The Common Law Marriage

DOIhttp://doi.org/10.1111/j.1468-2230.1959.tb00546.x
AuthorJ. A. Andrews
Publication Date01 Jul 1959
THE
COMMON LAW MARRIAGE
INFORMAL
marriages,
i.e.,
marriages contracted merely by consent
of the parties, have
a
long and protracted history. Such marriages
were recognised by early canon law and by the common law.’
They were contracted either by consent
per verba de praesenti
or
by
sponsalia per verba de
futuro
followed by consummation.
Sponsalia
per uerba de
futuro
created
no
legal obligations and gave rise to
no
change of status unless followed by consummation.
The Roman Church continued to recognise such marriages until
the so-called
Tametsi
decree of the Council of Trent
1545-63.
They were valid unions by English law until Lord Hardwicke’s
Marriage Act,
1753.=
It
may seem remarkable that
a
contract of marriage, which has
formidable religious, social and legal significance, should be
completed by an informal procedure. The reason is to
be
found
in the Church’s desire to regularise cohabitation, to save the
children of such unions from the stigma of bastardy and their
parents from the sin of fornication. Furthermore, of course, the
expectations of the parties at the time of their consent are made
good.
Lord Hardwicke’s Act called for publication of marriage banns
and solemnisation
of
marriage in the church of the parish wherein
at least one of the parties
to
the marriage resided before a minister
and two witnesses and registration of the marriage in the parish
register. But it remained possible for a common law marriage,
which is the name given to marriages
per verba de praesenti
that do
not satisfy the Marriage Acts, to be validly celebrated outside
England and Wales.
So
in
Dalrymple
v.
Dalrymple,J
argued before
the London Consistory Court,
it
was held that a marriage contract
without religious ceremony was a valid marriage since it took place
in Scotland. The evidence of the marriage contract was a paper
containing
‘‘
a mutual promise of marriage
and superscribed
‘‘
a
sacred promise.” The court argued that marriage in its origin was
a contract
of
natural law that might exist between two individuals
of different sexes although
no
third party existed in the world
as
indeed happened in the case of the common ancestors of all
mankind.” They took notice of the fact that in most civilised
countries acting under
a
sense of the force of sacred obligations
it
1
For
a
discussion
of
the validity
of
marriages
per
ccrba
de
praesenti
in canon
law and common
law,
nee Pollock and Maitland:
History
of
English
Lam,
VO!.
11,
pp.
368
et
scq.
2
26
Geo.
2,
c.
33.
Thin
atatiite applied only
to
England and
Wales
and
within
these coiintries
it
had
no
application
to
Jews
or
to
Quakers.
3
(1811)
2
Hag.Con.
54.
396

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