Is Family Law Common or Civil?
Family law is an essential branch of law that deals with matters related to the family, such as divorce, child custody, adoption, and more. If you’re dealing with a family law matter, it’s crucial to understand the legal framework that governs family law. Luckily, you don’t have to worry about becoming a legal genius overnight. Intermountain Legal, P.C. is an experienced family law firm offering comprehensive legal counsel when you need it. But first, here’s everything you need to know about family law and its relation to common and civil law.
Table of Contents
Understanding the Legal Systems and Jurisdictions
Common Law
Common law is a legal system that originated in England and has been adopted by many countries, including the United States. Under common law, legal precedent plays a significant role in determining the outcome of cases. Precedents are decisions made by judges in previous cases that have similar facts and legal issues. In common-law countries, family law is generally governed by common law principles.
Civil Law
Civil law is a legal system that originated in Europe and is based on written laws or codes. In civil law countries, the legal system is designed to provide a clear and predictable framework for resolving legal disputes. Family law is typically governed by civil law principles in these countries.
Is Family Law Common or Civil?
The answer to this question depends on the country in question. In countries that have a common law system, family law is governed by common law principles. On the other hand, family law is governed by civil law principles in countries that have a civil law system.
Common Law Countries
In common law countries, family law is primarily governed by state laws, and the law varies from state to state. For example, in the United States, family law is governed by state laws, and each state has its own set of laws governing family law issues. However, there are some common law principles that are generally applied in family law cases across common law countries.
● Marriage
Common law marriage is a legal doctrine that recognizes a couple as married if they have lived together and presented themselves as married for a certain period of time without having gone through a formal marriage ceremony. The specific requirements for common law marriage vary by state or jurisdiction but generally include factors such as cohabitation, intent to be married, and holding themselves out as a married couple.
● Property Division
In many states, common law principles apply to the division of property in a divorce or separation. Under common law, property is generally considered to be owned by the person who acquired it unless there is evidence of a joint effort or contribution by both spouses. This can lead to complex disputes over the ownership of property acquired during a marriage, particularly when one spouse contributed more than the other or when the property is held in one spouse’s name only.
● Child Custody and Support
Common law principles apply to child custody and support disputes in some states. Under common law, the court will generally consider the best interests of the child in making decisions about custody and visitation and will also take into account the financial needs of the child and the ability of each parent to provide for those needs.
● Domestic Violence
Common law principles may apply to domestic violence cases, particularly when the victim is seeking a protective order or restraining order against the abuser. Under common law, the court may consider evidence of past incidents of violence or threats of violence in determining whether to grant the order and may also consider the potential harm to the victim and any children involved.
Civil Law Countries
In civil law countries, family law is governed by a set of statutes enacted by the government. These statutes provide a clear framework for resolving legal disputes and ensure that the law is applied consistently across the country. Civil law applies to the following areas in family law:
● Marriage
Civil law regulates the legal requirements and formalities of marriage, such as the minimum age for marriage, the need for a marriage license, and the presence of witnesses. Civil law also provides for the annulment of marriages that are void or voidable due to fraud, duress, or lack of capacity.
● Property Division
In some states, civil law provides a framework for the division of property in a divorce or separation. These states follow a system of community property or equitable distribution, which dictates how property acquired during the marriage should be divided between the spouses. Community property states generally split all marital property 50/50, while equitable distribution states may consider how long the marriage lasted, each spouse’s earning capacity and each spouse’s contributions to the marriage when dividing property.
● Child Custody and Support
Civil law provides for the establishment of legal custody and physical custody of children, as well as guidelines for the calculation of child support payments. Courts may consider factors such as the child’s best interests, the ability of each parent to provide for the child’s needs, and the child’s wishes when making custody and support determinations.
● Domestic Violence
Civil law provides for the issuance of protective orders or restraining orders in cases of domestic violence, as well as legal remedies such as damages or injunctions. Victims of domestic violence may seek these legal protections in civil court and can be awarded monetary damages or other relief if they can prove the abuser committed acts of domestic violence.
The answer to whether family law is common or civil law depends on the legal system of the country in question. Both systems have their advantages and disadvantages, but the important thing is that the legal framework governing family law is designed to ensure that families are treated fairly and that legal disputes are resolved in a just and equitable manner.
If you are going through a divorce, seeking custody of your children, or adopting a child, you want to understand the legal framework that governs family law in your country. Understanding the principles and rules that apply to family law can help protect your rights and ensure you achieve the best possible outcome for you and your family.
