Adultery: An Exploration of Love and Marriage

by Robert and Mollie Brow

Appendix C

In What Sense Is Common Law Living a Marriage?

If we have only lived in one kind of culture we assume that it is easy to know who is married. In most western countries a couple are said to be married when they obtain a legal document from a licensed minister in a church, or from a judge in a civil ceremony. We therefore assume that the marriage could be verified from the proper register. These days it will be recorded somewhere in the proper computer files. Governments expect a married woman to be able to prove her right to her husband's property, or a pension, or a passport in her husband's name. But this legal understanding of what constitutes a marriage would have seemed strange in Old Testament times.. The main reason is that until very recently in most cultures the marriage contract or financial arrangement has been called the betrothal. The betrothal set out the terms of any dowry that should be paid and the legal rights of each party. It was often settled verbally or in a written form between the parents long before the marriage, as still occurs in India and the Middle East.

 But the contract only came into force when the couple were married, and that was defined as the time when the couple began living together. We still retain the vestige of this idea in the legal argument that a couple are not properly married until the marriage is consummated.

 In the ancient world the actual wedding day could be marked by feasting and celebration, but the marriage could also take place without fuss merely by the act of sexual intercourse. Abraham's servant for example was sent to find a wife for Isaac. The betrothal contract was made four or five hundred miles away, and Rebekah was brought back for the marriage which apparently required no ceremony or celebration. "Isaac brought her into his mother Sarah's tent. He took Rebekah, and she became his wife; and he loved her." [Genesis 24:67] It is interesting that there is not one example in the Bible of a priest or rabbi or minister or judge officiating at a marriage. This concept of betrothal can be seen clearly in the way Matthew's Gospel explains the marriage of Jesus' mother from Joseph's point of view. Mary is described as betrothed, presumably in an arranged marriage some time before. When Joseph discovered she was more than three months pregnant, and assumed she had been unfaithful, he was tempted to cancel the betrothal contract instead of marrying his future wife. He is then told "Do not be afraid to take Mary as your wife." When he did as he was commanded "he took her as his wife."

 Taking Mary to be his wife meant that Joseph and Mary began living together. Neighbours and family would have said "They are now married," though the writer adds that Joseph "had no marital relations with her until she had borne a son, and he named him Jesus." [Matthew 1:18-19, 24-25] In this case the betrothal contract, which would give Jesus the legal right to the throne of David, was still in force. And we assume this was registered by the census officer in Bethlehem. But there is no mention of a wedding ceremony or marriage feast. It would have been too embarrassing.

 We can trace the gradual change in marriage customs in our western culture. Under the feudal system of Europe serfs had no property so they had no need of a marriage contract. In some cases there might have been a special meal and celebration, but mostly they just agreed to live together. Only the rich and noble would expect a church service.

 As the feudal system gave way to capitalism, a legal definition of marriage emerged based on recorded documents. Lawyers needed to know, if someone dies without a will, who inherits the property. Instead of the betrothal being made earlier by the parents, it was now the marriage that was viewed as setting up the contract. And since the priest was often the only literate person in the village he was charged with making sure that the marriage was properly witnessed and recorded in the parish register. Eventually the betrothal lost its legal importance, and now an engagement is merely the romantic occasion when the proposal is made, accepted, and announced to friends. At first the ancient practice of betrothal followed by sexual union and living together coexisted with the new idea of having the marriage document witnessed and signed by a priest. Gradually the mediaeval church began suggesting that wedding vows can only be made before a priest in a church. Any other kind of sexual relationship was sinful. Eventually governments began providing facilities for marriages to be witnessed before a judge as an alternative to being performed by a priest or minister of a church.

 The Roman Catholic church refused, and still refuses to recognize civil marriages. They insisted that Roman Catholics needed one of their priests to marry the couple properly. This was based on the theory that Caesar may record marriages on earth, but only the church can perform marriages that are recorded in heaven. After the French Revolution the government reciprocated by ruling that a church wedding has no legal significance. The result is that Roman Catholics had to be married legally in a government office on Friday, and married by God on Saturday, which is the way marriages are still performed in several European countries.

