|‘From Fornicators to Family: Cohabitants and the Law, 1600-2010’
Inaugural lecture, 9 February 2011
I would like to begin with a story about two ordinary – but to me very special – people. My own parents married in 1971. Like many of the marriages that took place in that year, it was a second marriage – although they were not among those whose stable illicit unions were intended to be regularised by the new divorce laws (of which more later). Indeed, like most of their contemporaries, they had not lived together before the marriage. They had however gone away on holiday together – although my mother, when telling me this, was at pains to stress that they had had separate rooms. My father unfortunately rather undermined the intended moral instruction by adding ‘yes – but we didn’t stay in them.’
I tell this story because it perfectly captures the ethos of a society in the process of transition. Had they been courting ten years earlier, they would probably have remained in their separate rooms: until the late 1960s the majority of brides were virgins on their wedding day. Ten years later and there would have been no need for the subterfuge of separate rooms: indeed, they would probably have been living together before the marriage.
Fig 1: Women’s pre-marital experiences, 1961-79
And this transition is crucial to the broader story that I want to tell this evening. This story has three key themes. The first is the rarity of cohabitation in previous decades and indeed centuries and its rise in recent years.
But the shift alluded to in the title – from fornicators to family – actually refers to the second theme, the changing attitude of the law towards cohabiting couples. In the seventeenth century – and well into the eighteenth – cohabiting couples were treated as fornicators by the church courts, and punished accordingly. Since the start of the twentieth century, however, the law has gradually accepted that cohabitants should be regarded as members of each other’s family for a whole range of legal purposes. And underpinning this shift have been fundamental changes in how law is perceived, and what it is thought it can do.
This brings us on to the third theme: what is the relationship between the law and social practice in this context? Has it been a simple matter of the law responding to demographic change, or has the law itself played a role in bringing about change?
The reason for examining the history of cohabitation
But, you may be thinking, if both the law and the practice are relatively modern, why the need to examine over four hundred years of history? The reason for so doing is that many scholars and commentators have claimed a longer history for both. In 2010, a Vice-President of the British Academy went so far as to claim that in contrast to the 1950s and 1960s, ‘[e]arlier periods show greater similarity in terms of cohabitation and “illegitimacy” with recent decades.’ And in February 2011 an article in The Times implied that couples did, until the mid-eighteenth century, enjoy some legal protection. But, as we shall see, both claims are utterly without foundation.
The point about illegitimacy can be dismissed almost instantly. The proportion of births outside marriage in 2010 is very different from that prior to the 1960s.
Fig 2: Proportion of births outside marriage, 1600-2010
Data on cohabitation outside marriage is unfortunately much less readily accessible – the first national-level survey was not carried out until 1976 – but this graph does gives us some hint as to the likely prevalence of such relationships. Until the advent of reliable and accessible forms of contraception in the late 1960s, any prolonged sexual relationship was likely to result in the birth of a child. So we can say with a high degree of certainty that the number of couples who cohabited is not going to be more than the number who had a child outside marriage, and is likely to be considerably less. While today a high proportion of births outside marriage occur within cohabiting relationships – to judge from the fact that both parents give the same address when registering the birth – we cannot assume that this was always the case.
Fig 3: Registration of births outside marriage: 1985-2005
And I will be considering over the course of the lecture what proportion of births outside marriage can be attributed to cohabiting relationships at any one time.
But that brings me on to a further important preliminary point: how is ‘cohabitation’ being defined for this purpose?
Our focus this evening is on those who share a home together, whether on a lifelong or semi-permanent basis, without having gone through a formal ceremony of marriage.
Fig 4: Sex outside marriage
As we shall see, some commentators have been willing to include as cohabitants those whose relationship has been more fleeting. But they may have been misled by the language of the time. The past is another country, and the language of earlier centuries and decades is littered with as many faux amis as any foreign tongue, especially in the context of love.
So, for example, the deceptively simple term ‘cohabitation’ might simply indicate that a couple were having sex, rather than that they were living under the same roof.
Harris’ eighteenth-century List of Covent Garden Ladies, for example, noted of one damsel that she was: ‘so conformed as to require a peculiar method of cohabitation with her.’ And the term was still being used in this sense well into the twentieth century: in 1939 the birth-control advocate Marie Stopes received a letter from a man complaining ‘that spontaneous “cohabitation” was “completely spoiled” by the wait for the spermicide to melt.’
