Also known as: traditional approaches
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A judicial view under which a marriage entered into for a limited purpose remains valid if the parties were competent and satisfied all procedural requirements. Collateral agreements disclaiming marital obligations are unenforceable as contrary to public policy but do not invalidate the marriage itself.
A judicial view under which a marriage entered into for a limited purpose remains valid if the parties were competent and satisfied all procedural requirements. Collateral agreements disclaiming marital obligations are unenforceable as contrary to public policy but do not invalidate the marriage itself.
Tobias Thomas and Tracy Torres obtained a marriage license and participated in a civil ceremony performed by a licensed officiant. They signed a side agreement stating the marriage existed only to secure immigration status and that they would never cohabit or provide mutual support. The court applied the traditional approach and held the marriage valid because the parties met all procedural requirements even though the collateral agreement was unenforceable.
A jurisdictional stance under which common-law crimes remain prosecutable even though the legislature has not enacted a statute codifying the offense.
Select any source to read its text and confirm it supports the definition.
A jurisdictional stance under which common-law crimes remain prosecutable even though the legislature has not enacted a statute codifying the offense.
Each sense below has its own examples, sources, and questions.
The traditional approach upholds a marriage that satisfies formal licensing and ceremony requirements regardless of the parties' limited purpose. The intent-based approach requires that the parties actually intend to assume the usual obligations of marriage. Without that intent the marriage is invalid.
No. The agreement itself is unenforceable as contrary to public policy, but the marriage remains valid once formal requirements are met.
State prosecutors charged Dana Ellis with a common-law form of public nuisance that had never been enacted as a statute. The court applied the traditional approach and permitted the prosecution, holding that the jurisdiction retains common-law crimes even without legislative codification.
It retains them. A defendant may be prosecuted for an offense recognized at common law even when the legislature has not codified the crime in a statute.
Supporting sources