What is common law?

Common law system applies in a marital relationship with respect to proprietary rights.

Here, properties (which include tangible and intangible properties) acquired by either of the spouses in the course of their spousal relationship will be solely owned by him/her unless a contrary intention is expressed.

Hence, where the acquiring spouse is desirous of sharing the ownership rights in the property, the name of the other spouse must be mentioned as owners of the property. This system is of particular significance in wealth and estate management in the event of divorce or death of a spouse.

It is instructive to note the distinction between the common law system and community property. Unlike the common law system, community property implies a proprietary relationship in which assets owned by either of a married couple during the currency of their relationship, will legally belong to both after divorce or death. Not many jurisdictions operate the community property system; hence, couples should consider the applicable system in their respective jurisdictions.

At any rate, in the event of a divorce, proprietary interests may be ascertained from the prenuptial and postnuptial agreement without making recourse to both the common law and community property system.

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