The Myth of Common-Law Marriage
The myth of common-law marriage – that couples who live together have the same legal rights as married couples – springs from a time when there was uncertainty about what constituted a marriage. Church and State marriage ceremonies are relatively recent-grafted onto older popular rites whose legitimacy was not dependent on written law.
Marriage by consent
In earlier times, the validity of a marriage depended on the consent of the two parties publicly announced or at least symbolised by the exchange of rings or love tokens.
These common rituals were spoken transactions, celebrated by the parties themselves; their witness and memory of the events were the evidence that gave the marriage legitimacy.
Among Anglo-Saxons, the Beweddung was a public ceremony led by the father of the bride. The groom and his people offered weds to the bride’s guardians-guarantees that she would be looked after.
In Scotland and the North of England, couples exchanged vows (plighting the troth) by joining their hands in the handfast. He then called her wyf and she called him husband. A woman without a guardian – such as a widow – gave herself to the groom. The partners exchanged weds and rings, kissed and clasped hands, overseen by an orator. The gift by a man to a woman of a ring was popularly believed to imply a formal contract.
Married “in the eyes of God”
In the 13th Century Pope Innocent III declared that the free consent of both spouses, not the formal solemnities by a priest or in church, was the sole essence of a marriage. A valid and binding marriage was created by a verbal contract, performed by an exchange of vows to this effect between a man and a woman over the age of consent (14 and 12), witnessed by two persons, and expressed in the present tense. A promise in the future tense was only binding if it was followed by sexual intercourse which was taken as evidence of consent in the present.
Married “in the eyes of God and the Church”
Priests became involved, first as orators to invite witnesses and prompt the vows, later offering the church porch as a place to announce and witness vows made at other public places such as the market cross. Gradually the clergy took over the role of orator, asking those attending whether there were objections to the marriage and then getting the couple to repeat publicly their betrothal agreement which was symbolised by rings and coins placed in the priest’s book.
By the 1500s most people brought their vows to church as the final part of the marriage process – the first being the betrothal – and a church service started to take place at the altar rather than in the porch. Although the church did not approve of men and women taking themselves as man and wife before their vows were ratified by the church, since canon law recognised this as the basis of holy matrimony, the church courts recognised common rites-spousals, handfasts, and trothplights followed by intercourse-as valid marriages.
Marriage and the law
All three branches of the law – ecclesiastical, common and equity – had control over some aspect of marriage. Medieval canon law determined the rules of marriage, they were revised and restated in the Canons of 1604 and enforced by the church courts. The criminal courts could become involved if either party chose to sue the other for a statutory offence such as bigamy. Equity law had jurisdiction over trust deeds and became involved in marriage where there was litigation concerning marriage settlements and the enforcement of trust deeds. The various courts overlapped and contradictory verdicts as to what was or was not a legally valid marriage could be returned.
After inheritance, marriage was probably the single most important method for the transmission of property. As a result much of the litigation about marriage was litigation about property over which the common law had legal jurisdiction.
Uncertain unions and clandestine marriages
By the sixteenth century large numbers of people were living together in situations of varying uncertainty, as there was no consensus about how a legally binding marriage should be conducted. Some – especially the poor – still opted for private verbal contracts, valid in “the eyes of God”, yet often unenforceable in the courts.
Others chose a clandestine marriage conducted by a clergyman following the ritual of the Book of Common Prayer yet violating canon law in a number of ways, most notably by being performed in private without either the reading of banns or a valid licence from a church official. The advantage of such a ceremony was that the involvement of a clergyman gave it respectability and, most importantly, the marriage was recognised as legally binding having full property rights in common law. There was a huge demand for clandestine marriages as they were considerably cheaper than official church marriages and held in secret – an important consideration for minors who feared opposition from parents or servants who feared dismissal.
The State steps in
By the 1730s public opinion was beginning to turn against the clandestine marriage system with complaints in the London newspapers about the fraudulent seduction of heirs and heiresses. In 1753 Lord Harwicke’s Marriage Act, “for the better preventing of clandestine marriages”, stipulated that no marriage other than one performed by an ordained Anglican clergyman in the premises of the Church of England after either thrice-called banns or purchase of a license from bishop or one of his surrogates was valid. In the case of both banns and license, at least one party had to be resident for at least three weeks in the parish where the marriage was to be celebrated. Parental consent for those under 21 was strictly enforced. Only the Quakers and Jews managed to have their marriage rites exempted. There were strong objections to the Act – “proclamations of banns and publick marriages are against the nature and genius of our people” – wrote the Gentleman’s Magazine.
The continuation of common-law marriage practices
Despite the Marriage Act of 1753 ordinary people still tended to keep marriage informal – many felt that the state and the church had no business in their private lives. One informal ceremony was the Gretna Green wedding. The Marriage Act applied to England and Wales, so crossing into Scotland, where you only had to have your consents witnessed, became popular. As the railways opened up, ‘package tours’ offering bed and breakfast for ‘celebration and consummation’ were developed. In Yorkshire, Lancashire and Cheshire those who had gone through some kind of common-law rite were said to be “married on the carpet and the banns up the chimney” or “married but not churched”.
In almost every part of Britain the term “living tally” established itself:
They’re livin’ tally
They’ve made a tally bargain
They’re noant wed, they’re nobit livin’ tally
While the origins of the term tally are obscure the term became widespread in the nineteenth century. It conveyed the notion of a definite, if conditional contract or “bargain”, based on the consent of both parties and protecting the women in the case of motherhood. Studies of rural areas have found as many as one in seven couples “living tally”. In the mid-Victorian period and throughout the following hundred years common-law arrangements reduced considerably. Since the 1960s a series of administrative rulings, court decisions and laws have given some legal rights to cohabitees, and at the same time the number of couples in cohabiting unions has increased dramatically. These limited rights, however, do not amount to the restoration of the legal recognition of common-law marriage, which ceased definitively with the Marriage Act of 1753.
John R Gillis (1985) For Better For Worse: British Marriages 1600 to the Present. Oxford University Press
Peter Laslett (1979) The World We Have Lost. Methuen
Laurence Stone (1995) Uncertain Unions and Broken Lives. Oxford University Press