What Does It Mean?

Common Law Marriage

by Mike Fitton

Mike Fitton is a resident of Bracebridge and an honorary member of the MPSGG. He is very knowledgeable on English research and has spoken at many of the club meetings.

Bill and Mary are living common law. What does that mean? They are living together in a relationship similar to marriage, but they aren’t married. Or are they?

Those countries which inherited the English legal system, including most of Canada, inherited the Common Law. That was the collection of local customs and rules which developed about 900 years ago in England. Governments and parliaments were very new then, so that most of the rules protecting things like land and cattle, the repayment of debts, and the safety of people, were Common Law of the country

There were other types of law too. Forest Law protected the King’s hunting grounds. Admiralty Law protected shipping. Canon Law was the law of the church. And so on.

Canon Law said that for a couple to be married, the marriage had to be announced by banns in each church normally attended by the bride and groom. The purpose was to make sure there were no problems, called impediments, such as one of them being already married, or that they were too closely related. Instead of banns, a licence could be obtained from the bishop. Whether by banns or licence, the couple were then married in church, in front of witnesses, and in public. These are the marriages we find in parish records. The official Latin term for this kind of marriage is in facie ecclesiae - in the manner of the church. Marriage was a sacrament in Canon Law.

But Common Law said that marriage was also a contract. Because of this, there were three other kinds of marriage that were legally accepable.

First there were priests and ministers who were prepared to do a quick and private marriage for money Curates of small chapels, and chaplains of colleges and hospitals, would also do marriages with no banns and no licence. No records were kept. The marriage was irregular, but still a marriage since the couple exchanged vows and so made a contract.

Second, since marriage was a contract, it was enough for the couple to exchange vows without a clergyman. This was usually done in front of two witnesses, and some token, not necessarily a ring, given by each to the other. These marriages were done in private houses, taverns, and even on public highways. They were done in private and no records kept. The Latin term for these was per verba de praesenti -by present words.

Third, the couple could agree that they would be married at a later date. Again, vows were exchanged, with some token, in private. If the couple started living together afterwards, that was proof that they had carried through on their promises to many. No records were kept. The Latin term for these was per verba de futuro - by future words.

In those days, living together without marriage was considered a sin, and illegitimate children were considered to have no legal parents at all. To avoid these problems, it became a habit to assume that when a couple were living together, they must have been married privately by one of the three methods above. As you can see, then, a couple living together was considered to be married according to the Common Law.

In your genealogy research, you may find, as I have, that a couple are shown as married, yet there is no record of a marriage. Prior to 1754, they may have been married at Common Law.

Bill and Mary, however, are not married. In 1754, Lord Hardwicke’s Act made Common Law marriages illegal. That became part of Ontario’s law in 1792, and Ontario’s Marriage Act of today continues to make Common Law marriages no marriage at all.

This article first appeared in the November 1992 newsletter, Volume 8 - Number 2