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It is a common Christian belief that sex outside of marriage (whether extra-marital or pre-marital) is sinful. But what about common law marriage? In 10 US states and the District of Columbia (source), a marriage can be contracted by a cohabiting couple putting themselves forward as married - beyond mere cohabitation, there is a necessity to present one's selves as being married. (Which as a practical matter is not hard - many people will assume that a cohabiting couple are married, so in a common-law marriage jurisdiction, a cohabiting couple can become married simply by doing nothing to disabuse others of the perception that they are married.) So, if a couple have a legally recognised common law marriage, are they sinning by living together and having sexual relations? Is a marriage ceremony or a legal document morally necessarily to be married? (If it is, did Adam and Eve have a ceremony or a contract?)

Does the jurisdiction in which the couple live matter for the purposes of its moral status? Is a cohabiting couple, presenting as married, in a common law jurisdiction in which such presentation is sufficient to become married, not sinning by having sexual relations, while a cohabiting couple, making the same presentation, in a jurisdiction which does not recognise common-law marriage, sinning? (Many jurisdictions which used to recognise common-law marriage no longer do - that is true of most US states, most Canadian provinces, Scotland, among others.)

If the legal status of the relationship is relevant to its moral status - what is the moral relevance of jurisdictions (like Australia or France) which provide legal recognition to cohabiting couples which is legally distinct from marriage? (i.e. de facto status in Australia, pacte civil de solidarité in France). If legal recognition is morally significant, does it morally matter whether a jurisdiction considers a relationship established by repute to be equal in status to formal marriages, or to have some distinct legally recognised status?

(In this question I am only asking about heterosexual couples who are exclusively monogamous, who are freely consenting, adults, of sound mind, and not related.)

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I'd agree with what Caleb said but I'd also add that the question is based upon the assumption that the government should have any authority over defining and granting marriages. Of course, in modern society, in just about every country, this assumption is commonly held but marriage, from a Christian perspective, was not instituted by government, it was instituted by God. Man had no authority over God, and God is not bound by Man's laws, even those relating to marriage. A better question might be "What is marriage from a doctrinal perspective? Is it a legal marriage?" –  David Stratton Oct 13 '12 at 20:20
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3 Answers 3

Allowances of the law have little or no bearing on the moral standing of marriage or any other Christian practice. Where applicable we are bound to follow relevant laws in addition to the prescription of our doctrine, but this is in addition to not in place of them. Common law does not define marriage, although it may or may not make an applicable legal hoop necessary.

Most of marriage practice among Christians boils down to tradition, but the traditions are built on principles. While much variation is found in the details, the principles guiding what is or is not done are pretty fixed. Marriage is a covenant relationship between one man and one woman entered into by profession before men and sealed by God.

How you go about that, the pieces have to all be there. Where the profession is made -- in church or on a lawn, whether officiated by an uncle or pastor or even not at all -- doesn't matter nearly so much that a declaration is made public that two people are now married. Where they sign state paperwork before our after our not at all if not required doesn't change anything. Making such a declaration, then sleeping with someone else would be a violation of that covenant no matter where the state stands.

Christianity even honors marriage as sacred when entered into by two non Christians with a purely secular profession. God's role in the covenant relationship is something we believe just is -- even if the parties involved ignore him.

Obeying the law of the land is required, but our duties do not end where the law stops.

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So, if two people publicly declare themselves to be married, but never legally get married, is that enough for their sexual relations to not be sinful? If two atheists publicly declare "we are now married", without legally getting married, but with the intention of staying together for the rest of their lives, then have sexual relations, have they sinned? –  Zack Martin Oct 13 '12 at 10:56
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@ZackMartin: You're trying to pull out a detail that ought to stay set in the big picture. Two atheists are sinning by not acknowledging God's reign in their life. Defining a specific sin in the context of over-arching life of sin isn't very helpful. As for your specific question, if the state requires registration and two people don't do it, then yes that would be sin by way of not regarding the law of the land. If it doesn't require it, then it doesn't really matter. But the state not requiring something doesn't lower the standards for what marriage is. –  Caleb Oct 13 '12 at 11:06
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AFAIK, no logistics about marriage are formally defined in the bible... It seems unclear to me where the lines are between "tradition" and "law" (or even "lore")... Can you provide a scriptural reference that defines marriage? –  Marc Gravell Oct 13 '12 at 15:12
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Plus, and you'll see this about 5 million times on this site, for most Christians, it don't matter! Christians avoid sin because they love God. We know we hurt him in so many other ways, that frankly whether or not some puddly little edge is a sin is totally irrelevant. Grace means the sin is forgotten anyway. We aren't Muslims who think you need to do such and such to get into heaven- we are a thankful people who love God in spite of the fact that we are forgiven... –  Affable Geek Oct 13 '12 at 15:13
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@Marc, this encyclical is after the Theology of the Body, but the same Pope, see Veritatis Splendor #22, paragraph. 2. Also see EWTN's compilation of Theology of the Body related addresses and this one in particular. I was over-stating the 5 years of teaching part, but there are only a handful of NT references concerning the Theology of the Body and this is a big one. –  Peter Turner Oct 15 '12 at 17:16
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Obviously a common law marriage is not a sacramental marriage. But, as it is part of the social compact in some places, someone who is common law married has the same moral standing. If you attempted some form of bigamy with a Catholic, the priest would ask you in accord with:

