Common Law Marriage
Although most states no longer recognize common law marriage, in England and in the English colonies of North America it wasn’t unusual. Common law marriages were for the lower classes, but by no means limited to them. They were simply married without the benefit of clergy or magistrate. In any marriage, the property of the wife became under the control of the husband, who could dispose of it as he chose. Property discussions were not normally part of the situation for a couple entering into a common law marriage.
The belief remains that simple cohabitation for a defined period of time constitutes common law marriage. This is most often not the case and was not the case for common law marriage in the colonies, which descended from the practice in England. To be married under common law, a declaration of intent was required. There was no need for any written document, including a license, which was one reason they became popular in England, as they were recognized without the payment of a tax to the government, or a fee to the Church.
Parish registries, which in many communities were the more reliable census of the region, carried common law marriages and the births resulting from them on their pages. There was little stigma among the working classes. Members of the upper class who entered into common law marriages to avoid an undesirable union arranged by their parents or guardians may have been met with disdain by their peers, nonetheless, it was frequently resorted to by couples from the gentility when love overwhelmed financial and social considerations.
To enter a common law marriage the couple performed a ceremony which was known as spousal contract. In the southern colonies such as Virginia, the ritual was known as handfasting. The couple held hands and exchanged vows which, much like the modern equivalent, were chosen by themselves. If no witness was available they could still exchange their vows as long as they both attested under oath that they had done so if later challenged (say by an irate father of the bride). In essence, common law marriage required an oral contract of marriage and was recognized as valid by most authorities of Church and State in the colonies (the Roman Catholic Church did not).
There was a recognized contract of future marriage as well, and if the couple so contracted found themselves to be with child before the date of the marriage arrived, under the terms of the future marriage contract they were automatically wed. Oral contracts were again sufficient, but it was a practice among many women of the working class to have a friend or sibling listening as the promises were exchanged, to ensure later enforcement if the gentleman tried to shirk his obligations.