Posted on 12/30/2009 7:39:32 AM PST by walford
Probably the best single sentence on this thread.
Our marriage laws developed in a society in which many people were completely illiterate, and many more were barely literate. It was a minority of citizens who were equipped to negotiate a written contract and really know what was in it. Contracts of all kinds especially land purchases) and marriage licenses too, were quite often “signed” with an X, next to which someone else (a witness or occasionally an attorney, had written “John Doe, his mark”. Illiteracy to the degree of not being able to write one’s own name is obviously a huge obstacle to negotiating a contract and knowing what you were signing. Women were also regarded as chattel by the law — they were owned by their fathers until marriage tranferred ownership to their husbands.
While that state of affairs explains the utility of government-defined marriage, it’s worth noting that at that time, most if not all states fully recognized common law marriage, i.e. if a man and woman lived as husband and wife, and presented themselves to others as husband and wife, then they were just as married in the eyes of the law as a couple who had an actual marriage license and/or had been married by a member of the clergy.
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