All too often, misunderstandings of such terms – and similarly ambiguous terms such as ‘mistress’ – have led to such relationships being categorised as early forerunners of today’s cohabiting relationships, when they are nothing of the sort.
Sin and damnation
If we turn to the way in which cohabitation was treated by the law in the c17th, it is unsurprising that it was so rare. Sex outside legal marriage was of course a sin that might lead to eternal damnation. But it was also an offence that could be punished in the here-and-now. Indeed, individuals might be prosecuted in the church courts for a whole variety of offences – not only ‘living scandalously and suspiciously together without lawful marriage’ but also fornication, swearing, and drunkenness.
Those men and women adjudged to be guilty of sexual offences would be required to do penance, carefully graded according to the nature of the offence. In this, cohabiting couples were treated in the same way as fornicators and adulterers. Those who ignored the summons to court and the subsequent sentence would be excommunicated – a powerful weapon in the context of the time.
The community had two key reasons for monitoring the behaviour of their neighbours and reporting any transgressors: fear, and money. At a theological level, a link was made between the morality of the individual and the prosperity of the community: it was believed that the entire community might suffer God’s wrath if action was not taken on his behalf. At a practical level, the same link was made: children who were not supported by their parents were a drain on the parish resources. The idea that there might be a sphere of life that was not the law’s business was utterly alien.
Two interesting points emerge from an examination of one particular set of records of the Carlisle court from the early eighteenth century. First, those accused of cohabiting ‘scandalously and suspiciously’ were only a small subset of those accused of fornication.
Fig 5: Cases in the Carlisle ecclesiastical court
Secondly, many of those accused of cohabiting outside marriage turned up to the court to inform the authorities that they had in fact married before moving in together, giving details of the church where the marriage had taken place and the clergyman who had conducted the ceremony. This did not let them off the hook entirely – you had to do penance if you had married clandestinely as well – but it was a lesser penance.
Such material makes it clear that cohabiting couples were not accepted as family by the law and, secondly, that they were relatively rare.
So how did we get from treating cohabitants as fornicators to treating them as family? The first key change was the decline of the church courts. Figure 6 shows the decline in cases of what was delicately known as ‘incontinence’ – in this context the inability to control one’s lusts rather than one’s bladder – coming before the main appellate court, the Court of Arches.
Fig 6: Cases for ‘incontinence’ in the Court of Arches
The powers of the church courts were never fully restored after the Commonwealth, and their influence dwindled still further once they no longer had the power to compel church attendance. In some areas they continued to be vigorous in prosecuting moral offences well into the c18th – Carlisle, as we have seen, was one. But, apart from a few sporadic prosecutions, they had ceased to punish moral offences by the second half of the eighteenth century.
The question was, should the secular courts take on this role? There had been considerable jockeying for position by secular courts over the eighteenth century, and they had frequently stopped the church courts from dealing with matters deemed to fall outside their jurisdiction.
And in the 1763 case of R v. Delaval Lord Mansfield seemed to be making a bid for the secular common-law courts to expand their jurisdiction into the area of morals, declaring that they were the guardians of the morals of the people, and had jurisdiction over moral offences. His colleagues, however, were less enthusiastic: ‘I am in a Court of Common Law, and not in an Ecclesiastical Court’ declared Clive J in Turner v Vaughan, in 1767. And similarly, in the Court of Equity, we find Camden LC stating that ‘[t]his Court is not a reformer of manners.’
Looking at the following lines of that quotation from Clive, one might be forgiven for thinking that he is articulating a rule that is to apply especially to those living under the same roof: ‘If a man has lived with a girl, and afterwards gives her a bond, it is good.’ But ‘living together’ was just as much a euphemism for sex as was cohabitation. Byron, for example, musing on whether he or Shelley was the father of Claire Clairmont’s daughter, noted that ‘I know as much as one can know such a thing – that she had not lived with S. during the time of our acquaintance – and that she had had a good deal of that same with me.’
Now, the two cases that I have quoted from were part of a whole body of eighteenth-century case-law dealing with what have been termed ‘cohabitation contract’. But these were largely contracts for cohabitation in the old-fashioned sense of sex (in exchange for provision of some kind), rather than contracts between cohabitants in the modern sense.