Can. 1085 §1. A person bound by the bond of a prior marriage, even if it was not consummated, invalidly attempts marriage.

"Are you currently married" and you would say, yes.

Similarly, there is no impediment for cohabitating couples to have their marriage sacramentalized by the Catholic Church (except a good long confession by both parties and maybe some other penances as prescribed by the priest).

But, if a common law married man abandons his common law wife to marry another woman, he must get a divorce from her before trying to get a sacramental marriage through the Church.

One thing to keep in mind is the assumption of the automatic nature of common law marriage might not be what you think it is. I was told the same thing you described, but in researching a bit, I think a couple still needs to make a formal declaration, so the marriage isn't just something that falls in your lap.

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Are you sure about the distinction between sacremental marriage and common law marriage? My understanding was that it was allowed precisely because there weren't always enough priests to bless marriages but that they would be recognized after the fact. –  Affable Geek Oct 16 '12 at 23:57
    
Right, there's about 9000 different permutations to be covered under this question. I'm talking about common law marriage between non-Catholics. You're right, if it's your intention to have your marriage blessed, but you don't have a priest assist you, it shouldn't make that marriage sinful, I'll have to look that up, but I it was sinful that would seem totally out of accord with all the other teachings concerning intentions prior to receiving sacraments. Plus, the sacrament is conferred by the couple, not by the priest. –  Peter Turner Oct 17 '12 at 10:35
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Basically I agree with Caleb, but let me add a few comments too long to fit in a comment.

To the best of my knowledge, nowhere does the Bible specify any particular ritual or vows about marriage. Is it even necessary to say: Failing to follow human marriage customs does not make you any less married. Like, if you had a wedding with no bridesmaids or if you had "wedding donuts" instead of "wedding cake", I think few people would suppose this makes your marriage invalid. If you fail to update your relationship status on Facebook to "married", this does not make you any less married. Etc.

The question, then, is just how God defines "marriage". I don't know of any single Bible verse that says, "Thus spake the Lord, to be married in My sight thou must ..." But the Bible does make a number of statements about the nature of marriage that give strong clues. Like Gen 2:24, "Therefore a man shall leave his father and mother and be joined to his wife, and they shall become one flesh." Matt 19:6, "Therefore what God has joined together, let not man separate." And 19:9, "And I say to you, whoever divorces his wife, except for sexual immorality, and marries another, commits adultery; and whoever marries her who is divorced commits adultery." 1 Cor 7:3-4, "Let the husband render to his wife the affection due her, and likewise also the wife to her husband. The wife does not have authority over her own body, but the husband does. And likewise the husband does not have authority over his own body, but the wife does." Etc. You can pick up numerous other statements here and there.

So putting a little interpretation on this, I conclude that basically, in God's eyes, a marriage is a commitment between a man and a woman that for as long as they are both still alive they will live together, and limit their sexual activity to each other and not deny each other. Maybe you'd add something in there about raising children or other points I'm skimming over, but I think that's the bare essentials.

In my humble opinion then, if a man and a woman make such a commitment to each other, even if they do it sitting on the porch with no one else around, then they are married. If later one of them has sexual relations with someone else, that makes it adultery.

We could certainly debate how serious their intentions must be and whether they need to consummate the marriage. I presume that's part of why societies have built up rituals. If it was accepted that all it took to get married was for one person to say, "Hey, you want to get married?" and the other to say "okay", there would surely be many confused situations where one person thought they were getting married and the other didn't, like one person meant "right now" and the other meant "someday". But if you both go through an elaborate ritual and recite vows, there's surely no question of your intent. But on the flip side, if two people are in a plane crash and stranded on an uninhabited island and they decide they want to get married, the fact that there is no minister around to perform the wedding, no government agency to issue the license, no place to buy a wedding gown, etc etc, would be largely irrelevant.

If the government requires married couples to register in some way, than presumably Christians should comply with that in accordance with the general principle of obeying civil authorities. But getting a government-issued marriage license isn't what makes you married, any more than getting a government-issued birth certificate is what makes you be born.

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protected by Affable Geek Dec 10 '12 at 14:42

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