the parties and leaves the determination of issues
to the court
Common-law courts base their decisions
on prior judicial pronouncements rather than
on legislative enactments Where a statute
COMMON LAW 33
Trang 7governs the dispute, judicial interpretation of that statute determines how the law applies
Common-law judges rely on their predeces-sors’ decisions of actual controversies, rather than on abstract codes or texts, to guide them
in applying the law Common-law judges find the grounds for their decisions in LAW REPORTS, which contain decisions of past controversies Under the doctrine of STARE DECISIS, common-law judges are obliged to adhere to previously decided cases, or pre-cedents, where the facts are substantially the same A court’s decision is BINDING AUTHORITY
for similar cases decided by the same court or
by lower courts within the same jurisdiction
The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered
as PERSUASIVE AUTHORITY Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case ofFIRST IMPRESSION
(previously undetermined legal issue) The com-mon-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision This flexibility allows com-mon law to deal with changes that lead to unanticipated controversies At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment
Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence Both parties present their cases before a neutral fact finder, either a judge or a jury The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties Following the decision, either party may appeal the decision to a higher court Appellate courts in a common-law system may review only findings of law, not determinations of fact
Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws The judiciary may review legislation, but only to determine whether it conforms to constitutional requirements
FURTHER READINGS Cantor, Norman F 1997 Imagining the Law: Common Law and the Foundations of the American Legal System New York: HarperCollins.
Kellogg, Frederic R 2003 “Justice Holmes, Common Law Theory, and Judicial Restraint ” John Marshall Law Review 36 (winter).
Pound, Roscoe 2008 The Spirit of the Common Law (1921) Whitefish, MT: Kessinger.
Strauss, David A 2003 “Common Law, Common Ground, and Jefferson ’s Principle.” Yale Law Journal 112 (May) Available online at http://yalelawjournal.org/112/7/ 1717_david_a_strauss.html; website home page: http://yalelawjournal.org (accessed July 14, 2009) CROSS REFERENCES
Adversary System; English Law.
COMMON-LAW ACTION
A lawsuit governed by the general principles of law derived from court decisions, as opposed to the provisions of statutes Actions ex contractu, arising out of a breach of contract, and actions
ex delicto, based upon the commission of a tort, are common-law actions
COMMON-LAW COURTS The early royal courts in England that adminis-tered the law common to all
For a time after the Norman Conquest of England in 1066, the king himself sat to hear cases involving royal interests and the court was calledCORAM REGE(Latin for“before the king”) When the king began delegating authority to administer justice, the tribunal he appointed was calledCURIA REGIS, the King’s Court Out of the Curia Regis came the three royal COMMON
-LAW COURTS The first offshoot was the Exche-quer, which originally collected taxes and administered the king’s finances, but by 1250 was exercising full powers as a court Next to develop as a separate court wasCOMMON PLEAS, a court probably established by Henry II during the latter half of the twelfth century to hear cases not involving the king’s rights The remaining part of the Curia Regis reviewed decisions of the Common Pleas by issuing writs
of error This court, later known as the King’s Bench, also heard cases involving the king’s interests, particularly criminal matters and cases involving high noblemen For many years the work of the court was written as if proceedings before it were before the king himself The common-law courts competed with the CHAN-CERY, which exercised EQUITY jurisdiction, and
34 COMMON-LAW ACTION
Trang 8their struggles shifted the division of authority
at various times They were consolidated with
the other high courts of England by the
JUDICATURE ACTSin the late nineteenth century
CROSS REFERENCES
Law “Common-Law Courts” (Sidebar).