Indeed, whether or not the parties to a contract were living together was irrelevant to the question of whether it would be enforced. But it is worth looking at what the courts did take into account, because it illustrates an important shift in the courts’ approach.
In the late seventeenth and early eighteenth centuries, the sexual history of the woman was relevant to the approach adopted by the courts. If the woman was a prostitute, it would be presumed that the man had been imposed upon by her, and he would be relieved from paying what he had promised. By contrast, if the woman had previously been of good character, the law took the view that the man was the guilty party, and that he had a duty to make her reparation for her loss of reputation.
By the second half of the eighteenth century, however, the key question had become whether the promise of provision was intended to bring about the sexual relationship (or its continuance). In the terminology of the time, was it ‘the price of a future illicit connection’ or simply compensation for the injury done by such a connection? Two cases from 1767 illustrate this shift: in one, a prostitute who, after the relationship had come to an end, had been promised a sum of money succeeded in her claim; in the other, a woman who had been promised an annuity before entering into a relationship failed, despite her protestations that she had previously been a virgin and that the promised provision had been compensation for her chastity.
These rules were justified by the courts within a moral framework as, on the one hand, removing an inducement to vice (by not enforcing those promises designed to bring about an unmarried sexual relationship), and, on the other, promoting virtue by securing to the woman ‘a means of retreating’ from her current way of life. Of course, one result was that men could make whatever promises they liked without having to pay up afterwards (and men, who had this incentive, were more likely to have some grounding in the law than women, whom the law was meant to deter). And promoting virtue could equally have been achieved by requiring men to pay up once the relationship had come to an end. Moreover, it is worth pointing out that when the judges invoked ‘morality’ as a reason for holding men to their promises of provision, their conception of morality was not religiously-inspired, but was a more secular morality based on ‘honour’ and ‘conscience’; the morality of keeping one’s word as a gentleman, rather than the morality of keeping the Commandments.
So, we have a shift over the course of the eighteenth century from explicit moral regulation by the church courts to the more neutral approach adopted by the secular courts. The fact that a couple had shared a home did not give either any special rights, but it did not deprive them of rights either. If a woman could show that there was a contract, will or trust in her favour, then she would be entitled to the provision promised, as long as it had been made in proper form. If not, she got nothing.
And this remained the basic approach of the law for the next 200 years. But this more neutral approach did not matter too much at a time when there were many other social constraints on behaviour.
To underline just how rare cohabitation was, let us remind ourselves just how low the proportion of births outside marriage was in this period: a little under 2 per cent at the start of the eighteenth century, and a little over 5 per cent by its close. Moreover, the evidence suggests that a relatively small proportion of illegitimate births were attributable to cohabiting relationships. A survey of births outside marriage across Northamptonshire between 1730 and 51 found that of 847 incidences, the father was named in only 221, and only 6 couples had a second child together (compared to 80 per cent of couples in a sample of the general married population). This is also consistent with the bastardy examinations in Chelsea between 1733 and 66: out of a sample of 74 women who gave birth to a child outside marriage only 2 were definitely cohabiting, a handful of cases were ambiguous but the vast majority, judging from their – very explicit – evidence, were clearly not cohabiting. Indeed, there were more examples of relationships in stables than there were of stable relationships.
All this may seem at odds with the popular image of the eighteenth century as a time of sexual licence. But those who were able to get away with indulging themselves were largely elite men. The case-law only makes sense in a context in which sex was not usually available between social equals, but had to be bargained for – and paid for. While any list of eighteenth-century aristocrats who maintained a mistress would be a very long one, the list of those who shared a home with the woman would be much shorter.
Over the course of the nineteenth century there was little change in the approach of the law to cohabiting couples, although there were changes to the law on who could marry whom, and how. Previously, a marriage to someone to whom you were related by affinity had been voidable; from 1835, however, it was simply void. When in 1848 a Royal Commission considered the impact of this new prohibition on marriage, it estimated that there had been 1,364 marriages within the prohibited degrees since the law had changed in 1835 and 88 cases where such a marriage had been thwarted. 32 of the latter group went on to live together unmarried. The fact that a void marriage was preferred to no marriage at all was a clear indication that cohabiting without a marriage ceremony was not an acceptable alternative for most couples.
