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To re-open problems of the past and to rake up arguments long since laid to rest may seem a singularly pointless exercise for a family lawyer of the late twentieth century. Yet the controversy which raged in the 1840s over the requirements for common law marriage was never satisfactorily resolved; and even today the question could still arise and an authoritative answer be required.
1 As the writer can sadly testify, having frequently heard the expression used in pleas of mitigation in the magistrates' court.
2 It should be borne in mind, however, that certain legal consequences can now arise from the fact of living together as if husband and wife: see below, n.91.
3 In 1974 thirteen States and the District of Columbia recognised common law marriages: see Homer H. Clark Jr., Domestic Relations, p. 67.
4 See Dicey's Rule 32(2), Dicey and Morris, Conflict of Laws, 10th ed., p. 261 and the authorities there cited.
5 See Ruding v. Smith (1821), 2 Hag. Con. 371 (especially at p. 391) where a common law marriage in the Cape of Good Hope was upheld by Lord Stowell.
6 Unless the law of the country of blast-off were held to apply, which seems unlikely.
7 See K. Lipstein [1957] C.L.J. 126; Cheshire and North, Private International Law, 10th ed., p. 325.
8 [1957] P. 301.
9 [1963] P. 411; K. Lipstein [1963] C.L.J. 50.
10 However, the Court of Appeal was critical of the rather similar earlier case of Kochanska, Kochanski v. [1958] P. 147Google Scholar, where Sachs J. “went further than the cases warrant” (per Ormerod L.J. at p. 426).
11 See Dicey and Morris, 'op. cit., p. 271, and the Irish case of Du Moulin v. Druitt (1860), 13 Ir.C.L. 212, which is criticised by Cheshire and North, op. cit., p. 330.
12 26 Geo. II, c. 33; the Act was “for the better preventing of clandestine marriages.”
13 They were exempted from the Act's requirements: s.18.
14 S.8.
15 Marriage Act 1823 (4 Geo. IV, c. 76), s.22.
16 The Act of 1949 has been amended by a series of minor Acts passed in 1954,1958,1960,1970,1983 and 1986.
17 Ss.25, 49.
18 Ibid.
19 (1856), 4 W.R. 675.
20 See Bartholmew, G. W., (1954) 17 M.L.R. 344,347. Criminal penalties may be incurred, however, by the person solemnising: Act of 1949, s.75Google Scholar.
21 Namely according to the rites of the Church of England or under a Superintendent Registrar's certificate.
22 (1973) 89 L.Q.R. 181. Compare the short-lived Marriage Act 1653, which prescribed a civil ceremony before a J.P., and also provided that no other form of marriage was to take place.
23 6th ed., p. 45.
24 P. 45, n.8.
25 14th ed., p. 165. There is a cross-reference t o another paragraph where it is created that a marriage “shall” take place in accordance with the Act, citing ss.25(d) and 49(a), which d o not seem to go that far. For a similar rejection of the possibility of a common law marriage in England see Joseph Jackson, Q.C., The Formation and Annulment of Marriage, 2nd ed., p. 218.
26 [1963] P. 283.
27 See (1958) 7 I.C.L.Q. 205. 210.
28 S.75(2)(a). There are exceptions for marriages by special licence an d for Quake r an d Jewish marriages.
29 [1966] 1 Q.B. 159.
30 But the accused there had purported to solemnise an Islamic marriage.
31 (1974)90 L.Q.R. 28.
32 Above, n. 22.
33 See, however, Boddington v. Wisson [1951] 1 K.B. 606, 611 and Coates v. Diment [1951] 1 All E.R. 890.
34 See below, p. 121.
35 P. 30.
36 1984, p. xxvii.
37 (1942) 236 Mo. App. 1223. See Weyrauch and Katz, American Family Law in Transition, pp. 115–126, where the authors point out that the court also relied on the presumption in favour of marriage rather than concubinage.
38 See above, p. 108.
39 In a letter to the present writer Mr. J. L. Barton kindly drew attention to some of the surprising consequences which would seem to ensue if the presumption of non-revival is taken literally.
40 (1843) X CL. & Fin. 534; 8 E.R. 844. (References below are to the English Reports.)
41 Who had been born in Boston, Massachusetts, but who read mathematics at Cambridge (where he was second wrangler in 1794) and later became High Steward of the University: D.N.B.
42 Yet the Lord Chancellor delayed six months after other Lords had given their opinions before delivering his own.
43 See pp. 906n, 953. See also Beamish v. Beamish (1861) 9 H.L. Cas., 274, 338.
44 P. 889.
45 They retained this jurisdiction until the Matrimonial Causes Act 1857 created the new Court for Divorce and Matrimonial Causes.
