Common Law Marriage (or, more fundies fail history forever)

[Glass Cowcatcher]

Something in a recent thread piqued my interest:

Someone mentioned that common law marriage was created because people, in pre-industrial times, used to have trouble getting to the county seat or a church to become legally married.

This means, presumably, that young couples living together out of wedlock, or at least without a legally binding marriage, used to be common and geographically widespread.

Does anybody know...

1. First of, is that true?

2. Where, and when, did this start? USA? Britain, then imported to US law? Somewhere else? (I do not even know if non US countries have common law marriage.)

3. Roughly speaking, what was the percentage of common law marriages to legal marriages?

Just curious, because this seems to be another place where fundies overlook how things really were in Ye Good Olde Days.

[Witsec7]

Only a guess here but I suspect it came from British common law.

[Glass Cowcatcher]

Only a guess here but I suspect it came from British common law.

I want a source. Because, surely, America being created in God's Image and all, they would have intended for God Approved Unions from the very beginning.

[Just_Jane]

I believe it was common in some European countries for couples to be in sort of trial marriages for a year before actually marrying. often times this was done in order to insure that there would be heirs. They'd live as husband and wife for a year and then get married. Not sure where I read that though.

[Glass Cowcatcher]

I believe it was common in some European countries for couples to be in sort of trial marriages for a year before actually marrying. often times this was done in order to insure that there would be heirs. They'd live as husband and wife for a year and then get married. Not sure where I read that though.

SO I'm reading right that the point was actually to see if they could get pregnant before they got legally married? Wow. Fundy heads be asplodin'.

[Kitty]

There was no government oversight of marriage until, actually, the Protestant Reformation in Europe. Basically all you had to do was have a quick ceremony at the local church and then move in together. You didn't have to sign any documents until the Reformation, because the Protestants were hard-asses like that. There were some things that Catholics didn't bother enforcing that the Protestants cared very much about. Then again, this was in certain cities, not so much the countryside and England was always a bit of a special case when it came to Catholic/Protestant conflicts.

In the early United States, which was largely Protestant, people were just so spread out that going all the way to the county seat or whatever was too impractical. Marriages were recorded in other ways, so basically most marriages were common-law. This went on until the Civil War, because that was when all the states got a huge stick up their collective ass about interracial marriage. If you're wondering why anyone bothered to make gay marriage illegal, or come up with marriageable ages, a lot of that stuff was made up around the 1870s. So no matter if you were in a city or the asscrack of nowhere, you had to go to the county seat and get yourself a marriage license. Common-law marriage was no longer recognized, and today only four states recognize common-law marriage. It was started, basically, as a way to keep whites from marrying blacks. Nowadays it's used to keep gay people from marrying.

[Glass Cowcatcher]

Very interesting Kitty.

I know in the US, another factor was that after the civil war, veteran's benefits, including some to veteran's widows and spouses, were given out for the first time, so recording a marriage suddenly became more important.

[Just_Jane]

I did find this article

http://medievalscotland.org/history/handfasting.shtml

there is a part in it about marriage by habit and repute. That sounds like a common law type marriage.

[JesusFightClub]

IIRC, English and Scots law differed on this (we have different legal systems, it's complex).

We did not have common law marriage set into recentish law, the English did. Although generally we are more relaxed about shit legally, not on this point (is what I was told). But as Just_Jane says, in the far past people had different customs.

[luckystone]

I'm sure I've read somewhere that a lot of poor people in the UK didn't really have ceremonies or anything legal - maybe it was recorded in the church, but I think a lot just got together and then their families recognised them as married etc. I don't have any references for that though.

[singsingsing]

You didn't even need a ceremony in a church. All you needed was the agreement between the two people involved, which could be contracted anywhere - a house, a garden, a bed. I know this was the case at least to a certain point in the Middle Ages in England.

I was sure it was Calvinists/Puritans who insisted that marriage was purely civil - not that it wasn't important or that fornication/adultery were okay, but that it wasn't a religious sacrament.