COMMON-LAW MARRIAGE
A union of two people not formalized in the
customary manner as prescribed by law but
created by an agreement to marry followed by
cohabitation
A fundamental question in MARRIAGE is
whether the union is legally recognized This
question is important because marriage affects
property ownership, rights of survivorship,
spousal benefits, and other marital amenities
With so much at stake, marriage has become a
matter regulated by law
In the United States, the law of marriage is
reserved to the states and thus governed by state
law All states place restrictions on marriage,
such as age requirements and the prohibition
of intrafamilial marriage Further, most states
recognize marriage only upon completion of
specified procedures A typical statute requires a
witnessed ceremony solemnized by a lawfully
authorized person, submission to blood tests,
and fulfillment of license requirements
How-ever, in some states, the marital union of a man
and a woman can still be achieved in the most
simple, time-honored ways
History
Marriage has evolved over the centuries, but
some basic features have remained constant In
ancient Rome, it was accomplished by consent
of the parties to live together No forms were
required, and no ceremony was necessary This
early Roman model of marriage was displaced
when the Catholic Church declared in 1563 that
marriages were not valid unless contracted in
the presence of a priest and two witnesses In
England, under the Anglican Church, marriage
by consent andCOHABITATIONwas valid until the
passage of Lord Hardwicke’s Act in 1753 This
act instituted certain requirements for marriage,
including the performance of a religious
ceremony observed by witnesses
The American colonies rejected the
require-ment of a religious ceremony but retained the
custom of a ceremony, religious or otherwise
The ancient Roman concept of marriage by agreement and cohabitation was adopted by early American courts as valid under the
COMMON LAW
In the 1800s state legislatures began to enact laws expressly to prohibit marriage without an observed ceremony and other requirements COMMON-LAW MARRIAGE was pro-hibited in a majority of jurisdictions However, the FULL FAITH AND CREDIT CLAUSE of the U.S
Constitution requires all states that prohibit it
to nonetheless recognize a common-law mar-riage created in a jurisdiction that allows it U.S
Const art IV, § 1 Laws in all states require a common-law spouse to obtain aDIVORCEbefore remarrying
Common-law marriage is allowed in four-teen jurisdictions: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and the District of Columbia The manner
in which a state authorizes common-law mar-riage varies Pennsylvania maintains a statute that declares that the statutory chapter covering licensed marriage does not affect the recogni-tion of common-law marriage (23 Pa Const
Stat Ann § 1103) In Georgia, the operative marriage statute simply states, “To constitute a valid marriage in this State there must be—1
Parties able to contract; 2 An actual contract; 3
Consummation according to law” (Ga Code Ann § 19-3-1)
Several reasons have been offered for recognizing common-law marriage In some states, including Pennsylvania and Rhode Island, common-law marriage was originally permitted
to allow for religious and social freedom Some state legislatures have noted the private impor-tance of marriage and assailed the insensitivity
of governments purporting to regulate such a personal matter Other states have been reluc-tant to require licensing and ceremony in consideration of the financial hardship such requirements impose on poor citizens
Features
A common-law marriage has three basic features
When a common-law marriage is challenged, proof of the following elements is critical in most jurisdictions
1 A present agreement to be married The parties must announce to each other that they are
COMMON-LAW MARRIAGE 35
Trang 9married from that moment forward Specific words are not mandated, but there must be evidence of an agreement to be married
Proof may consist ofCIRCUMSTANTIAL EVIDENCE, including evidence that the partners have cohabitated and held themselves out to the public as being married However, neither cohabitation nor a public holding out constitutes sufficient proof to establish the formation of a common-law marriage, either
by themselves or taken together An agree-ment to marry must be proved by the party asserting marriage
2 Cohabitation The parties must actually live together in order to support a claim of common-law marriage Whether mainte-nance of a separate home by one of the parties will nullify a common-law marriage
is a QUESTION OF FACT and depends on the circumstances of the particular case
3 Public representations of marriage The couple must consistently hold themselves out to the public as married A married couple is expected to tell people that they are married They should also file joint tax returns and declare their marriage on other documents, such as applications, leases, and birth certificates
Legal Applications
A challenge to a common-law marriage can come from a variety of sources For example, an insur-ance carrier or pension provider may contest a common-law marriage when one spouse claims benefits by virtue of the marriage Often, it is one
of the purported spouses who challenges the existence of a common-law marriage
In Flores v Flores, 847 S.W.2d 648 (Tex
App Waco 1993), Peggy Ann Flores sought to prove that she had been married by common law to Albert Flores Peggy and Albert were married in a ceremony on July 18, 1987, and divorced on March 9, 1989 They continued to live together until November 1990, when Albert moved away to live with his girlfriend, Lisa
Albert and Lisa were married on January 1, 1991
Peggy filed for a second divorce from Albert
on January 31, 1991 In the same proceeding, she applied for custody of their child, Joshua, and CHILD SUPPORT payments from Albert The County Court, Brazos County, found that a common-law marriage had existed between
Peggy and Albert following their 1989 divorce The county court granted the second divorce and ordered custody and child support pay-ments to Peggy Albert appealed, arguing in part that there was insufficient evidence to support a finding both that Peggy and Albert had agreed
to remarry and that Peggy and Albert had represented to others that they were married The Court of Appeals of Texas, Waco, agreed with Albert The court of appeals opened its opinion by listing the important factual background According to Peggy’s testimony at the 1991 divorce proceeding, she had considered herself married to Albert after the 1989 divorce, and Albert had, on one occasion, introduced her
as his wife after the 1989 divorce Peggy’s employer, Irma Ortega, testified that she did not know of the first divorce, that Albert sent gifts and affectionate notes to Peggy, and that Peggy kept a picture of Albert and Joshua at her workplace Relatives of both Peggy and Albert testified that after the 1989 divorce, the relationship continued much as it had before Other testimony revealed that on a visit to a hospital after the divorce, Peggy told hospital personnel that she was single Albert and Peggy signed a LEASE together that did not specify their relationship Peggy used Albert’s credit cards, and Albert paid the rent and other bills Peggy and Albert also maintained a joint bank account and carried on a sexual relationship Albert testified that Peggy had asked him to stay with her until she got“back on her feet.”
