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Family Law

The leading authority on all aspects of family law

01 MAR 2011

The Evolution of the Common-law Marriage Myth

Rebecca Probert

Professor of Law, University of Warwick

It is well known that the majority of modern cohabitants believe that there is such a thing as ‘common-law marriage' that gives them the same or similar rights as if they were married (see eg A Barlow et al, Cohabitation, Marriage and the Law: Social Change and Legal Reform in 21st Century Britain (Hart, 2005)). What has been less clear is exactly when and how this myth evolved. Attempting to date the emergence of something as diffuse as a belief is obviously difficult, especially when it was never universally held. But by examining the use of terms such as ‘common-law wife' and ‘common-law marriage', and by examining the advice sought by and given to cohabiting couples, it is possible to begin to build up a picture of when the myth began to emerge, especially as an increasing range of material is now available in a form that allows for instant and comprehensive electronic searches. In attempting to pinpoint more precisely the time at which the myth emerged, I examined not only Hansard (from 1801) but also a number of newspapers such as The Times (from 1785), The Observer (from 1791), The Guardian (from 1821) and large parts of the Daily Express and Daily Mirror (from 1900). Given the importance of women's magazines as a source of advice and (mis)information, I also read an entire decade-worth of the popular weekly magazine Woman and the monthly glossy Cosmopolitan (which were unfortunately not available in a searchable electronic form - although seeing the articles in context did add to the experience).

To read the rest of this article, see March [2011] Family Law journal.

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