PROFESSOR REBECCA PROBERT

THE MYTHS OF HISTORY

REVISING INITIAL ASSUMPTIONS

• Original assumption that cohabitation had been common in the past• … disappeared upon inspection of the

original sources• New resources now available in digitized

form• Legal • Parliamentary• Newspapers• Marriage records

KEY POINT NO. 1: COMMON-LAW MARRIAGE HAS NEVER EXISTED

• The ideas that before 1754 it was possible to marry by a simple exchange of vows, or that couples who lived together would be presumed to have married…•…derived from a nineteenth-century American court misunderstanding English precedents

HOW COHABITANTS WERE ACTUALLY TREATED BY THE LAW…

KEY POINT NO. 2: COHABITATION WAS FAR LESS COMMON IN THE PAST THAN NOW

• The standard view: in contrast to the 1950s and 1960s… ‘earlier periods show greater similarity in terms of cohabitation and “illegitimacy” with recent decades’ (Professor Albert Weale, preface to Happy families? (British Academy, 2010))

BIRTHS OUTSIDE MARRIAGE, 1600-2010

1600

1620

1640

1660

1680

1700

1720

1740

1760

1780

1800

1820

1840

1860

1880

1900

1920

1940

1960

1980

2000

0

5

10

15

20

25

30

35

40

45

50

THE IMPACT OF DIGITAL RESOURCES

Dunkirk and Hernhill Kilsby0

10

20

30

40

50

60

70

80

90

100

NEITHROP, 1851

• Occupied by the ‘poor and persons of bad character’• Claimed that in Gould’s Buildings

‘five of the eight houses were … occupied by cohabiting unmarried couples’

IN REALITY…

• Actually only two out of eight at any given time• Of the 847 households examined:• 629, or (74%) headed by a couple • Marriages traced for at least 95% and possibly 98.5%

‘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.’

‘LIVING TOGETHER’?

MAYHEW’S COSTERMONGERS

• ‘[o]nly one-tenth – at the outside one-tenth – of the couples living together and carrying on the costermonging trade, are married’.•H Mayhew, London Labour and the London Poor (1851)

THE COSTERMONGERS’ RESPONSE

• ‘downright falsehood’

• condemnation of ‘the conduct of Mr Mayhew, in publishing statements calculated to prejudice a great body of individuals struggling over all difficulties to get an honest living, without investigating the character of his informants, or requiring them to substantiate such statements.’

LAW AND BEHAVIOUR

•Punishment•Deterrence•Minimization

KEY POINT NO 3: DATING THE EMERGENCE OF THE COMMON-LAW

MARRIAGE MYTH

•Research has established that a majority of cohabitants and the population at large believe that there is such a thing as ‘common-law marriage’ which gives them similar rights as if they were married

HOW DID THE COMMON-LAW MARRIAGE MYTH EMERGE?

• 1960s: term began to be applied to cohabitation

• Early 1970s; opponents of the ‘cohabitation rule’ argued that this should not apply to all cohabitants but only those living in ‘common-law marriages’

• Individuals began to ask what rights they have as a result of their ‘common-law marriage’

NEW RIGHTS AND HOW THEY WERE REPORTED…

• 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.’

(Daily Express, 1975)

PROPERTY RIGHTS

• ‘“Security” for common-law wives’ (The Guardian)

Rings on their Fingers (1978)

‘Did you know,

Oliver, that I am entitled to a third of your flat?’

BIRTHS OUTSIDE MARRIAGE, 1971-2001

1971 1976 1981 1986 1991 1996 20010

50000

100000

150000

200000

250000

300000

Same address

Different address

Joint registration

Sole registration

SUMMARY

• English law never recognised common-law marriage and cohabitation was vanishingly rare in earlier centuries• The extent of cohabitation was broadly

consistent with its legal treatment until the 1970s• The emergence of the ‘common-law

marriage myth’ in the late 1970s was followed by a significant increase in cohabitation