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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.




Mar 172012

Given that I’m not exactly a fan of state-sanctioned marriage and in the unlikely event of me marrying someone, it is not going to be a man (sorry guys!), I’m pretty disinterested in if gay marriage becomes legal or not. Just like anyone else who is heterosexual, the only effect that legal homosexual marriage has on me is that I might just find myself attending such a marriage as a guest.

But given that it makes no great difference to me, I’m in favour of the recent plans of the UK government to legalise gay marriage – if something has no harmful effects on anyone else, why should it be illegal? If two people want to make the public commitment of marriage, what right has anyone to forbid that?

The religious conservatives are up in arms about the plans of course – anything that sanctions anything to do with homosexuality is going to cause them to come out of the churches up in arms, and frothing at the mouth.
Of course they have a perfect right to protest against this. And they have a perfect right to forbid homosexual marriage amongst their own congregations.

But they do not have the right to impose their views on the rest of us.

Mar 142010

Today when we consider marriage we think of it as an official ceremony performed by a representative of church or state; without their sanction, no “marriage” can be called such. It wasn’t always quite like that. Given the pressure to legalise marriage between two people of the same sex (apparently a “civil partnership” isn’t quite enough), it may come as a surprise that it is entirely possible that there have been single sex marriages in the past.

The idea of marriage being a ceremony conducted by an official (a priest or state official) is actually relatively modern. It was not until the Council of Trent in the 16th century, that the church insisted that marriage could only be performed by a priest. Whilst the church had laws governing marriage, the ceremony itself was a private one between two individuals. This would often be followed by the priest blessing the marriage, but that was a separate ceremony.

If you look at genuine early English churches (many of those old looking churches in sleepy villages are in fact 19th century), you will notice that many have quite large porches. There are various reasons for this, but principally it was a convenient place for conducting business that either didn’t require the whole church, or did not have any business in the church. And marriages were often conducted in this porch before the wedding party would enter the church for the priest to bless the marriage.

Now in almost all circumstances, the marriage would be conducted in this way; in public with a notice published on the door of the church some time in advance for people to object to the marriage if there were suitable grounds. But there was nothing to stop anyone from having a private (and probably illegal) marriage in their own way. It was even accepted by the church that merely saying the phrase “I marry you” was enough to constitute a marriage – effectively a common law marriage which was abolished in 1753. Such a marriage may not have been accepted by secular law, but would as far as the church was concerned been a marriage.

This would seem to indicate that marriage was originally a personal commitment between two people with nobody in authority sanctioning it. And only concerns over property rights and the urge that all authorities have to regulate everything changed that. Property? Of course to the rich, the effect of marriage on property ownership was exceptionally important – enough that many marriages were arranged principally to ensure that property ownership was preserved in some way.

So we know that many marriages in the past were arranged marriages conducted for merging property holdings ? Well there is plenty of evidence that the rich conducted marriage in such a way, but there is little to say that the vast majority who were poor also did so. Why arrange a marriage for property when neither partner owns any land ?

Of course there was also a tendency to pick a future partner for possible future earning power rather than for love. However we simply do not know enough about marriages in the past to say that love marriages did not exist.

But enough of the past. What about the present ? Is it not time to tell governments everywhere to keep out of our private business and take back ownership of marriage ? It is no business of government or any other authority to tell individuals whom they can or cannot marry. Sure, there are plenty of reasons why marriage should be registered with the government, but why do they insist the ceremony must take place in front of an appropriate official ?

The instant you allow private marriages, you solve so many problems that it is plainly (to me) an obvious thing to do :-

  • No nutters with an axe to grind can stop single-sex couples getting married, or impose any form of lesser marriage.
  • Private marriages mean you can get married anywhere – if I were to get married, my choice of spot would be on a hill north of Arundel overlooking Amberley mount. Not the kind of place that would normally be allowed by the government but why should they have a say on where I get married ?
  • It allows for marriages to be much cheaper. According to a quick search the average cost of getting married in the UK in 2006 (so it’ll have gone up since) is £25,000 – which is plainly ridiculous. Anyone can understand wanting an unforgettable day for a marriage, but surely it can be done for cheaper than this ? At this cost, many people put off getting married either because they just can’t afford it, or because they have better things to spend the money on – like putting down a deposit on a house!
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