Sep 212016

In England and Wales, there is no such thing as Common-Law Marriage, except when there is.

Which basically comes down to the fact that courts accept informal marriages where there was no other choice – the example on the Wikipedia page is of prisoners held by the Japanese who could not marry according to the formal process.

So where did the notion of common-law marriage come from? That Wikipedia page claims that it was some sort of group-think mistake made in the 1970s … well perhaps.

In fact, Scotland (until 2006) had something that would in England be called ‘common-law marriage’, and England in all likelihood had something equivalent even if the lawyers claim there was no such thing as “common-law marriage”.  They are right to a certain extent, but the history of marriage law in England is byzantine and twisted.

Details of what happened in England regarding marriage before the christian church came to dominance is shrouded in mystery, but in all likelihood marriage was a legally binding contract initiated by oath (it should be noted that an old form of the marriage vow includes the phrase “I plight my troth” and the word “plight” is the Old English word for oath). For those who are suspicious of a simple sworn oath being the basis for a marriage should note that in Anglo-Saxon times, the sworn oath was a fundamental building block of society, and nobody was lower than an oath-breaker.

One indicator of this are the marriage vows; a pompous religious or civil official may pronounce “You are now married” or even “I declare you married”, but the important part of the ceremony are the vows that the two people swear to each other.

In the early medieval era, the state had no time for laws regarding marriage – it was still effectively a private contract between individuals. The church on the other hand took in interest in dealing with abuses – bigamy, fornication, prevented forced marriage (probably not entirely successfully), etc. But the church could not and did not perform marriages; marriages would often be “blessed” within the church, but marriages themselves took place outside.

One of the important principles established was that an illegal marriage was still a marriage.

The church took control of marriage after the Council of Trent, and declared that no marriage was legal unless it took place within a church and the ceremony was performed by a priest. Yet in all likelihood ‘irregular marriages’ still took place especially when extra-parochial areas, or remote under-served parishes were considered (some remote areas in the North could see a priest as little as once a decade or longer).

And of course getting married required money – the priest would insist on his cut as payment for his services. So the poor probably carried on doing what their ancestors had done, and simply declared they were married and got on with it.

The state took over marriage law in 1753, in an attempt to combat “clandestine marriages” (it didn’t entirely succeed; those in need of such marriages merely eloped to Scotland where the law on marriage was more relaxed), and it is often said that this act abolished common-law marriage.

It didn’t. There was no such thing.

A 15th century marriage was legally nothing more than a contract as in an agreement to supply certain goods in exchange for land. It looked like common-law marriage, and it would not be too surprising if rumours of how marriage used to be persists down to the present day. Especially when you consider that a significant number of non-conformists who avoided CoE churches would have been ‘married by consent’ rather than ‘married in law’.

So what does this matter? Well apart from being historically interesting, it is important to note that unless you are officially married then you do not have the legal rights of marriage. So those who believe in ‘common-law marriage’ are welcome to continue to do so, but should bear in mind that it has no legal status.




Nov 152009

I was surprised a number of years ago when having a pleasant argument with someone online when he claimed that the English/British government was a theocracy. It had never occurred to me that the English government could be called a theocracy, but with the monarch being both head of state and head of the state religion there is a grain of truth to it.

Before going on, I will explain that although I am going to use “English” all the way through this, in later periods of history it should perhaps be “British”. But for convenience and because much of the points become well before the British union, I will use “English”. That’s not to say the Welsh and Scottish are irrelevant; just that bringing consideration of them in, will confuse the whole issue

As mentioned before the English monarch is both the head of state and the head of the Church of England. So a theocracy then. Well, no. Anyone who argues such is ignorant of the way in which titles of nobility work – whilst a single person may hold multiple titles, they are distinct and separate. For instance, the current Queen is correctly known as the “Lord of Mann” on the Isle of Mann, and the “Duke of Normandy” in the Channel islands. Neither are part of or will ever be part of the English monarchy. It is theoretically within the power of the holder of a title to gift that title to someone else – for instance it would in theory be perfectly possible for the Queen to lose the title “Lord of Mann” in a drunken poker game.