46 Despite the fact that Lord Brougham was willing to confine the suggestion to ecclesiastical judges who were Privy Counsellors (for whom there were clear precedents for being invited to advise).
47 Lord Campbell described it as “… a matter of such unspeakable importance” (p. 905).
48 Commentaries on the Laws of England, Vol. 1, p. 439.
49 See Matrimonial Causes Act 1973, ss.12, 13, 16.
50 Legitimacy Act 1976, s.l.
51 Hyde v. Hyde (1866), L.R. I P. & D. 130.
52 It followed that the court had no jurisdiction in that case; but see now Matrimonial Causes Act 1973, s.47(1).
53 Bracton was clear on the point: Book 4, DeActionis Dotis, p. 303; Pollock and Maitland, History of English Law, vol. ii, pp. 374, 375.
54 See below.
55 The speeches run to 308 pages of the Clark and Finnelly report.
56 P. 959. Lord Lyndhurst cited Swinburne's Treatise of Spousals.
57 P. 959.
58 Ibid. See also J. Jackson, op cit., pp. 13–15.
59 Bracton, Bk. 5,419b was cited as clear authority for this: “Haeres est legitimus quern justae nupliae demonstrant…sive verba de praesenti … ”Bracton also stated that after an informal marriage a feoffment by a baron to his feme was void (Bk. 4, 303).
60 An Act of 1540 invalidated an informal marriage if there was later a formal marriage of one party to a third person; but it was repealed in 1548. See J. Jackson, op cit., pp. 18, 19.
61 An Act of 1653 required a civil ceremony before a Justice of the Peace: J. Jackson, op. cit, p. 59: and see above, n.22.
62 Above, p. 107.
63 See Compton v. Bearcroft (1769) Bull N.P. 113.
64 Nevertheless they were denied the remedy of a petition for restitution of conjugal rights: Green v. Green, 1 Hag. Con. (App.) 9 (no date appears, but the case is referred to in the footnote to a case of 1796).
65 S.18.
66 See pp. 896, 966. See also K. Scott [1948] C.L.J. 446.
67 P. 953.
68 P. 967.
69 See above, n. 59.
70 The two cases cited (p. 961) were Del Heath's Case and Foxcroft's Case, for neither of which was a proper report available. Pollock and Maitland found the actual record of the cases: see History of English Law, Vol. 2, p. 384n.
71 Dalrymple v. Dalrymple (1811), 2 Hag. Con. 54 at 68, 69.
72 See Pollock and Maitland, op. cit., p. 376.
73 Legitimacy Act 1976, s. l.
74 See F. H. Newark, (1945) 8 M.L.R. 203.
75 See Matrimonial Causes Act 1973, s.16.
76 Until 1971 the decree annulling a voidable marriage used the same form of words as a decree granted in respect of a void marriage.
77 Matrimonial Causes Act 1973, S.12(C). For the reasons for this rectification (which occurred under the Nullity of Marriage Act 1971), see Law Com. No. 33, Report on Nullity of Marriage (1970), paras. 11–15.
78 See Scrimshire v. Scrimshire (1752), 2 Hag. Con. 395. Helmholz, R. H. points out that it was thought more appropriate to bring an action for formal solemnisation if the marriage had been informal: Marriage Litigation in Medieval England (1974), p. 67Google Scholar.
79 Haydon v. Gould (1710), 1 Salk. 119.
80 [1963] P. 263.
81 (1861). 9 H.L. Cas. 274.
82 At p. 338.
83 Professor Sir Rupert Cross points out that in the event of a tied vote the decision appealed against becomes the decision of the House: Precedent, 3rd ed., p. 92.
84 (1847), 1 Rob. Ecc. 580.
85 Notice, however, that courts in Australia have adopted a narrower interpretation of this decision, taking the view that an episcopally ordained clergyman's presence is still required if obtainable: , Dickey, Family Law (1985), p. 120 and the authorities there citedGoogle Scholar.
86 [1946] P. 61.
87 Practice Note [1966] 1 W.L.R. 1234.
88 See [1986] C.L.J. 33 (Glanville Williams).
89 R. v. Shivpuri [1986] 2 W.L.R. 988, overruling Anderton v. Ryan [1985] A.C. 560.
90 Above, pp. 110–112.
91 See, for example. Domestic Violence and Matrimonial Proceedings Act 1976. s.1(2); Inheritance (Provision for Family and Dependants) Act 1975. s.l(l)(e); Administration of Justice Act 1982, s.3.
92 Not the early canon law, however, which insisted on commixtio sexuum before the marriage could be valid: see J. Jackson, op. cit., p. 10, quoting Hincmar of Rheims.
93 See Law Reform (Miscellaneous Provisions) Act 1970. s.2.
