The Truth of Unmarried Cohabitation and the Significance of History

Publication Date01 Jul 2014
AuthorCraig Lind
The Truth of Unmarried Cohabitation and
the Significance of History
Craig Lind*
Rebecca Probert,The Changing Legal Regulation of Cohabitation: From Forni-
cation to Family, 1600 – 2010, Cambridge: Cambridge University Press, 2012, 287
pp, hb £73.00.
Unmarried cohabitation is a prominent feature of modern family life and has,
consequently, become a significant feature of contemporary family law.1The
increasing numbers of people in the UK who live in unmarried relationships and
the rise in demand for legal remedies when events occur in their lives which
demand an equitable remedy have compelled legal responses. And, although
there are still unresolved problems in this regard,2the legal landscape has been
transformed by a steady accretion of codified laws bringing unmarried relation-
ships into the mainstream of legal regulation.3
In her earlier work, Marriage Law and Practice in the Long Eighteenth Century,4
Probert debunked the ‘common law marriage’ myth. In a work of extraordi-
narily detailed and wide ranging legal and historical scholarship, she demon-
strated that the assertions of scholars in the 20th century, that there had been
regulation of ‘unmarried’ relationships which paralleled (and were, indeed)
*Senior Lecturer, University of Sussex.
1 See A. Barlow, S. Duncan, G. James and A. Parks, Cohabitation, Marriage and the Law – Social Change
and Legal Reform in the 21st Century (Oxford: Hart Publishing, 2005), H. Wood, D. Lush, D.
Bishop, A. Murray and J. Eames, Cohabitation: Law, Practice and Precedents (Bristol: Family Law,
2011), J. Herring, Family Law (Harlow: Pearson Education Ltd, 6th ed, 2013) 89, and A. Diduck
and F. Kaganas, Family Law, Gender and the State (Oxford: Hart Publishing, 2nd ed, 2009) 58. For
a recent American perspective on the subject see F. Rose-Greenland and P. J. Smock, ‘Living
Together Unmarried: What do we know about cohabiting families’ in G. W. Peterson and Kevin
R. Bush (eds), Handbook of Marriage and the Family (New York: Springer, 2013) 255-273.
2 See, for example, Law Commission, Cohabitation: The Financial Consequences of Relationship Break-
down Law Com 307 (2007). See too Stack vDowden [2007] UKHL 17; [2007] 2 AC 432 and Jones
3 A number of statutes can be cited as examples of the encroaching marriage-like protection of
unmarried cohabitants: Inheritance (Provision for Family and Dependants) Act 1975, s 1(e), Fatal
Accidents Act 1976, s 1(3)(b), the Rent Act 1977, Sch 1(2), Housing Act 1985, s 113(1)(a),
Children Act 1989, s 4, Human Fertilisation and Embryology Act 1990, s 28(3), Family Law Act
1996, s 36, and Human Fertilisation and Embryology Act 2008, s 36.
4 R. Probert, Marriage Law and Practice in the Long Eighteenth Century: A Reassessment (Cambridge:
CUP, 2009).
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(4) MLR 641–668
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
marriage relationships, were erroneous.5Until the 20th century, the phrase
‘common law marriage’ had not been used, almost no-one lived in marriage-like
relationships if they were not married (or had not, at least, tried to marry by
going through some, even if unrecognised, marriage ceremony). Her argument
was simply that there were no marriages which were recognised in the ‘common
law’ separately from those recognised under law. And it was, therefore, histori-
cally inaccurate to talk of ‘common law marriage’ as if it had existed.
In The Changing Legal Regulation of Cohabitation, Probert builds on that work
by seeking to uncover the truth of unmarried relationships and their recognition
in family law across (in this instance) a longer period of time. In this book she
argues that the claims made by some scholars that unmarried cohabitants have
attracted marriage-like regulation over the centuries are, like claims made about
common law marriage, deeply flawed.6They are claims based on misunder-
standings of or inappropriate assumptions about the historical record. Probert
uses an impressive array of legal and other historical materials to explain this. All
are carefully scrutinised and closely analysed to yield her conclusions. She is
nothing if not thorough and meticulous in her research.
My aim in this essay is to acknowledge the unquestionably admirable schol-
arship of Professor Probert. But it is also to offer a critique based on some of the
problems I perceive to arise from it. And while the focus will be on those
criticisms, I hope that that focus will not be mistaken for an under-appreciation
of the impressiveness of this work. Nor should it be read as implying that the
problems I perceive to arise from her work should have been addressed in it. Her
view of this history, it will be clear, is different from my own. It is, therefore, my
view that she could not have written the book which I think her discovery of
material justifies. This essay is, therefore, a personal reflection that offers readers
another way to interpret the history Probert has (re)written and to reflect upon
the detail which she has uncovered but to different ends. If, as a community, we
are to make the best use of this material we must, it is submitted, be broader in
our critical ambitions than, I will argue, Probert has been in this work (and in her
former work in which similar projects have been undertaken).
But before I start on the more detailed critique, an overview of the argument of
the book should be given. During this overview I will, from time to time,
5 See, for example, K. O’Donovan, Sexual Divisions in Law (London: Weidenfeld & Nicholson,
1985) and S. Parker, Informal Marriage, Cohabitation and the Law, 1754 – 1989 (Basingstoke:
Macmillan, 1990). cf L. Stone, Uncertain Unions and Broken Lives: Marriage and Divorce in England
1600 – 1857 (Oxford: OUP, 1995) who talks about the full religious effect of ‘contract’ marriages,
but their legal ineffectiveness at common law (at 21) (so, not ‘common law marriage’). But he goes
on to assert that for many people – the poor, in particular – the ‘legal’ meaninglessness of contract
marriage may have been irrelevant to their lives.
6 See, for example, M. D. A. Freeman and C. M. Lyon, Cohabitation without Marriage (Aldershot:
Gower, 1983); Barlow et al, n 1 above; Parker, ibid; F. Mount, The Subversive Family: An Alternative
History of Love and Marriage (New York: Free Press, 1982).
The Truth of Unmarried Cohabitation and the Significance of History
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
642 (2014) 77(4) MLR 641–668

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