Reviews
| Published date | 01 January 1984 |
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01643.x |
| Date | 01 January 1984 |
RlEVIEWS
LEGAL MARRIAGE-WHO NEEDS
IT?
THE
MARRIAGE
CONTRACT. By LENORE
J.
WEITZMAN. New York:
COHABITATION Wmowr MARRIAGE. By
MICHAEL
D.
A.
FREEMAN
and
CHRISTINA M. LYON. Aldershot, Hants.: Gower, 1983. 228 pp.
UNMARRIED COUPLES. By WINIFRED H. HOLLAND. [Toronto: The
Carswell Company. 1982. 249 pp. (incl. index) Can.$32.50.]
THE
current plethora of books about cohabitation might be taken to indicate
that we have before us a new social phenomenon.’ This is
not
so.
What is
new
is
legal concern with those who live together without mamage. But
there is nothing particularly new about “living tally” as it used to be called.
Legal regulation of private relationships is a fairly recent event in human
history and it is this intervention that has created the problem of how
to
handle cohabitation. There can be
no
doubt that
two
centuries of legal
regulation of marriage, with cohabitation classed as sin and outside law,
have given way to the law’s attempt to further extend its regulatory function.
Mayhew’ and Booth3 in their travels amongst the Victorian urban poor
reported
on
the prevalence of cohabitation. John Gillis‘
has
reconstructed
the lives of rural people in Wales and elsewhere living tally. SmoutS has
The Free Press. 1981.
536
pp. (incl. index) $17.95.
I
(incl. index). €15.00.
1
See also Anne Bottomley, Katherine Gieve, Gay Moon and Angela Weir, The
Cohabitation Handbook
(London: Pluto Press, 1981); Martin
L.
Parry,
Cohabitation
(London: Sweet
&
Maxwell, 1981); Stephen Parker,
Cohabitees
(Chichester: Barry Rose,
1981); John Eekelaar and Sanford Katz (eds.)
Marriage and Cohabitation in Contemporary
Societies
(Toronto: Butterworths, 1980).
*
Henry Mayhew found that marriage was exceptional among London costermongers.
London Labour and London Poor
(1864),
Vol.
1,
p.22. E. P. Thompson,
The
Making
of
the English Working
Class
(1963), p.56, quotes Patrick Colquhoun’s comments in
1800
on
“the prodigious number among the lower classes who cohabit together without maniage.”
Thompson ascribes this to the “absolute impossibility
of
divorce,” but there are other
possible explanations.
Charles Booth concluded that although legal marriage was “the general rule, even
among
the roughest class,’’ that “non-legalised cohabitation is far from uncommon” among
those marrying later and also after desertion of an earlier partner. He saw such arrangements
as
a
“form
of
divorce without the assistance of the Court” with
no
need for legal
intervention.
Life and Labour
of
the
People
of
London
(1903), Final
Vol.,
pp.4142.
‘
John Gillis, “Resort to Common Law Marriage in England and Wales, 1700-1850,”
(1980),
Law and Human Relations, Past and Present Society,
pp.l-25, argues that in the
post-Hardwicke’s Act era from 1753 some women maintained previous
common
law
practice as a way of retaining a separate legal identity. They continued to marry through
private contract as in the pre-1753 days because they did not want to be subjected to the
rules
on
the unity
of
spouses. The view is expressed by Gillis that the legal regulation
of
marriage by the state represented “an undisguised triumph of property, patriarchy, and
male dominance generally.”
T. C. Smout, “Aspects of Sexual Behaviour in Nineteenth-Century Scotland,” in P.
Laslett, K. Oosterveen, and R. M. Smith (eds),
Basrardy and irs Comparative Hktory
(1980), pp.192-216.
T.
C. Smout, “Scottish Marriage, Regular and Irregular, 1500-1940,”
in R.
B.
Outhwaite (ed.),
Marriage and Society
(1981), pp.204-236. See also
Ian
Carter,
“Illegitimate Births and Illegitimate Inferences” (1977) 1
Scotrish Journaf
of
Sociology
125-135.
T.
C. Smout, “Illegitimacy-a reply” (1977) 2
Scottish Journal
of
Sociology
97-103.
.
111
112
THE MODERN LAW REVIEW
[Vol.
