By Robert Whiston FRSA, May 5th 2009
Cohabitation poses all sorts of problems for English culture and its legal system.
Why should cohabitation be so contentious when, in essence, it is as old as marriage itself and as normal as apple pie ?
Part of the answer is that the epoch somewhere between the Stone Age and man’s first attempts at civilisation both regimes were formalised.
Part of the answer is that unlike the new-found colonies of the 17th and 18th centuries where no ecclesiastical structures existed, Britain has never had common law wives. It has never entertained the concept or seen the need for it.
And the final part of the answer perhaps lies in the turmoil and history of marriage Acts that have bedevilled the secular legislation since it took over the role and duties of the ecclesiastical courts in the 19th century
Countries such as New Zealand, Australia and Canada, plus the USA, don’t have the history and hang-up of Britain’s collective culture because of the unsynchronised nature of their ever-expanding frontiers and the daily difficulties this imposed. With untamed borders still in a fluid state, a harmonised, all-pervasive system of law enforcement was impossible. It follows that a homogeneous judicial structure was slow to emerge and the pastoral care the church was able to effect was patchy.
The practical needs of both urban and frontier developments lent themselves to regimes that endorsed rather then penalised informal marriages or cohabiting.
The church authorities can be pragmatic when required. Before the secularisation of marriage and divorce, churches could, and would, recognise/enforce marriages that might not comply with the 1563 Council of Trent guidance.
The system of marriage imported into these countries at the time was a two tiered one. There was the very informal “sponsalia per verba de futuro”, where parties promised to marry one another at some future date. They could live together as man and wife but the very act of sexual intercourse transformed the status into the second alternative that of “sponsalia per verba de praesenti” or spoken marriage.
While the status of the former could be compared with that of an ‘engagement’, the second ‘sponsalia per verba de praesenti’, involved a ceremony, in which words using the present tense were spoken. The two parties became man and wife at the moment of making their promises’. []
What has made a person publicly a ‘married person’ has varied slightly from time to time. []
Sometimes it was enough that the immediate community viewed the union as creating man and wife status. The lack of mobility (the opportunity to run out on the commitment), coupled with the lack of assets to fight over further endorsed this informal acceptance. This informality fed into the occasion “wife sale” where usually the poor and dispossessed traded incompatible partners on market day.
If this conveys a slightly chaotic picture then it also appeared that way to legislators in the 18th century who unsuccessfully tried to devise a replacement for Ecclesiastical courts. The problem was that compared with today their was a veritable menu of courts to chose from that had grown up unsystematically with many courts claiming jurisdiction over the same subject matter
Bills introduced in 1733 and 1734 to reform the Ecclesiastical courts failed, largely owing to a lack of consensus of what should replace it and the form it should take.
By the mid 19th century parliamentary agreement was reached and by the 1870s the various Judicature Acts were passed. The effect of these Acts was to totally re-structure English civil and criminal law courts by welding the diverse courts into one unitary structure. A new Appeals process was laid out, and ‘the church’ was relieved of its power over marriage, divorce and probate.
The inefficiencies for which the Ecclesiastical courts at the time were heavily censured were no better dealt with by a secular parliament as the following list of Acts demonstrates (Fig A). []
No sooner had one problem been attended to than another discrepancy arose requiring another amending piece of legislation. We can suppose that the church in concert with the King devised legislation during the medieval and Tudor periods. The church, one has to suppose, quietly got on with evolving its canon laws to suit circumstances over the centuries.
All that changed by the time the 19th century had been ushered in. A more assertive parliament began tentative reforms in the first decade, i.e. 1804, and its decisions became part of the public record.
Following the initial success of the 1753 Act parliamentary amendments came thick and fast.
What is difficult for many to grasp is that although England’s Henry VIII had dissolved several of his marriages, and is well-known for the abolition of the monasteries and had usurped the power of the Roman Catholic Church with a Protestantism that he controlled, England in many ways was still more Catholic than Protestant. Alone among European Protestant countries, England had no divorce laws in the 16th and 17th centuries with fundamental (but very limited) changes having to wait until 1857.
It can be argued that continental catholic Europe of the Napoleonic era had overtaken England in this department.
The next fundamental change in England came 100 years later in the twentieth century with the inauguration in 1971 of the Divorce Reform Act, 1969.
Is England a naturally cautious and conservative nation ? Is it slow to pick up on new and untried ideas, or wise enough to avoid fashion for fashion’s sake ?
It may bring a smile to some readers to learn that until the restrictions dating from 1215 were eased a few years ago on where and how you married, the idea of holding a wedding on a hotel lawn or on some far flung sun drenched beach was something of a novelty to the British.
 See Wentersdorf, p. 103. See also ‘Road to Divorce’, Stone L. Most divorce case hearings were not to dissolve a marriage but to validate it against contrary assertions of clandestine marriage.
 Sometimes it was simply a statement in front of witnesses that the women took the man and the man took the woman as spouse. The lack of formalities or the need for parties to witness the event led to couples eloping across the border to marry at, for instance, Gretna Green.
 Lord Gardiner, the Lord Chancellor, House of Lords, Hansard 01 April 1965 http://hansard.millbanksystems.com/lords/1965/apr/01/law-commissions-bill#S5LV0264P0_19650401_HOL_27
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