Even the clergy thought that a void marriage was better than cohabitation: one parson noted in his diary how he had refused to conduct a marriage between a man and his brother’s wife – the brother in this case being not dead but at Botany Bay – but mused that ‘marriage of any kind is some sanction.’
But this was, of course, a period of huge social change, with industrialisation and urbanisation. Charles Booth, whose massive survey of London was carried out in the 1890s, mapped the streets of London according to wealth, using black to denote those thought to be ‘vicious’ and ‘semi-criminal’. There were a number of complaints by contemporaries that the poorer classes were cohabiting outside marriage. Indeed, cohabitation was depicted by a number of commentators as almost synonymous with urban poverty and irreligion, as characteristic of ‘outcast London’. Mayhew, writing in the 1850s, had claimed that ‘[o]nly one-tenth – at the outside one-tenth – of the couples living together and carrying on the costermonging trade, are married.’ And Booth himself commented that ‘[i]t is noted by the clergy who marry them, how often both the addresses given are from the same house.’
How much credence should be given to such claims? Mayhew’s methods were those of the journalist rather than the social scientist, but there were certainly couples in the slums of Victorian London who lived together unwed. The fictional Sykes and Nancy were perhaps more typical than George Eliot and GH Lewes, and we do find a bulge in the proportion of births outside marriage in the mid nineteenth century, although the rise was only to 7 per cent.
But once again the majority of unwed mothers were not living with a partner. The image of the pregnant daughter, turned away from her family home, is a cliché of Victorian literature and art for a good reason. In an analysis of the 1851 census for the Hertfordshire town of Great Berkhamsted – covering around 3000 individuals – there were single mothers in the workhouse, single mothers living alone with their children and even some single mothers living with other family members – but no examples of couples living together unmarried with a child or children. And when one actually checks the marital status of those living together and claiming to be husband and wife, it is usually possible to find a record of the marriage, even in areas that were said to be notorious for immorality.
Of course, the fact that it is possible to trace a marriage does not mean that the couple did not live together before the wedding, and, echoing Booth, some very specific claims have been made about the extent of cohabitation in Victorian London. The historian Ellen Ross noted that ‘[t]he marriage registers in three poor London districts, Walworth, Poplar, and Bethnal Green, for various years between 1879 and 1912 show an astonishingly high proportion, ranging from 45 percent to 89 percent, giving the same street or even the same house as the address from which they married.’ Her conclusion was that cohabitation was an accepted part of life among the urban poor. However, a preliminary study of marriage registers – in which the addresses given by those marrying shortly after the 1891 census were checked against their residence at the time of the census – uncovers a far more complex picture: more often than not, those who claimed to be living at the same address turned out to be living separately.
Four parishes were examined (Bethnal Green St Jude’s, Bethnal Green St Thomas’, Bethnal Green St John’s and Dalston St Philip’s). Taking the address at the time of the marriage at face value, it would appear that 55 per cent of couples were already living together when they set out for the church. On further examination, however, it was clear that most were not living together. In fact, most were not even living where they said they were, whether they had given the same address or a different address.
Fig 7: The disparity between address at marriage and residence in the census
Out of 77 couples, only eight were traced to the same house – 5 who were living where they had claimed to be, 2 who had given one joint address but were actually living at another, and 1 couple who had given different addresses but who were traced to the same house. But the majority of these 8 couples were not living as husband and wife: the usual pattern was for one to be living as a boarder within the other’s family home. In only two cases of the 77 were the couple actually passing as husband and wife. One of these involved a remarriage, the other a foreign couple. In short, once one actually checks where couples were living, cohabitation before marriage appears very much a minority practice, and it continued to receive no encouragement from the law.
But a new approach began to manifest itself in Parliament at the start of the twentieth century. This was in part due to fears that the law was not having the desired effect. The prohibition on marriages between a man and his deceased wife’s sister was ended in 1907. Parliament had been debating this for decades, and Biblical texts had been quoted extensively by both sides. But the argument that seemed to tip the case in favour of reform was that couples who could not marry would simply cohabit. This, it should be noted, was not an argument based on empirical evidence about the extent of cohabitation: it was, rather, an argument derived from doubts about the power of the law to influence behaviour.
