Informal Marriage, Cohabitation and the Law 1750–1989

184 Pages·1990·18.744 MB·English

by  Stephen Parker (auth.)

INFORMAL MARRIAGE, COHABITATION
AND THE LAW 1750-1989
Also published by Stephen Parker
COHABITEES
Informal Marriage,
Cohabitation and the
Law 1750-1989
STEPHEN PARKER
Solicitor, Senior Lecturer in Law,
Australian National University
Palgrave Macmillan
ISBN 978-1-349-09330-4 ISBN 978-1-349-09328-1 (eBook)
DOI 10.1007/978-1-349-09328-1
© Stephen Parker 1990
Softcover reprint of the hardcover 1st edition 1990
All rights reserved. For information, write:
Scholarly and Reference Division,
SL Martin's Press, Inc., 175 Fifth A venue,
New York, N.Y. 10010
First published in the United States of America in 1990
ISBN 978-0-312-04096-3
Library of Congress Cataloging-in-Publication Data
Parker, Stephen, LL.B.
Informal marriage, cohabitation, and the law, 1750-1989/ Stephen Parker.
p. em.
Includes bibliographical references.
ISBN 978-0-312-04096-3
!.Marriage law-Great Britain-History. 2.Unmarried couples-Legal
status, laws, etc.-Great Britain-History. l.Title.
KD753.P37 1990
346.4201'6'09-dc20
[344.2061609] 89-70030
CIP
Contents
Acknowledgements vii
1 Introduction 1
1. Aims 1
2. Summary 2
3. Theoretical Concerns 6
2 Family and Marriage in the Mid-Eighteenth
Century 9
1. Introduction 9
2. The Family 10
3. Marriage Law 12
4. Marriage in Practice 14
5. Conclusion 27
3 Lord Hardwicke's Act 1753: The Landed Embrace
the Loaded 29
1. Introduction 29
2. Structural Changes in Economy and Marriage 31
3. Clandestine Marriage 35
4. The Law-Makers 38
5. Conclusion 47
4 Marriage and the Law 1754-1927: The State
Retreats? 48
1. Introduction 48
2. The Civil Marriage Act 1836 48
3. Informal Marriage 1836-1927 74
4. Conclusion 93
5 Welfare, Affluence and the Family since 1945 96
1. Introduction 96
2. Welfare 98
3. Affluence 106
4. The Family 111
5. Conclusion 123
6 The New Family Law 126
1. Introduction 126
2. Post-War Family Law 127
v
vi Contents
3. A Conventional View 129
4. An Alternative View 131
5. The Functions of the New Family Law 140
6. Cohabitation Law 147
7. Conclusion 156
7 Conclusion 158
References 163
Index 174
Acknowledgements
This book grew out of a doctoral thesis and I am grateful to the
following, who read part or all of the thesis and who made helpful
comments: Peter Alcock, Hugh Bevan, Stephen Bottomley, Harry
Calvert, Bill Chambliss, Robert Dingwall, Rhian Ellis Parker and
Pauline Todd. Particular thanks are due to Harry Calvert for
encouragement and Rhian Ellis Parker for encouragement bordering
on a campaign.
vii
1 Introduction
1. AIMS
The concept of marriage is of central importance in many disciplines
within the social sciences. Feminist concern with the family as a major
site of women's oppression has targeted marriage as a crucial
ideological and material institution (Smart, 1984, p. 144). Nuptiality
has been the subject of much recent literature concerning the social
history of the family, particularly within the demographic approach
(Anderson, 1980, p. 18). In legal studies generally, and family law
particularly, entry into marriage is seen naturally as immediately
triggering rights and obligations between the parties themselves and
also between them and third parties, such as children or the State.
Yet despite its centrality to so much scholarship, marriage itself is
infrequently problematised.
One illustration of this is the explanations offered by social
historians for apparent fluctuations in illegitimacy rates. Laslett
postulated the existence of a 'deviant subsociety of bastard bearers'
(Laslett, 1977) whilst Shorter suggested a general ideological shift
that unfroze the libido 'in the blast of the wish to be free' (Shorter,
1977). Neither dwelt on the point that whatever defines marriage will
define non-marriage and consequently the legitimacy of children
although Laslett and his colleagues in the Cambridge Group for the
History of Population and Social Structure have subsequently
adopted a more cautious tone. We are now told, in unappealing
terms, that 'in certain cases it would appear that we are observing
bastard-bearers who belong to families where the distinction between
legal and illegal (sic) marriage remained uncertain' (Laslett, 1980,
p. 134).
This book is about the way that the State, through its laws, has
created and then adjusted the boundaries of legal marriage. It is not,
however, intended to be a legal textook but more an attempt at
explaining how certain laws have come about. Nor am I claiming that
the State has a monopoly over the meaning of marriage. In fact, the
latter part of the book specifically concerns the way that unmarried
cohabitation is attracting legal consequences. The State most certain
ly does not call these relationships marriage. It does, on the other
hand, increasingly regulate them as if they were marriage. In
1
2 Introduction
summary, I am interested in how and why the law has created points
beyond which two people who are, or were, living together in a
domestic relationship become subject to legal consequences which
would not arise between them if there were no domestic relationship.
To put it slightly differently, why do some forms of cohabitation
become subject to legal regulation whilst others do not?
I argue that marriage is continually redefined through legal and
social practice. The account begins at a time when marriage could be
relatively formless and then traces the story through the high point of
formality and towards a retreat from formality as cohabitation is
increasingly juridified. In the course of exploring this I aim to suggest
ways in which changing economic, social and political circumstances
contribute to the process of redefining the dominant meaning of
marriage and, to a lesser extent, how the new meaning acts back on
those circumstances. The book is therefore more generally about the
relationship between economy, society and family law.
The material for the book derives largely from a doctoral thesis on
the history of informal marriage (Parker, 1985). That thesis in turn
was prompted by the material uncovered when writing a straightfor
ward legal text on modern unmarried cohabitation (Parker, 1981 and
1987). When looking at the origins of the cohabitation rule in social
security law I discovered that cohabitation had been recognised in the
unemployment benefit legislation of the 1920s, initially for the
purpose of increasing the amount of benefit. In the course of the
parliamentary debates on the Unemployed Workers (Temporary
Provisions) Bill 1922 one labour MP suggested that 'it is only the
parson's fee that makes her a wife' (W. Thorne, Off. Debs. (HC) vol.
147, col. 1579). This prompted the idea of looking at the history of
the parson's fee. The resulting thesis attempted to demonstrate how
marriage laws over time have assimilated, or gathered in, rela
tionships which approximate to the current form of legal marriage
and have attempted to deter those which do not.
2. SUMMARY
The year 1750 has been taken as a starting point for a number of
reasons. The simplest of these is that marriage law was transformed
by Lord Hardwicke's Marriage Act 1753 and it is essential to describe
the events leading up to the passage of the Act. Second, it shortly
predates what is still (not unproblematically) called the Industrial