Question about common law marriage [closed]

Question

Hi everyone! I'd like some feedback about an issue I've had since I joined Wikitree when adding marriages for a lot of ancestors of mine.

I think everybody knows that the Roman Catholic religion doesn't allow divorce. Just annullment (in very seldom cases, usually for royalty in past times) or a sort of "separation of the bodies" that doesn't allow any party to remarry.

It happen that in past times (in some cases, up to the 1980' !!), in Catholic countries like Italy, Spain, the Habsburg Empire and most of Latin America, even though there was a civil marriage instance (in some cases just a transcription of the church record, in others a separate ceremony/paperwork) divorce was not allowed. And so there were a lot of cases for lots of reasons, where a couple would live together and raise their children as husband and wife but were not allowed to legally marry because one of them had been married before, thus they lived in a common law marriage.

One practical example in my family (which obviously comes mostly from catholic countries). My great-grandfather had 3 wives (that we know of so far). Wife Nº1 he married in Bohemia in 1901 under austrian catholic rule, so no divorce whatsoever allowed. A year later, he abandoned Wife Nº1  for Wife Nº2 (my great-grandmother) which whom he lived for about 20 years and had 4 children. No proof of any kind of marriage ceremony (yet) and I suspect there wasn't any, yet my great-grandmother used her "married" last name up to her grave, so for her it was a marriage. In the church marriage record with WifeNº1, there is an addendum that says that around years 1922/3 a "separation of the bodies" was processed and granted by the religious authorities on April 9th 1924. A month later a marriage license was issued in New York City for him with Wife Nº3 (I have yet to investigate how legal it was, because he declared to be single )

Woudn't it be useful for the marriage form to have extra fields, like what type of marriage or union it was (religious, civil, common law) and for the "end of marriage" date to add a cause, like divorce, widowhood, annulment, separation w/o remarrying rights, etc. ? What do you think?

Comments

The general answer is "if they regarded themselves as married enter them as spouses, and explain it in the biography.  This stance has been confirmed by Jamie Nelson, but I don't have the links that Jim Richardson usually posts (and my search fu failed me).

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Thanks Melanie. Here's a version with links:

See this authoritative answer from Jamie Nelson on 9 December 2021:

If the people considered themselves married, then they can be attached as spouses in WikiTree even if they weren't officially married. Just explain the lack of a date in the biography.

Similarly Jamie wrote on 24 September 2022:

If they considered themselves as spouses, you can still add them as married even if there wasn't a formal ceremony. Just make sure to explain things in the biography.

If the relationship started at a known time, you could also use that in the marriage date field, maybe marked "about".

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Thanks, Jim!  I was hoping you'd show up with those links.  

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Hola Cristina!
I am adding to the confusion, not helping to answer your question.

Another twist can be seen in the records of Prussian emigrants to Australia around 1840. There was a big debate between the Lutheran churches. Some marriages were sanctioned by one church, but not recognised by the Kingdom of Prussia. Some married emigrants were only listed in a ship manifest as being "single not married".

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Thanks for your answers, Melanie and Jim. I usually do so, but I was wondering if it could be introduced in a more standarized way without resourcing to the bio. I have to better my bios, I guess.

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Thank you all for your replies, I', closing this question because I realized it is a bit redundant.

Answer 1

The reason this gets to be such a involved discussion is that it relies heavily on either word of mouth or hearsay, and purists will want to see reference documentation showing evidence of the marriage or relationship, when typically there is none. However, as Melanie mentioned, if you can come to a clear conclusion that they were regarded as spouses either through enough evidence to satisfy yourself, then I would proceed with marking them as "married" as it relates to WikiTree, but be sure to describe it in the Biography so that others can be aware of why you put that there. There are always purists who may ask later if you are "certain", and the reality is that there are oral genealogies and other word-of-mouth reports that will never have source documentation to clearly prove anything, but it was a well-known fact and likely there is circumstantial evidence to point to that supports it. I'd just make sure you have as much documentation to go on as you reasonably can, in case someone ever asks how you came to that conclusion.

Comments

Well, not always it's just words of mouth, at least for the past 150 years... You can have common addresses in census records, children, family pictures, letters, etc. Just not a marriage records, and my idea was that if one knows that a couple never legally married (for whatever reason, including modern couples that "don't believe in paperwork")  you could state it so from the start and not leave future researchers wondering.

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I agree that what really matters is the discussion in the biography. But I was thinking about the complexity. After the US Civil War, soldiers' widows had to prove they were legally married to get a pension. So sometimes the pension file documents a valid common-law marriage (which was of course legally the same as a civil marriage). But what if the pension file documents that the couple thought of themselves as married, but the Pension Office decided they didn't meet the legal criteria for a valid common-law marriage? Or the Pension Office decide they did meet the legal criteria for a valid common-law marriage but they themselves didn't think of themselves as married? (I know of a case like that. The husband (?) said he *wanted* to be married, but they weren't. But the pension office said they were and jailed the woman for pension fraud, since they said she had remarried and wasn't eligible for a pension any longer, even though she continued to collect one.)

No binary system (or even a system with more than two options) is going to capture the complex realities of people's relationships & the multiplicity of legal systems. Just document it in the biography.

Answer 2

In Germany, civil registry offices were successively introduced from 1870 onwards (Prussia in 1874), which were responsible for keeping civil registers. Once these existed, the church registers were no longer legally binding. This also meant that marriages took place before the registry office; the churches' view of the validity of a marriage was thus irrelevant.
For the former countries of the dual monarchy of Austria and its successor states, the situation is somewhat more complicated. From 1870, the registry offices were initially only responsible for persons who did not belong to any religious community, from 1895 they were introduced in Burgenland, and for the rest of Austria they became binding from 1939, although marriages had to be performed before a registrar as early as 1938.

Comments

Thanks Dieter, that was the info I had for the former Austro-Hungarian Empire. It happen that as far as I have researched all the branches in my tree from my great-grandparents and back, come from the Habsburg dominions - Bohemia, Carinthia, Northern Italy and Galicia, so I had to do a bit of research about that, including the religious environment in the 1700' and 1800' so I knew in which books to look for them - the Carinthia branch jumped back and forth from lutheranism to catholicism according with the times, others converted from judaism to cristianity, etc.