[Caramel]

Common Law originated with Henry II's creation of a legal system that collected and organized legal precedents from the courts (and not incidentally strengthened the power of the civil authorities, and limited some of the judicial powers of the clergy). This was in the mid-twelfth century in Britain, so around 1150. Essentially it means that it made civil judges look at the precedents of other British courts to develop (some) logic and consistency in how laws are applied and injects some reality into legal ideals. So that's common law. Its basic forms govern about a third of the world's population -- mostly former British colonies and territories and whatnot. All of the United States except Louisiana (which is governed under a modified form of the Code Napoleon) follow common law forms and precedents in their courts.

Common Law Marriage was a kind of minimal legal standard for what marriage was and could be, including clandestine if the parties so chose. This was modified by assorted legislation in Britain with the Marriage Act of 1753, which didn't apply in Scotland, but they eventually got their own law. (Aside:In the mid-twelve-hundreds, the Catholic Church started taking an interest in saying who was and was not married. ) None of these acts applied in Britain's oversees colonies, so common law marriage continued in the U.S. Ten states in the U.S. and the Military Code still allow for common law marriage. Each of those ten states (and military law) may have slightly different requirements for what constitutes a valid common law marriage. Once those conditions have been satisfied in the relevant state, the parties are considered married in all of the United States because of the reciprocity of marriage law...which has been tested lately. Common law marriage or marriage by habit and repute has been done away with in Europe (with Scotland being the last to get rid of it, in 2006).

This is mostly from memory with little joggers of the memory pulled from wikipedia and the like, so don't go basing your rights of inheritance on anything in this note. But, I think I captured some of the gist of Plantagenet days to yesterday.

[crassy]

IIRC, English and Scots law differed on this (we have different legal systems, it's complex).

We did not have common law marriage set into recentish law, the English did. Although generally we are more relaxed about shit legally, not on this point (is what I was told). But as Just_Jane says, in the far past people had different customs.

Yup, they did. That is why Gretna Green was so popular. My husband's grandmother got married there and it makes me all kinds of proud!

So, history of Common Law marriage (http://en.wikipedia.org/wiki/Common-law ... ge#History)

History of Gretna Green: http://en.wikipedia.org/wiki/Gretna_Green

[NurseNell]

In colonial times and thru the movement west it wasn't uncommon for a couple to declare their intent to the community to live as man and wife. There had to be a certain number of witnesses. Then when a traveling minister or circuit rider came around the marriage would be solemnized, and often the first child had been born so was baptized. It was more common in sparsely settled areas. If you do genealogy you will find this in many families, especially those who settled in the frontier.

[VintageJen1984]

I don't think the fundies would be as upset as you might think. What would be important to them: making a promise to each other (with their families involved) that they would stay faithful and support each other [read]. No infidelity and no sex or cohabitating before making that promise. Have local religious leader involved in some way.

Incidentally, as an evangelical I was taught Mary was betrothed to Joseph when she turned up pregnant with Jesus. This meant that they owed each other all the duties of marriage except sex and living together. This is why even though they were only betrothed, not married, Joseph intended to divorce her before he saw the angel that told him not to.

Some fundies actually refuse to get legally married, in fact. The Botkins, I think, among others in their social club, believe that a marriage needs to be religious, but that legal marriage is for financial benefits and involves things like atheists and in some states, gays, getting married, which they want no part of. So they write up their own religious contract, which is recognized by their church, and don't get legally married. (If they live in a common law state, the joke's on them, because at some point, they'll be recognized as legally married, anyway.)

[Hane]

The Pearls don't believe in "gummint" marriage, either, because it's been "usurped by sodomites."

[Glass Cowcatcher]

I don't think the fundies would be as upset as you might think. What would be important to them: making a promise to each other (with their families involved) that they would stay faithful and support each other [read: man have job, woman clean house, have babies]. No infidelity and no sex or cohabitating before making that promise. Have local religious leader involved in some way.

Cohabiting couples do that. So do gay couples. You don't see the fundies going, "Living in sin! Sodomites! Oh, wait, they made a promise to each other, it's OK."

[Sola]

The Pearls don't believe in "gummint" marriage, either, because it's been "usurped by sodomites."