The First World War saw separation allowances, and later pensions, being awarded to the ‘unmarried wives’ of soldiers during the First World War. Similarly, in the wake of the war, such women dependants were also included as dependants for the purpose of unemployment benefits. Both, however, were inspired by pragmatic considerations rather than respect for such relationships, the intention being to maintain the morale of the fighting force in the first case, and fear of industrial unrest in the immediate post-war period in the second.
Such developments should not be taken as evidence of a response to a widespread social need. The data from the administration of such schemes hardly suggests that cohabitation was widespread: one researcher who has examined the records of war pensions calculated that 90 per cent of dependents’ pensions (i.e. those paid to dependants other than the legal wife or children) were paid to the mothers of soldiers, and a mere 3 per cent to ‘unmarried wives’.
The lowness of this figure is in line with the limited statistics that are available on post-war unemployment benefits: an investigation carried out in 1927 revealed that only a tiny proportion of men claimed benefits for women living with them, with a mere eleven men out of the 9,748 interviewed claiming an allowance for a housekeeper, with a further 27 claiming for a housekeeper and children (and of course some of these housekeepers might well have been simply housekeepers).
In the case law, too, one begins to find a change in the treatment of cohabitation in divorce cases. Previously, the fact that the petitioner was cohabiting with a third party would have led to the divorce being refused; by contrast, from the 1920s the petitioner’s cohabitation began to be a reason for granting the divorce, so that the new family could be legitimated. Even so, the increase in divorce did not keep pace with the increase in marital breakdown. To obtain a divorce it was still necessary to show that one’s spouse was at fault, and there does appear to have been an increase in the number of couples who were cohabiting because one or both of them was married to another person and unable to obtain a divorce.
Set against such developments, the case-law of the 1950s comes as something of a surprise. One finds a harsher note, and a number of suggestions that the law should be used to send a message about moral values. Lord Evershed, rejecting the idea that a cohabiting couple without children could be described as ‘family’, closed his judgment in Gammans v Ekins  with the ringing words that: ‘in the Christian society in which we live, one, at any rate, of the privileges which may be derived from marriage is not equally enjoyed by those who are … not married.’ What tends to be overlooked by commentators is the implication that cohabitants were enjoying some of the privileges of the married: the courts had already decided that a cohabiting couple with children would be regarded as a family for the purpose of the Rent Acts.
And, while calls to use law as an instrument of social change are often seen as reflecting the conservative ethos of the times, it makes more sense to see them as an attempt to change the times – or, rather, to stop them changing. There was concern about falling church attendance and juvenile delinquents. In the second part of the decade the post-war babies began to hit puberty – bigger and stronger than earlier generations because of free school milk and welfare-state orange juice – to a soundtrack of rock and roll. The age at which individuals embarked on sexual relationships also fell. The National Survey of Sexual Attitudes and Lifestyles found that the age at first intercourse fell from 21 to 19 between 1954 and 1962 – although this should be interpreted against a background of ever-earlier marriage.
This was, of course, the era of the Hart-Devlin debate about the proper relationship between the law and morality. By the mid-1960s the dominant view in Parliament was that the law should respond to social trends, rather than guide them, and should attempt to minimise the hardship experienced by individuals. The idea that the law could, or should, try to influence behaviour was for the most part abandoned. Such was the reasoning that led in the late 1960s to reforms to the law on abortion, contraception and divorce.
The results were not quite what had been expected. It had been confidently predicted that the liberalisation of divorce law would lead to long-dead marriages being legally buried and new relationships being formalised. And to an extent this did happen: in 1971, a large proportion of petitions for divorce relied on the fact of separation, and in the following year there were more marriages than ever before, just over a quarter of which involved at least one spouse who had previously been married. But the new rules on the division of assets on divorce provided some with a reason not to remarry. Under the previous fault-based approach a divorced woman living with another man would probably not have received maintenance at all from her husband. Now, fault was irrelevant – and cohabitation a positive advantage. After all, those in receipt of maintenance from a former husband stood to lose this if they re-married, but not if they cohabited with a man.
Moreover, divorce provided the rising generation with a reason to cohabit. The sudden spike in divorces gave rise to a perception that couples needed to test their relationship before rushing into marriage. This new, post-Pill generation had little to fear from sex before marriage, but much to fear from marriage itself.