And yes such things have been known to happen, although if it were to occur in modern times it is likely to cause an outbreak of republicanism.

Another possible source of the idea that England is a theocracy are the “Lords Spiritual” who are 26 bishops and archbishops of the Church of England (or previous to Henry VIII’s reorganisation of government the “Church in England”) who sit in the House of Lords. And indeed if there were just 26 members of the House of Lords, and the House of Lords actually comprised the government, England would be a theocracy. In fact there are 724 members which means England is no more than 4% of the way to being a theocracy.

And of course the House of Lords comprises the government no more than I do. We often think of the House of Lords having more power than it in reality has had for centuries. On a very simplistic level, the House of Lords has been little more than the humorous sidekick in the struggle for power between the Monarch and the House of Commons.

Finally there is the argument that the power of the state is exercised at the local level by Church authorities (the “parish council” still has some residual authority even today in rural parishes). This dates from well before Henry VIII created the Church of England, and is an example of pragmatic government. This could be said to be an example of how theocratic the English government is, but neglects the fact that the authority was not delegated to Church authorities but to the parish officials.

Of course there is a little bit of hypocrisy in such a statement, but at no point was the authority delegated to the priest himself. It was delegated to the parish authorities who were already in place to perform such duties as the Church itself would not do – such as ensure that the maintenance of the community’s portion of the church was carried out (the Church itself looked to the maintenance of only the priest’s half of the church).

Initially local authority was delegated to the manor and the lord of the manor but this was found to be less than totally effective. This was due to the fact powerful aristocrats could come to be in charge of many manors and not all received effective authority. The parish authorities were on site and could be counted on to perform such duties as the King required.

Imagine a King pulling up his horse after journeying over a particularly poor road; tired, cold, wet, and angry. He would pop into the largest house in the village looking for accommodation and nourishment, and ask the most obviously in charge person to see to the maintenance of the road. He would not care a bit that the person he charged with such a duty was part of the Church hierarchy or not; he would just want one of his subjects to perform a necessary service.

The English government does have the Church intertwined throughout it as a historical artefact. But whilst the Church is there, it rarely interferes – for instance the Church “Lords Spiritual” very rarely actually vote on normal government matters. This is partially because the English government has never been properly dismantled and put together again without historical oddities, but the Church does not come anywhere near enough authority for the English form of government to be called a theocracy.

Sep 112009

Alan Turing was a computer scientist and a homosexual at the very dawn of electronic computing, and contributed enormously to the winning of World War II by being one of those behind the code breaking efforts at Bletchley Park. When you consider his contributions to the war effort and his contributions to the new field of computer science, his sexual orientation was the least important part of him. Yet because of his sexuality, he was prosecuted, lost his security clearance (which was particularly devastating because of the lack of other places he could make his contributions), and harassed by the British security services.

Eventually he committed suicide; almost certainly because of his harassment by society that couldn’t see past his sexuality and see his vast contributions and potential.

There are those who say he shouldn’t be forgiven because he was a homosexual and that is forbidden by god. That position is contemptible and not worth commenting on.

There are those who say he shouldn’t be forgiven because he broke the law of the time. Well the law was immoral and wrong. In many ways we are obligated to break laws that are immoral.

There are those who say he shouldn’t be forgiven because there were many other men persecuted because of their sexual orientation. Perhaps 100,000 men, or even more (oddly enough homosexual women were not persecuted to quite the same extent (although I’d welcome pointers to prove me wrong … well sort of)). There is a point to that objection, but forgiving a particularly shining example of such harassment is the first step on the path of getting all those persecuted men pardoned.

And Alan Turing is a good start to that process because even those who do not like homosexuality can be brought around to believing that Alan at least deserves to be forgiven because of his immense contributions.

But most of all he should be pardoned because he didn’t really do anything wrong, and honoured because of his contributions.

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