About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

20 Child & Fam. L. Q. 1 (2008)

handle is hein.journals/chilflq20 and id is 1 raw text is: 1 Common-law marriage: myths and misunderstandings Rebecca Probert* This article investigates the source of the myth that prior to 1753 cohabiting couples would have been protected by a 'common-law marriage'. It shows that neither the term nor the concept existed at the time and traces modern misunderstandings to the early nineteenth century. It goes on to suggest that the widespread but mistaken belief among modern cohabitants in the existence of 'common-law marriage' must also be of recent origin. INTRODUCTION W hat do the Loch Ness monster, the nine lives of cats and common-law marriage have in common? Answer: they are listed as 'three things that don't exist' in the leaflets published by the 'Living Together' campaign, which aimed to inform cohabiting couples of their current lack of rights, as well as to abolish the term 'common-law marriage'. There is, however, an important distinction between the three. It is unlikely that respectable scientists would claim that the Loch Ness monster did once exist, or that there is some truth in the superstition that cats have nine lives. Yet lawyers and historians regularly claim that common-law marriage did once exist.' Is there, therefore, at least some truth behind the myth? The problem in answering this question is the fact that the phrase 'common-law marriage' is used in different ways to mean different things. When we talk of the 'common-law marriage myth' prevalent among cohabiting couples, we are referring to the mistaken assumption by such couples that cohabitation for a certain period of time gives them the same legal rights as married couples. But when we say it is possible to contract a 'common-law marriage' overseas where the local law is not available, we are, by contrast, referring to the possibility of a couple marrying by a simple exchange of consent. And which of these meanings - if either - is intended when we read (as we often do) that 'common-law marriage' was abolished in 1753?2 To disentangle myth from reality it is necessary to delve into the history of marriage law. The reasons why modern cohabitants believe that common-law marriage exists Senior Lecturer in Law, University of Warwick. I am grateful to Stephen Cretney and Liam D'Arcy Brown for their helpful comments on an earlier draft of this article. Any errors remaining are of course my own. See eg J. Gillis, For Better, For Worse: British Marriages 1600 to the Present (OUP, 1985); A. Barlow, S. Duncan, G. James and A. Park, Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (Hart, 2005). 2 The date is that of the Clandestine Marriages Act, which put the law of marriage on a statutory basis and provided that a marriage that was not preceded by banns or licence, or not celebrated in church, was void. In addition, parental consent was required for minors marrying by licence, and parents could also forbid the banns to prevent a marriage going ahead, although their positive consent was not required if the marriage was by banns: see further R. Probert, 'The Judicial Interpretation of Lord Hardwicke's Act of 1753' (2002) 23 Journal of Legal History 129. These requirements were not, however, as innovatory as has sometimes been argued: see R. Probert, 'The Impact of the Marriage Act of 1753: Was it Really A Most Cruel Law for the Fair Sex?' (2005) 38 Eighteenth-Century Studies 247.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most