What Is the Common Law?
Common law is a body of unwritten laws based on legal precedents established by the courts. It applies to many areas of law in Arkansas. Unless specifically stated otherwise, common law opinions are based on the interpretation of statutes or regulations, not necessarily from custom or practice.
In practice, common law refers to any unwritten laws that have not been codified in the Arkansas Code. Such laws are established by court decisions, i.e., the body of law stated in the decisions that are produced by the state’s judicial system . With our three-tiered judicial system, Arkansas courts provide ample legal precedent for common law, as evidence and logic are used rather than strict, codified law.
In Arkansas, the common law is generally the law of England as of June 19, 1819, as long as it does not conflict with the Arkansas Constitution or statutes present at that time. This 1819 cutoff date can pose problems for today’s litigants if they rely on a statute or constitutional provision that was enacted after 1819.
Arkansas Common Law Marriage
Unlike most of the states in the United States, common law marriage is not recognized in Arkansas. In fact, Arkansas has a statute that specifically states "Arkansas does not recognize common law marriage." Arkansas Supreme Court Reference Guide Section 3.2(3) ("The common law rule pertaining to marriage in Arkansas was abandoned by Act 1984 of 1979. In essence it is the holding of the board of law examiners against a character and fitness applicant that Arkansas does not recognize common law marriage.") According to Hammons v. Hammons, 340 Ark. 246, 256, 12 S.W.3d 204, 209 (2000), the only way to prove that a common law marriage exists in Arkansas is to produce a certificate of marriage.
In Arkansas, cohabitating is not a "marriage," but a cohabitation contract can be used in domestic litigation that meets the requirements of a legally enforceable contract. See Dorris v. Nunnelee, 705 S.W.2d 674 (1986).
Common Law and Property Ownership
Common law plays a significant role in determining property rights in Arkansas. In the absence of an agreement, Arkansas law recognizes that property acquired during the course of a relationship may be classified as "marital," "non-marital" or "commingled." Title to property in Arkansas has no effect on the classification of the property. For example, real property titled in one party’s name may still be classified as non-marital because it was acquired prior to the relationship. There are two basic scenarios involving common law property principles: parties who are unmarried live together and acquire property; or parties were once married and have a property settlement agreement or divorce decree. If the parties live together as unmarried individuals and later separate, the property will be classified as follows:
If married, divorce, then separate:
Although classified as marital property, the divorce decree will dictate what happens to the property. Either spouse may have to make a property settlement payment to the other spouse for them to retain their interest in the property.
The Role of Common Law in Family Law Matters
The impact of common law in child support and custody issues is significant. For example, if a mother leaves a child in the care of a grandmother, upon the death of the mother, the grandmother will likely be the one seeking custody of the child. The Courts will always look at what is in the best interests of the child. Through the principle of common law, these circumstances will generally not result in an automatic award of custody to the grandmother. If the father can demonstrate through witnesses and guiding factors that the mother did not intend to leave the child with the grandmother, the father will likely be awarded custody of the child. Ultimately, this is going to save a lot of families from potential problems that arise from orphan children being taken away from other family members that had standing.
Child support is another area where the common law plays a part in Arkansas Courts. Chapter 9(b) of the synopsis of Arkansas law establishes guiding factors for child support calculations. These factors must be weighed and considered by the Arkansas Courts in determining how much, if any support, is owed. It would seem to be unfair for a father to be forced to pay support, but yet be denied access to his child. The mother then pays no support, but receives all of the benefits of her efforts to maintain solely custody of a child. Arkansas law also does not change if the family unit is comprised only of a man and child or a woman and child. Deference of the Court to traditional family units is no longer recognized as a legitimate reason to deny standing to bring a lawsuit in Arkansas.
The Influence of Common Law in Business Transactions
The influence of common law over business practices in Arkansas is evident in both the employer-employee relationship and contractual considerations. Employers and businesses are beholden to the common law in Arkansas, as it dictates the duties, rights and standards that govern employer-employee relationships. The common law mock-ups the definition of "employment at will" by establishing that such a type of employment grants the employer the right to terminate employment for any reason not specifically prohibited by statute or to which the employee has not given up the right. The burden rests on the employer to show proof that the employee has violated either federal or state laws or the employee has been discharged for a just cause. The employer is free to discharge the employee because of his or her physical attributes (gender , sexual orientation, race, etc.), economic status, age or education. However, the employee is protected from being discriminated based on the aforementioned attributes.
Contracts are another area of business practices that are impacted by common law in Arkansas. While legally enforceable contracts can be oral, written or implied, Arkansas law provides that an invalid contract may be declared valid by the judicial system if it is determined that there was an offer and response by both parties; both parties agreed to the same terms; and there was a meeting of the minds as the intent of the parties. Arkansas provides a seven-year time limit on the institution of a written contact, although the courts may issue such a ruling at any time without objection of the defendant.