47
done the same for Scotland. There is evidence of customary arrangements
for cohabitation outside marri-age in North West England: and
of
other
customs such as “jumping the broom,” “living over t’brush.”’
Demarcation between legal marriage and custom was necessary to the
propertied classes with their concern for legitimacy and succession. Helm-
hob? has documented medieval disputes before the ecclesiastical courts over
the existence
of
marriages. But, as recent research has reminded us,
marriage for the mass
of
people was a private affair, the result
of
~ontract.~
The Cambridge population group’O has warned against applying modern
concepts and judgments to habits
of
the past which were informed by quite
a different
mentalitk.
It is now recognised that what was previously inter-
preted by scholars as low marriage rate and high illegitimacy rate in
seventeenth- and eighteenth-century England was not
so
interpreted by the
protagonists themselves.” For those who privately contracted marriage were
not required to get involved in formalities. Their own agreement sufficed.12
However, marriage and baptismal records did not reflect this. It is important
to stress that the law only outlawed these private arrangements with the
passing
of
Lord Hardwicke’s Act in 1753,” and that many couples main-
tained the old customs by accident
or
design.
Recent work on family reconstitution from parish and other records
suggests that caution must be exercised before drawing conclusions about
whether a couple were married
or
not, as prior to 1753 both private contract
and clandestine marriage were upheld by the church courts.14 It is legal
regulation which is the late arrival at this particular feast, and with it came
Peter Laslett,
The World We Have Lost
(2nd ed., 1971). p.152 refers
to
the blessing by
the vicar in the Duddon Valley of Cumberland of 17 couples who were living together.
This took place at Frith Hall in Ulpha in 1730.
Richard Helmholz,
Marriage Litigation in Medieval England
(1974). is the classic work.
As Martin Ingram, “Spousals Litigation in the English Ecclesiastical Courts,
c.
135O-c. 1640
in Outhwaite (ed.),
op. cit.,
note 5
(supra),
pp.35-57 reminds
us,
cases concerning the
formation
of
marriage were the bulk
of
matrimonial litigation before the English ecclesiast-
ical courts.
G.
R. Quaife,
Wanton Wenches and Wayward Wives
(1979), p.61, argues that most of
the acts seen by the authorities as premarital sex were seen by the village community as
activities within marriage.
lo
Research on illegitimacy is summarised by Peter Laslett,
Family Life and Illicit Love
in Earlier Generations
(1977). For a later discussion of the new research see Peter Laslett,
“Introduction” to Laslett, Oosterveen and Smith (eds.),
op.
cit.,
note
5
(supra).
K.
Wrightson, “The Nadir of English Illegitimacy
in
the Seventeenth Century,”
ibid.,
pp.176191 at p.178 refers
to
the complexity of the issue of what constituted valid
matrimony.
l1
E.
A. Wrigley, “Clandestine Marriage in Tetbury in the late Seventeenth Century’’
(1973)
Local Population Studies
No.
10,
pp.15-21, at p.19. Anthea Newman, “An
Evaluation of Bastardy Recordings in an East Kent Parish’’ in Laslett, Oosterveen and
Smith (eds.),
op.
cit.,
note
5
(supra).
pp.141-157 at p.148.
l2
Henry Swinburne,
Spousals
(1686). reprinted
in
1978, is a complete study of the law
up
to
the 17th century.
It
seems reasonable
to
infer that private definition
of
marriage
formation waned in face
of
Poor Law and community regulation. See D. Levine and
K.
Wrightson, “The Social Context
of
Illegitimacy in early modern England” in Laslett,
Oosterveen and Smith (eds.),
op. cit.,
note
5
(supra),
pp.158-175 at p.173.
I’
A. H. Manchester,
Modern
Legal
History
(1980), Chap. 15, gives a straightforward
account of the legislation in which he assumes that it was a necessary and rational response
to clandestine marriage.
For
a recent account
of
clandestine marriage see Roger L. Brown, “The Rise and Fall
of the Fleet Marriages’’ in Outhwaite (ed.),
op. cit.,
note 5
(supra),
pp.117-136. Joseph
Jackson,
The Formation and Annulment of Marriage
(2nd ed., 1969), Chap. 1, gives a
useful summary of the history of formless marriage and clandestine marriage, and of
legislative attempts
to
prevent the latter.
’
Samuel Pyeatt Menefee,
Wivesfor
Sale
(1981), Chap. 2.
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