a myth that is coming to an end?
Marriage was once a key gateway to adulthood, allowing for legitimate sexual intimacy, parenthood, and household chores. But nowadays, most couples live together before they get married or avoid the tradition altogether, even when they have children. Marriage rates have steadily declined as cohabitation increases, but legislation granting rights to unmarried couples has not followed. Many couples mistakenly believe that their relationship has the same or similar status in the eyes of the law as married couples.
In 2018, almost half of adults in England and Wales (46%) believed that unmarried cohabiting couples had such a ‘de facto marriage’. There is nothing like it in Britain, and yet this myth is stubbornly persistent; with proportions of 51% in 2006 and 56% in 2000. Even the government’s Vivre ensemble campaign, set up in 2004 to “challenge the myths”, and the warnings of the professionals concerned hardly made any hole.
But rather than just a story of legal ignorance, common law marriage is an invented tradition that has helped transform cohabitation from deviant scarcity into normal practice.
The belief in de facto marriage is actually quite recent. In her book on the evolution of the legal regulation of cohabitation, legal historian Rebecca Probert found no popular use or understanding of the term until the 1970s. In the space of a decade or so, what was once an obscure legal term sometimes applied to overseas marriages has evolved into a widespread social myth about cohabitation in Britain.
Until the 1970s, cohabitation outside marriage was rare, deviant and stigmatized. Charities first borrowed the term in the middle of this decade to distinguish between more “deserving” cohabitants (those with children or in long-term partnerships) from those in more temporary relationships. The popular press quickly generalized the term to all cohabitants and also found a sordid copy in linking “common law” wives and husbands to crime, drugs, misery and even communism.
But even though there were articles at the time that pointed out that common-law marriage did not exist, they were ignored by many and were not enough to counter the false accounts. Why? One clue is given by the parallel transformation of cohabitation itself in Britain in the 1970s.
Over the past decade, many who were already married still preferred to commit the crime of bigamy rather than simply living with a new partner. And until the 1970s, magazines like Cosmopolitan advised their young readers to pretend to be married rather than admit the shame of cohabitation. But by 2000, cohabitation had turned into a commonplace mass practice. It seems that the invention of the myth of common law marriage accompanied the transformation of cohabitation in practice.
De facto marriage is called a myth because only some people believe it and because it is regularly contested by authoritative figures. But other myths are more popular and, although they are also invented, are generally accepted as true historical traditions. A classic case is the Highland tradition, dissected by historian Hugh Trevor-Roper.
The paraphernalia we associate with the Highlands – kilts, bagpipes, tartans, Highland games – was largely a collection of 18th and 19th century fantasies, forgers and romantics. The epic poems of a “Gaelic Homer” were downright counterfeit, while a savvy Lancashire textile maker invented the system of clan-specific tartans. Well embellished by Scottish novelist and poet Walter Scott, this invented tradition has helped preserve Scotland’s national identity.
The royal family has also jumped on the bandwagon. George IV’s famous visit to Scotland in 1822, orchestrated by Scott, included tartan pageantry and helped a monarchy that sought legitimacy to conceal its German origins.
As the existing Highland social system was destroyed, an invented system gave the victors – especially the Scottish Lowland establishment and the Hanoverian royal family – legitimacy and identity.
Building a fake story
Our research on the changing nature of the couple suggests that cohabitation can be viewed in the same way. Its invention enabled cohabiting partners to assume the legitimacy of marriage. By supporting the myth that cohabitation could be like marriage, cohabitants no longer had to hide their identities, or worse yet justify what was perceived to be provocative or shameful behavior. They weren’t seen as doing anything particularly new either.
Unlike before the 1980s, in social gatherings, schools, and hospitals across the country, married and unmarried couples began to be treated the same. Seen in this light, it’s no wonder that many ignored authoritative information and preferred to stick to the myth.
The invention of de facto marriage was also based on a constructed history. Beginning in the 1970s, an academic orthodoxy argued that cohabitation and de facto marriage were quite common among ordinary people in the 18th and 19th centuries, not fading until the ‘marriage-centric’ 1950s. However, Probert’s research has shown how massively exaggerated both claims are, to say the least. Part of this mistaken story stems from selective sourcing. Digitized sources, which allow researchers to easily trace marriage records, have only recently become available.
But more than that, summary and speculative evidence has become mainstream as accepted facts. Broom weddings, where partners held hands and jumped over crossed brooms, are a vivid example. Said to be widespread in rural Wales, the original source for this article quotes a single man who said he heard of it, although he had never seen it himself.
Why have academics embraced this false story? The intellectual spirit of the day partly defended the resistance of ordinary people to Church and State. But this story also legitimized calls for legal reform to actually give cohabitants rights similar to marriage. Because these reforms, which would fundamentally change matrimonial law, could be presented as a lesser development – they would only formalize a pre-existing practice. In turn, this spurious story has given more credence to the “myth” of common-law marriage.
While common-law marriage may be a legally mistaken myth, it has also been socially meaningful and effective. But is her time now up? The establishment of civil partnership for heterosexual couples, scheduled for December 2019, will give couples almost all of the rights of marriage without the marriage itself. Maybe common law marriage has done its job – but maybe too well for those who assume rights they don’t have.