 Our laws against bigamy illustrate the concern of governments with legal contracts. In a modern capitalist system based on monogamy it seemed necessary that no one should be legally married to more than one person. When a married man or woman dies without a will, lawyers must be sure who is legally entitled to the bank accounts, stocks, and real estate. Bigamy is therefore a very serious crime. It adulterates the legal status of a marriage, and it is punished very severely. But obviously there is no law against bigamy in a country where a man is allowed to marry more than one wife, as in Arabia.

 In western countries we have therefore developed an elaborate system of recording who is married to whom. Local and state governments have established methods of recording marriages as legal documents. But of course the government computer has no interest in whether there is sexual intercourse before the legal moment, or whether there is any intention to be faithful afterwards. A couple could part a week later, a man could have a whole harem of women living with him, or both partners could have a string of bedmates over many years, but the government only wants to know who is the legally recorded husband or wife. Meanwhile there is the added confusion that hundreds of thousands of couples are living together common law as if they were "properly married." Until recently churches called this living in sin or fornicating. The English word fornication is however a translation of the Greek word porneia, which we defined in the previous appendix as "sleeping around without love or commitment." By that definition a common law marriage is not fornication. It is an agreement for a man and a woman to eat together and share a place together as long as the partners want the relationship to continue.

 Some of the common law couples do eventually get legally married, especially when children are expected. Meanwhile Christian parents agonize over whether their daughter, who has been living with a nice man for the past two years, should be encouraged to bring him home, and if so, do you put them in the same bedroom? For most younger people such parental concerns seem incomprehensible relics of the Victorian era. What is significant is that even in such informal common law unions there is a clearly understood concept of adultery. Once a couple are living and eating together in the same home there is an implied understanding that they should be as faithful to each other as if they were legally married. A sexual relationship on the side is therefore viewed by the other partner as adulterous.

 It is also evident that when such relationships end the break up feels like a divorce, especially for the partner who would have preferred the relationship to continue. This suggests that in practice a common law relationship is a form of marriage. It can also have a strong element of mutuality which is central to our view of marriage.

 In Europe in the middle ages lawyers had three requirements for a valid marriage. It should be by mutual consent, there should be a witnessed statement of intent, and there must be physical consummation of the union. Presumably most common law relationships have consummated their union. Free consent is guaranteed because the essence of a common-law relationship is that both parties live together by choice. The only reason that long term common-law unions were not viewed as marriages was therefore the lack of statement of intention. In our generation governments have discovered that hundreds of thousands of couples are living together common-law. Public opinion has required that a woman who has lived with a man for five or ten years must have some legal protection. Under the pressure of innumerable cases more and more property and social security rights have therefore been assigned to partners who have lived together for certain periods of time. These rights have to be proved by lawyers in each case, and entitlement will be in doubt until a judge has given a ruling. But where this occurs another method of getting legally married has been recognized.

 It therefore seems that governments are now counting a period of openly living together as the equivalent of a witnessed statement of intention. We are therefore reverting to a definition of marriage which has been taken for granted by millions of people in every country of the world. A man and woman who live and eat and sleep together, whether or not there is a marriage contract, are in due course recognized as in some sense married.

 We therefore suggest that a refusal by Christians to recognize common law marriages has become meaningless, and calling them "living in sin" is unhelpful. Churches have every right to say that by leaving God out of the beginning of a union, and avoiding long term vows, common law marriages are based on sexual and emotional compatibility rather than spiritual commitment. But it seems unreasonable for churches to assume they they are called upon to settle the legal validity of this or that particular union. That is the duty of lawyers and judges.

 Our task is to explain what love is, and no government is equipped to do that. It is time we stopped giving the impression that in sexual matters the only question to be examined is whether an atheistic secular government has given the legal document.

 In this book we define a Christian marriage as a paired commitment to love and mutuality (Chapter 2 and Chapter 3) with the expectation of permanence and concern for each other's longings (Chapter 3 and Chapter 4). We believe that the intention to live in such a paired relationship is best settled before the beginning of any sexual intercourse. And this should be done publicly before God and both families, and with the prayers and encouragement of the church community.

 But we recognize that many only discover the possibility of this kind of faith commitment after unsatisfactory sexual relationships on other foundations. We do not have to condemn their past, only recommend the resources for loving that God so freely gives by the Holy Spirit (Chapter 7). And if the couple are already in a common law relationship we should encourage them to deepen their love and mutual commitment into a genuinely spiritual relationship.