The number of cohabiting couples rose rapidly. Indeed, the speed of change was so fast that it generated considerable uncertainty about how cohabitants should present themselves. As late as 1973 Cosmopolitan advised concealment in its ‘guide to unwedded bliss’. It advised individuals not to tell others of their relationship, and even gave the practical tip of using removable labels if both names were to go on the letter box – ‘so you won’t have to spend hours scratching his name off when mother arrives.’
By the mid-1970s, the pages of women’s magazines suggest that young couples were generally being more open about living together unmarried, although honesty on such a matter still had the power to generate tensions within the family. In the sitcom Robin’s Nest, Vicky reassures her partner Robin that her father’s dislike of him is nothing personal: ‘[h]e wouldn’t like any man who bedded me without benefit of clergy.’ As her father later demands: ‘[w]hat sort of father would I be if I approved?’ But the very appearance of Robin’s Nest on the nation’s television screens in 1977 was in itself an indication of changing attitudes towards cohabitation, being the first sitcom to depict an unmarried couple living together. A second sitcom, Rings on their Fingers, first broadcast in 1978, confirmed just how normal cohabitation had become in just a few years. Oliver Pryde, with his neat suit and office job, was not a type previously associated with ‘living in sin’ and his only reason for avoiding marriage was his by-then fashionable conviction that it was ‘an outdated institution.’ Socially and culturally, cohabitation had become part of the mainstream. Even The Archers had featured one or two cohabiting relationships – although some listeners were outraged by the local policeman living with his girlfriend in 1979.
Despite such occasional outbursts, from the mid-1970s there were increasingly frequent references to the fact that the stigma attached to cohabitation had diminished or even disappeared. As one judge noted in 1975, there had been ‘a complete revolution in society’s attitude to unmarried partnerships… Such unions are far commoner than they used to be. The social stigma that once attached to them has almost, if not entirely, disappeared.’ And in that case it was finally decided that even a cohabiting couple without children would be regarded by the law as members of each other’s family, if only for the purpose of succeeding to a tenancy.
From the 1970s onward we see a considerable increase in the popularity of cohabitation – and a rather limited increase in the rights accorded to cohabitants. We might therefore assume that there is little relationship between social practice and the law – that the law has no influence on whether or not couples cohabit. After all, at face value the legal gains made by cohabitants in the 1970s were hardly such as would sway the decision to cohabit rather than marry.
But in order to understand the way in which the law influences behaviour, we cannot simply map demographic change against the statute book. We need to look at how changes were understood. In understanding behaviour, what the law was thought to be is more important than what it actually was. And it was in the 1970s that the ‘common-law marriage’ myth emerged.
The term ‘common-law marriage’ had been known to English law for over a hundred years, but referred to marriages celebrated overseas where the parties had been unable to comply with the local law and which therefore depended for their validity on English common law (or rather what English common law was presumed to be).
It was only in the 1960s that the term began to be applied to cohabitation, and those using it seem to have been under no illusion as to their lack of rights. It was the debates over the ‘cohabitation rule’ in the early 1970s that seem to have sown the seeds of confusion. The cohabitation rule required the assets of those sharing a home to be aggregated when determining eligibility for means-tested benefits, and various prominent activists argued that this should not apply to all cohabitants but only those living in ‘common-law marriages.’ Such arguments implied that a ‘common-law marriage’ was something that was different to simple cohabitation, and merited different treatment as a result.
It is clear that the meaning of ‘common-law marriage’ was perceived to be changing and at this point we begin to find individuals writing to agony aunts to ask what rights they had as a result of their ‘common-law marriage’. Similarly, as new rights were conferred on cohabitants, they were depicted by policy-makers and journalists alike as benefiting ‘the common-law wife’.
The press constantly overstated the effect of these new developments. Thus the Daily Express suggested that a woman who had been jilted by her cohabitant might benefit from the Inheritance (Provision for Family and Dependants) Act – ‘[if] a Bill now going through Parliament were law now, she would as a common-law wife automatically be entitled to a share in a “husband’s” estate.’ – blithely overlooking the fact that the Bill made no express reference to cohabitants, conferred only the right to apply for provision, and, most fundamentally of all, did not apply unless the other party was dead.
