Common-law Marriage - History

History

In ancient Greek and Roman civilization, marriages were private agreements between individuals and families. Community recognition of a marriage was largely what qualified it as a marriage. The state had only limited interests in assessing the legitimacy of marriages. Normally civil and religious officials took no part in marriage ceremonies, nor did they keep registries. There were several more or less formal ceremonies to choose from (partly interchangeable, but sometimes with different legal ramifications) as well as informal arrangements. It was relatively common for couples to cohabit with no ceremony; cohabiting for a moderate period of time was sufficient to make it a marriage. Cohabiting for the purpose of marriage carried with it no social stigma.

In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as a valid marriage one where the parties stated that they took one another as wife and husband, even in absence of any witnesses.

The Roman Catholic Church forbade clandestine marriage at the Fourth Lateran Council (1215), which required all marriages to be announced in a church by a priest. The Council of Trent (1545–1563) introduced more specific requirements, ruling that in the future a marriage would be valid only if witnessed by the pastor of the parish or the local ordinary (i.e., the bishop of the diocese), or by the delegate of one of said witnesses, the marriage being invalid otherwise, even if witnessed by a Roman Catholic priest. The Tridentine canons did not bind the Protestants or the Eastern Orthodox, but clandestine marriage was impossible for the latter, since marriage required the presence of a priest for validity. England abolished clandestine or common law marriages in the Marriage Act 1753, requiring marriages to be performed by a priest of the Church of England unless the participants in the marriage were Jews or Quakers. The Act applied to Wales, and to Ireland after the Act of Union 1800, although the requirement for a Church of England priest created problems in predominantly Roman Catholic Ireland. The law did not provide an exception there. The Act did not apply to Scotland because by the Acts of Union 1707 Scotland retained its own legal system. To get around the requirements of the Marriage Act, such as minimum age requirements, couples would go to Gretna Green, in southern Scotland, to get married under Scots law.

Marriages by Per Verba De Praesenti, sometimes known as common law marriages, were an agreement to marry, rather than a marriage.

The Marriage Act of 1753 also did not apply to Britain's overseas colonies of the time, so common law marriages continued to be recognized in the future United States and Canada. In the United States, common law marriage can still be contracted in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, the District of Columbia, under military law,. Except for same-sex marriages contracted by habit and repute, all jurisdictions recognize common law marriages that were validly contracted in the originating jurisdiction, because they are valid marriages in the jurisdiction where they were contracted.

All other European jurisdictions having long abolished "marriage by habit and repute", Scotland became the last to do so in 2006.