Title to Property, Title to Marriage: The Social Foundation of Adverse Possession and Common Law Marriage

43 Pages Posted: 15 Jul 2011

See all articles by John L. McCormack

John L. McCormack

Loyola University Chicago School of Law

Date Written: Winter 2008

Abstract

This Article will show that adverse possession and common law marriage are related legal doctrines in that they share a common social foundation, a core component of human social ordering, which legal philosopher Lon Fuller called the “language of interaction.” Basically, the language of interaction includes shared norms that tell people how to behave and the likely behavior they may expect from others in various social contexts. This Article will show how adverse possession and marriage-like cohabitation generate expectations that there is ownership or a marriage. At some point, these expectations eventually may lead to legally binding conclusions that the parties are owners or spouses, even without any showing of reliance on them.

After showing how adverse possession and common law marriage function to make more reliable expectations of ownership or marriage based on persons acting like owners or those in a marriage, this Article then considers whether adverse possession or common law marriage doctrine should be modified, abolished, or extended.

Keywords: adverse possession, common law marriage, property, marriage

JEL Classification: K11, K40

Suggested Citation

McCormack, John L., Title to Property, Title to Marriage: The Social Foundation of Adverse Possession and Common Law Marriage (Winter 2008). Valparaiso University Law Review, Vol. 42, No. 2, 2008, Loyola University Chicago School of Law Research Paper No. 2011-012, Available at SSRN: https://ssrn.com/abstract=1885811

John L. McCormack (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

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