Today In Wyoming's History: February 2: Common Law Marriages

Today In Wyoming's History: February 2: 1943  The Wyoming Supreme Court determines that it is not possible to contract common law marriages in Wyoming.

As folks who might stop in here from time to time know, this blog looks at historical topics and trends.  Here's an interesting one which shows up on the Today In Wyoming's History blog, the judicial declaration that common law marriages could not be contracted in Wyoming.

Wyoming is a common law state, like all but one of the US states, and like most of those states it generally recognized the earlier decisions of English courts.  One of the doctrines developed in the United Kingdom that most states recognized, and which many still do, was the doctrine of the Common Law Marriage.

Common law marriages are a bit misunderstood in modern times, and may have been equally misunderstood for the most part in earlier eras as well.  Basically, the doctrine held that if a couple held themselves out to the world as husband and wife, and acted as if they were husband and wife, by operation of the common law, they were husband and wife.

The reason for this doctrine, which is actually a fairly shocking one if considered in the context of its time, had to do with a breakdown in social order caused by the Reformation in England.  Most Americans don't study the English Reformation, and probably most English men and women do not either, but the sometimes assumed story that England was Catholic one day and the Protestant the next, due to fiat declared by King Henry VIII, is simply wrong.  In reality, England was strongly Catholic up until Henry began to seek to annul his first marriage and even when he split from Rome in his mind he was only going so far as to declare himself the head of the Church in England.  He didn't seem to think he was creating a new Church.  But, coming in the Reformation period itself, this couldn't help but open the door to more radical theologies.  This began a period of long struggle in England in which the Catholic church, in spite of strong and official repression, maintained a fairly vigorous presence, if often underground, and occasionally it gained support from those in high office, including two post Henry VII monarchs.  At the same time, more radical Protestant theologies sometimes claimed official support, or were in the ascendancy.   Ultimately Protestant Queen Elizabeth I is thought to have settled the matter by more or less officially creating the Church of England, but in reality the struggle went on for many, many, years.

None of the Christian denominations present in England would have in any way approved of couples living together outside of marriage, but the long protracted struggle created a degree of confusion in some quarters that inevitably lead to weak adherence in those quarters to some things.  It would not be true that people quit living their faith and ignored the institution of marriage, but it would be true to note that there were periods in which repression of various religions was pretty pronounced.  Even the major contending Protestant faiths, which did have radically different theologies from each other, repressed the others when they had the ability to do so.  In such an environment, local parishioners, whose world was very small, might see religious practices shift dramatically during their lifetimes, and perhaps shift back and forth.  Indeed, one major English rebellion, the Prayer Book Rebellion, was sparked by an official act seeking to install the Church of England's Book of Common Prayer into parishes countrywide.

When the Industrial Revolution hit the UK, which it hit early, rural populations moved into the cities, and away from their old parishes.  Having lost the direct connection with the practices of their original homes, it came to be the case that some simply lost a sense of adherence to past practices, and a certain percentage began to live in the fashion above noted.  It was not as if all did, but some did, and it created a social problem of great significance.

In the current age, in which marriage is too often defined as a big party for fodder on some show on TLC, it's often forgotten that marriage is a legal institution, in addition to being a religious institution, for a set of very concrete rules.  For one thing, the union of couples creates children.  Without a legal structure, those children were, and still are, left very much at the mercy of fate if the father departs.  The civil institution of the marriage, therefore, exists in major part not so much as to bind the husband to the wife, but the father to his children, legally.  It was not in the state's interest to allow children to fall into desperate poverty due to the departure of the father.

Likewise, the civil institution of the marriage also brings into operation the laws of intestacy.  This is rarely thought of by marrying couples today, but it was a huge matter in much of European history, and it remains significant today.  It is almost always the case that one spouse dies before the other, and when that occurs, if there's no will, the law of intestate succession applies. Such provisions vary from place to place, but generally what happens is that both the surviving spouse, usually a widow, and the surviving children, inherit.  The thought really was that this required the children to take care of the widow, as neither would inherit enough to otherwise get by, no matter what they were inheriting.  Generally, in spite of its rough and ready manner, that actually worked pretty well.

At least it worked well if there was a marriage. If there wasn't, it didn't work at all.  A mother of children who was not married had no claim on the father or on his estate.

Legally, this needed to be addressed and was addressed in a variety of ways.  From the first instance, in most localities (including Wyoming) couples living together outside of marriage was a crime.  And it wasn't a crime that was winked at.  I've read of at least one instance in which the male member of such a union was ordered by a court to marry or go to jail by a Wyoming court.  But in addition to the criminal sanction, the law also recognized common law marriages.

It was never the case that a couple simply living together, or even one living together and having children, were married at common law.  The law held that if they held themselves out as married, they were.  This was, however, a fairly easy standard to meet, and most couples of earlier eras that lived together without being married did meet that definition. The distinction was not a slight one, as it meant that the common law wife had a claim on the income of the common law husband, and the children were legitimate at law.  Intestacy laws applied to the spouses as if they had a conventional marriage.

This was the law in Wyoming, like elsewhere, early on, but some time before World War Two Wyoming liberalized laws in this quarter, and did away with the "hart balm statutes."  Now regarded as quaint, the heart balm statutes were laws that provided civil remedies for misconduct between men and women.  These included actions for "breach of promise," "alienation of affection" and "criminal conversation."  In the same order, breach of promise was a failure to carry through with a promise to marry.  Alienation of affection was an act by a party that caused a spouse to leave his or her spouse.  Criminal conversation was adultery.

Even when I went to law school in the late 1980s, it was popular to snicker at these old civil causes of action, but that amusement, once again, failed to appreciate the wisdom of the old law or the reasons that the actions had come about.  A promise to marry, even well into the 19th Century, often caused a party to suffer significant financial loss as resources were so thin at the time.  A man receiving a positive reply to a proposal to marry often went into significant debt trying to make himself ready to support a wife via his trade or occupation.  A woman might begin to incur financial obligations in preparation for the marriage. Both, at that time, were regarded as clearly off limits from the advances of other suitors, and thereby they passed on the opportunities such associations may bring.  Marriages based on financial advantage, not hugely common in the US but a very grave consideration in the upper classes in the UK, could suffer a major disruption if not carried through with.  Alienation of affection likewise provided a remedy for somebody whose spouse took off on them, due to the advances of another person.  In the era when that might mean that a person was suddenly left at home with financial or time obligations that they could not meet, the cause of action made just as much sense as the modern "negligent interference with contractual relations" does today.  Criminal conversation, although oddly named, likewise served such a purpose.

When these were all done away with in Wyoming there was no repeal, by specific statute, of common law marriages. But, in 1943, the Wyoming Supreme Court reasoned that, if the Heart Balm Statutes were gone, common law marriage must be also.  It was not an unreasonable interpretation.

It was a big shift in the law, and it's on that continues to have an impact today, even though almost all of the formerly unapproved of conduct is ignored now.  There may be no ability to contract common law marriages in Wyoming, but the state does recognize them if they're contracted under the law of another state.  As there's no common law divorce, that can and sometimes does create some really interesting legal problems, particularly when a person who has contracted a common law marriage, and then later legally married somebody else, dies.  And a claim of common law marriage is often the claim of last resort for the long term, usually female, member of an unmarried union who is suddenly left with no inheritance. As Wyoming doesn't recognize such marriages to the extent that they're contracted here, that person is often left wishing that they'd paid more attention to the traditional union rather than ignoring it for whatever reason it was, earlier on.