'From Fornicators to Family: Cohabitants and the Law, 1600-2010'

Abstract

There is a widespread assumption among scholars and other commentators that the modern popularity of cohabitation is nothing new, but simply a reversion to older trends. Yet this is based on fundamental misunderstandings of the language used to describe relationships outside marriage and their treatment by the law. In the eighteenth century – and well into the twentieth – the term ‘cohabitation’ did not necessarily mean that the parties were sharing a home. Nor was there any concept of ‘common-law marriage’: rather than being treated as married, couples who were cohabiting risked punishment for fornication. This paper traces the way in which the law has moved from treating cohabitants as ‘fornicators’ to accepting them as ‘family’. It provides new evidence on the extent of cohabitation in earlier centuries, identifies linguistic faux amis, and evaluates the relationship between law and practice. While the increase in cohabitation may seem to have occurred without legal encouragement, an analysis of women’s magazines and newspapers suggests that the way in which the law was misunderstood was more important than what it actually was.

Keywords: cohabitation, common-law marriage, illegitimacy, fornication, sin

JEL Classification: K10