Common Law and Criminal Law Proceedings
The doctrine of common law and stare decisis is also applicable to criminal cases in Arkansas, but with some important nuances. Like any other area of the law, earlier decisions from the Arkansas Supreme Court, as well as the Arkansas Court of Appeals, become the law so long as the doctrine of stare decisis compels it. But unlike civil cases where the court may be persuaded to create new law by distinguishing the facts at issue from the precedents, or by overruling them, where criminal law is involved, the courts have held that they cannot overrule or generally depart from precedent on their own. That’s left to the state legislature or the people of Arkansas through a ballot measure.
In Morales v. State, 370 Ark. 232, 258 S.W.3d 397 (2007) the Arkansas Supreme Court wrote that: "Prevailing precedent is binding upon this court absent an articulation by the General Assembly, or the people, of a purpose to change the law as expressed in statutory language. In fact, [i]f the state’s highest court speaks on a matter, lower courts are bound to follow unless they find that the pronouncement has been altered by statute or can be distinguished."
The high court has further held that the legislature must act expressly by enacting laws to imply an intention to override overruled precedent. See Mathis v. State, 2010 Ark. 268, at 6, 371 S.W.3d 646, 649 (Ark., 2010).
In Wright v. Whitson, 2012 Ark. 24, 386 S.W.3d 56 (2012) the Arkansas Supreme Court recently stated that "It is beyond dispute that we have held, in the context of criminal law, that one panel of this court cannot overrule another panel, absent an intervening [legislative] enactment."
The law thus remains clear: where the Arkansas Supreme Court has spoken on an issue in a criminal case, a later panel cannot overrule the decision absent legislative action expressly indicating an intent to do so. At least for now, criminal law is immune to the usual malleability of the common law.
Recent Changes to Arkansas Common Law
In recent years, the Arkansas Supreme Court has shown great interest in taking cases to clarify and interpret areas of common law. In 2017, for example, the court agreed to consider three cases raising questions in the areas of negligence, strict liability, and proximate cause.
Although courts are generally reluctant to reduce an area of common law to a bright line rule, they can use their opinions to provide guidance to lower courts in applying a strict standard (e.g., that a failure to obtain watercraft certification is negligent as a matter of law).
In Dunn v. City of Mayflower, 2018 Ark. 49 (Feb. 15, 2018), the court once again considered "invitational recreational immunity," which has been found to be an affirmative defense under Arkansas Code Annotated section 18-13-101 (2003). Under the statute, no property owner "shall be liable for any injury or damage to any person who enters in or on the the real property … who engages in recreational or conservation uses of the land … ." This statute expresses a public policy in favor of landowners opening property for recreation, and thus "encourages landowners to allow others to enter upon the land without the threat of litigation." Absent evidence to the contrary, an owner of real property owes no duty of care to persons entering into or onto real property for permitted recreational or conservation purposes.
In 2017, in Owens v. Motorists Mutual Insurance Company, 2017 Ark. App. 565 (Dec. 6, 2017), the Arkansas Court of Appeals considered whether a case should be dismissed if the plaintiff fails to comply with Arkansas Rule of Civil Procedure 26, which requires that a party who "seeks discovery" must "provide and supplement … a full and fair disclosure of … the identity and location of persons having knowledge of the facts." At trial, the circuit court thought the plaintiff had been aware of a particular witness, but had nonetheless failed to provide the necessary information in this regard . The appellate court reversed, finding that, because plaintiffs did not "seek discovery" relating to the witness in question, Rule 26 did not apply, and thus refusing to uphold the circuit court’s dismissal.
In Adair v. Adair, 2018 Ark. 28 (Feb. 1, 2018), the court held that Arkansas law does not recognize common law "wage attachments" as a remedy for enforcing child support payments. Common law "wage attachments" attempt to compel wage garnishment via contempt of court proceedings. In such cases, the court can order an employer to attach wages from an employee. An order to garnish wages under the garnishment statute, A.C.A. ยง 16-112-101 (1987), on the other hand, must "be served on the employer’s place of business directly, or where it may be found." Because there is no statutory authority that would permit the imposition of common law "wage attachments" in this context, the court concluded that the circuit court abused its discretion in sanctioning such relief.
In Heirs of Hughes v. Hayes, 2017 Ark. 383 (Oct. 5, 2017), the court held that a no-fault divorce statute is a lawful exercise of police power, and that no compensation is owed as the result of its enactment. In 2010, the General Assembly enacted Act 919, codified at Arkansas Code Annotated section 9-12-311 (Supp. 2010), requiring all divorce actions to be filed under the no-fault divorce statute. This law rendered sections 9-12-308 and 9-12-310 of the Code, which allowed for divorce proceedings based upon fault grounds, surplusage. The court considered whether this law impermissibly applied a retroactive effect to those sections of the Code. The court found that the law is "sufficiently remedial," and that, because the law’s primary purpose is to remedy an ongoing social mischief and provide a new remedy for an existing evil (i.e., eliminating the social ill of litigation abuse) the no-fault divorce statute qualifies as remedial in nature. As such, the statute is constitutional.