About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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
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.
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 nearly 3,000 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 with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most