But.... but.... but.... Teh Gheys can live together as common law.... aeeeeeiiii! What is a fundie to do!

[fundiefan]

There was a time when neither the church nor the government gave a crap about things like marriage. It was the church that turned it into a sacrament and applied rules and morals to it.

I don't know facts or sources, but I've read a lot of history and in much of it, marriage was entirely different then than it is now or has been for the last few hundred years. Most marriages were, at one time, what we now call 'common law'. Then the church needed more control then the government even more than the church.

[Glass Cowcatcher]

There was a time when neither the church nor the government gave a crap about things like marriage. It was the church that turned it into a sacrament and applied rules and morals to it.

I don't know facts or sources, but I've read a lot of history and in much of it, marriage was entirely different then than it is now or has been for the last few hundred years. Most marriages were, at one time, what we now call 'common law'. Then the church needed more control then the government even more than the church.

Specific to Western history, anyway.

I think most other places have had different forms of marriage. Most of them were more about securing property transfer than love or religous values.

I want to say off the top of my head that ancient Greece and Rome had some kind of religious aspect to their weddings, but that was hardly the same things as the modern fundy interpretation.

I also seem to remember that the ancient Chinese documented marriages rather stringently, but they documented every.darned.thing.

[2xx1xy1JD]

Well, if you want to go WAAYYYYY back.....sexual intercourse was considered one of the 3 methods of betrothal in Biblical times, according to the Torah. It was a later innovation of the rabbis to frown upon using this particular method.

[heinz57]

I never heard of common law marriage in continental Europe (but then it doesn't use common law, so why would there be an exception for marriage).

In France only religious marriage was valid up until the French Revolution, when civil marriage was introduced. Since then the state only recognizes the civil marriage, and by law any religious wedding can only be performed after a civil marriage took place.

[samurai_sarah]

I never heard of common law marriage in continental Europe (but then it doesn't use common law, so why would there be an exception for marriage).

In France only religious marriage was valid up until the French Revolution, when civil marriage was introduced. Since then the state only recognizes the civil marriage, and by law any religious wedding can only be performed after a civil marriage took place.

Sorry to bump, I'm trying to catch up with FJ, after a while away.

Anyhow...for Europe, and Christian denominations, common-law marriage was thoroughly acceptable, until the Council of Trent (1545 - 1563). The Council of Trent determined that marriage is a Catholic sacrament, and determined its form. For Catholics only, mind you, after 1563 a valid marriage was one that was a sacrament, i.e.: reading banns, performed by a priest etc.

Before that, marriage laws and customs differed vastly, all over Christian Europe. For example, intercourse with a promise of marriage could be enough. In other places, simply declaring yourself married, was enough to constitute a marriage. Marriage wasn't all that important, unless it involved property. A lot of that changed with the Council of Trent, at least for Catholics. The Protestant side of things remained pretty much the way it had. That's to say that marriage largely remained a civil contract. *

In early 18th century England, for example, "marriage by declaration" was still possible. It was frowned upon, but legal. Imagine the equivalent of running off to Vegas, without telling anyone, and you get the idea. Hardwicke's Marriage Act 1753 changed that for England, while in Scotland, "marriage by cohabitation with habit and repute" remained legal until 2006. The "year and a day" idea of trial marriage, is largely fiction based on Scots inheritance laws, which stated that a couple had to be married for a year and a day, before either party could inherit from the other. What isn't fiction is that there was an awful lot of "trying it out". Church records and litigation all across Europe bear witness to that. Again, mainly in matters of inheritance.

An interesting read, if you're (general you) inclined that way, is Leah Leneman (2003) "Promises, Promises: Marriage Litigation in Scotland 1698 - 1830" NMS, Edinburgh. While discussing legal cases, the book provides a glimpse into what did, or did not constitute a valid marriage in the eyes of the law and society, in one of many European Protestant countries.

* Sorry, my Dutch and northern (Protestant) German history are sorely lacking, when it comes to social history post Reformation, so all of this is rather anglophile. Please, do correct me!