Common Law Marriage

Explaining the history of “common law marriage” in England and Wales is no easy task, not least because so many misunderstandings surround the term. In modern usage, it has been applied to mean any of the following: (1) the canon law that governed marriage in England and Wales before the Clandestine Marriages Act 1753; (2) marriages celebrated overseas in circumstances in which the local law is not applicable; or (3) a cohabiting relationship. Each of these has its own history, and will be explored in turn, but each ultimately rests on misunderstandings about what was required for a valid marriage before 1754. Before 1754, the terminology of “common law marriage” was unknown. Marriage was governed by the canon law of the Church of England, which only recognized ceremonies conducted by Anglican clergy. Misunderstandings about the pre-1754 canon law first emerged in the early nineteenth century, when it began to be claimed that all that had once been required for a valid marriage was for the parties to exchange consent per verba de praesenti (i.e., in words of the present tense, e.g., “I take you as my spouse”) or, alternatively, an exchange per verba de futuro (i.e., in words of the future tense, e.g., “I will take you as my spouse”) followed by sexual intercourse. However, such exchanges are better understood as a binding contract to marry: a bare exchange of consent was not the equivalent of a marriage, either socially or legally. The nineteenth century also saw the canon law on marriage being described as the “common law” of marriage, to distinguish it from the statutory framework introduced in 1753. It found a new application outside England and Wales, with the belief that it had once been possible to marry by an exchange of consent providing a useful means of upholding marriages conducted overseas otherwise than in accordance with the local law. To that extent, English law did (and still does) recognize “common law marriage.” The application of the term “common law marriage” to cohabitation is a more recent development, dating back only to the 1960s. In the 1970s, this new terminology combined with new rights for cohabitants to generate the “common law marriage myth.” Scholars then constructed a backstory for this myth, rooting modern cohabitants’ mistaken belief that they had the same rights as married couples in the supposed recognition of “common law marriage” before 1754.