He also testified that he had moved in with Peggy after the 1989 divorce to help her and that he had informed Lisa that he was living with his former wife“and helping her out.” The court of appeals then addressed whether these facts sufficed to establish a common law marriage in Texas The court said that while the facts must demonstrate cohabitation by the parties, public representations of marriage by the parties, and an agreement to be married, all three elements need not exist simultaneously for a common-law marriage to exist
On the issue of whether the couple had agreed to be married again after the 1989 divorce, the court acknowledged that such an agreement can be inferred from cohabitation However, the court warned that cohabitation is more common than it once was and that cohabitation evidence should be weighed more carefully than it has been in the past After an
36 COMMON-LAW MARRIAGE
Trang 10examination of the record, the court concluded
that there was no DIRECT EVIDENCE of an
agreement between Albert and Peggy to marry
The evidence showing that Albert and Peggy
had lived together and shared resources did not
compel a finding of an agreement to be married
Nor did the evidence support a finding that
Peggy and Albert had held themselves out as
married According to the court of appeals, one
public representation of marriage did not
constitute a public holding out Other evidence
offered by Peggy, such as the joint bank account,
was insufficient to support public holding out,
the court found Thus, the court of appeals
ultimately reversed the judgment of the county
court and ordered that Peggy take nothing but
child support payments from her suit
Late Twentieth-Century Developments
During the last 15 years of the twentieth century
a growing number of states, counties, and
municipalities granted qualified legal
recogni-tion to unmarried“domestic partners.” Known
in some jurisdictions as “reciprocal
benefici-aries,” unmarried couples who receive legal
recognition as domestic partners may be eligible
for HEALTH INSURANCE benefits, life insurance
benefits, and childVISITATION RIGHTS Depending
on the jurisdiction, domestic partners may also
be entitled to hospital visitation rights
However, in most jurisdictions domestic
partners may only inherit from their partners or
their partner’s family if they are specifically
named in the deceased’s will A few states allow
domestic partners to inherit from each other or
each other’s family in the absence of a will,
calledINTESTATE SUCCESSION By contrast, the law
of all states that recognize common-law
mar-riage allow both parties to the common–law
marriage to inherit under state INTESTACY laws
when either spouse dies without a will
Also unlike common-law marriages,
domes-tic partners may not typically ask courts to settle
their post-relationship property disputes Nor
may domestic partners petition courts for
ALIMONY awards, unless the partners entered a
formal agreement for palimony prior to their
cohabitation Marvin v Marvin, 18 Cal.3d 660,
557 P.2d 106, 134 Cal Rptr 815 (Cal 1976)
But if partners do enter a palimony agreement,
they will generally be enforced, unless during
the period of cohabitation the partners resided
in Illinois, Georgia, and Tennessee, the three
states that have expressly refused to recognize palimony agreements
Every jurisdiction recognizing domestic partners as a legal ENTITY has its own list of formal requirements that unmarried couples must satisfy before they will be formally recognized as domestic partners The formal requirements in no two jurisdictions are identical However, most jurisdictions do share many of the same core requirements
These core requirements include that both partners must be older than 18 and unmarried, currently live together, apply together before a public official with authority to recognize them
as domestic partners, and pay the related fees to
be registered To end a domestic partnership, most jurisdictions allow the couple simply to send a letter to the registrar of domestic partners
The letter must be dated and signed by both partners, and it must specifically request that the domestic partnership be terminated
Laws in eight states and more than 100 municipalities currently provide legal recogni-tion for unmarried couples as domestic partners
This legislation often allows both opposite-sex and same-sex couples to form domestic partner-ships, unlike the states that recognize common-law marriage, none of which expressly permits homosexual common-law marriages, and some
of which expressly prohibit it Pursuant to state and local domestic-partner legislation, 157 For-tune 500 companies, 3,960 private employers and unions, and 158COLLEGES AND UNIVERSITIESwere as
of mid-2003 providing benefits to domestic partners Although no nationwide statistics exist, the 2000 CENSUS revealed almost 10,000 domestic partners were registered in St Louis, Missouri, alone, and more than 15,000 same-sex couples were registered as domestic partners in California
FURTHER READINGS Jasper, Margaret C 2001 Marriage and Divorce 2d ed New York: Oxford Univ Press.
Legalines on Domestic Relations—Keyed to Wadlington and O’Brien’s Cases and Materials 2009 Eagan, MN: West.
“Marriage Laws of the Fifty States, District of Columbia and Puerto Rico ” Legal Information Institute, Cornell Univ.
Law School Available online at http://topics.law.cornell.
edu/wex/table_marriage; website home page: http://
topics.law.cornell.edu (accessed August 20, 2009).
CROSS REFERENCES Circumstantial Evidence; Cohabitation; Domestic Partner-ship Law; SurvivorPartner-ship.
COMMON-LAW MARRIAGE 37