The case of Eves v Eves in 1975 also generated misunderstandings. The court had held that a cohabitant was entitled to a one-quarter share in the home she had shared with her lover, on the basis that she had relied to her detriment on the understanding that she would have an interest in the property. It was welcomed in The Guardian with the headline ‘“Security” for common-law wives’. (More vividly memorable perhaps was the description in the Daily Express: ‘Cast-off Janet wins share of house as ex-lover hits at “charter for scheming women”’
And the millions who tuned in to the first episode of the sitcom Rings on their Fingers in October 1978 would have seen Sandra asserting her right to a share of Oliver’s flat if they split up. Oliver’s panicked response was to propose marriage to stop his girlfriend leaving – but viewers would have been left with the impression that the legal tie was unnecessary for legal protection. After all, the episode was entitled ‘What Difference Does a Piece of Paper Make?’
Reading newspaper reports and magazine articles from the period, one is bombarded with misinformation about the rights of cohabiting couples. By the end of the 1970s it would have been surprising if there had not been a mistaken belief among cohabitants that they enjoyed the same rights as cohabitants as a result of a ‘common-law marriage’. Only at this point does one begin to find contemporary references to this as a misunderstanding.
Did the common-law marriage myth influence individuals’ decisions whether to marry or cohabit? There is certainly some suggestive evidence that it exerted an influence. In the late 1960s, and even beyond, many timed the date of their wedding to maximise the fiscal advantages. Some expressly declared that they would have been happy to cohabit, but married because they would otherwise have been disadvantaged in legal terms. And there were many who explained their decision to marry on the basis that it would simply make life easier when finding a place to live. By contrast, by the end of the 1970s one finds a number of couples declaring that they are cohabiting because they could perceive no reason to marry. In Chappell’s small-scale survey, the ideologically-motivated Lesley declared that her only reason for marrying ‘would be a financial one – if they found they would be better off that way’. Those who did not experience such pressures might well decide not to marry: in Oliver’s survey of cohabiting couples carried out at the end of the decade, a number of her respondents felt that the effort of getting married ‘would not be rewarded by any legal, financial, emotional or social advantages, and hence they saw no reason to bother with marriage.’
So over the course of the c20th, we see couples cohabiting, usually because one could not get a divorce. Then, in the 1960s, we see the law being reformed to enable them to divorce and remarry. In the 1970s, as it is realised that couples are still cohabiting rather than remarrying, some limited protection is extended to them. But this generates a myth that there is now no difference between marriage and cohabitation – and individuals enter into relationships under a misapprehension as to their legal rights. The 1970s saw a big rise in pre-marital cohabitation – but the 1980s saw a bigger rise in those who cohabited and had children together without going on to marry.
Fig 8: Births outside marriage, 1971-2001
To return to the question posed at the outset: what is the relationship between law and social practice?
I would suggest that the actual extent of cohabitation has been a relatively minor influence on the reform process. With the possible exception of the Law Commission’s 1966 report on divorce – which relied on some rather dodgy data – most reforms have been based on hypothetical cases of hardship rather than empirical research. It is perhaps no coincidence that the process of conferring rights on cohabitants slowed in the 1980s, once more detailed data about the extent of cohabitation became available: as cohabitation becomes more common, it was also perceived as more threatening.
One difficulty for reformers is the lack of consensus about the role of the law. The liberal reforms of the late 1960s were essentially reactive, trying to solve problems rather than map out a new social order. The law has accepted that there is a realm of private life that is not the law’s business. But it has not yet answered the question of how the law should respond to the consequences of private choices.
In evaluating the relationship between law and social practice, it is clear that it can and has had an influence on behaviour, if not always the influence that was intended. But having begun with a story illustrating changing social practices, I want to end with a story that illustrates how, as one judge has put it, ‘context is everything’ when thinking about the impact of the law. In the 1690s John Butler was accused by his wife Martha of adultery with his maid, and published an indignant reply, claiming to be living in ‘lawful concubinage’. His wife, he protested, had left him, and it was therefore lawful for him to take another woman to live with him in concubinage, just as the patriarchs of the Old Testament had done, since he was ‘not naturally endowed with the gift of continency.’ In an age when few questioned the existence of God and the authority of the Bible it was natural that he should seek to justify his actions – to the wider community and perhaps even to himself – in religious terms. But his story underlines how our ancestors are not simply us in different costumes: the context in which they lived shaped their mind-sets and attitudes. History can show us how the law has shaped behaviour in the past – but transposing those laws to the present day will not necessarily have the same effect. As to whether, and if so how, the law should be reformed – that is a challenge for another day.