Questions Regarding:

Common Law MarriageServants' News received this letter raising several good questions regarding the December, 1996 issue article, "Marriage & Divorce".

January 23, 1997

Norm,

I read your article discussing why we should return to marriage without state license, since no biblical mandate can be found to support this practice. Well,,,, I could write a book on this, but I want to get this letter faxed today.

1) Since our society is set up giving legal approval, and often nonapproval, to "common law" type marriages, in instances such as medical, social security, military benefits, pensions etc., it would be a disservice to one's spouse (which usually disadvantages the woman) to even suggest today that a woman be put in such a circumstance. For example, a friend of mine has lived with a man for the past 23 years. He had been in the military, and was drawing a hefty monetary benefit due to having a service-connected injury. He just died January 3, 1997. Since the couple was not legally married, and our military services do not accept common law marriages as legal marriages, guess how much of that military pension my friend is going to receive? You guessed it! A goose egg $00000. Since the man is biblically admonished to provide for his wife, in many cases due to the society in which we live, if there is no legal marriage, there will be no provision in case of his demise. When she could have been provided for by his pension, she will now have to work indefinitely to support herself, which will be at "minimum wage." Would you want to leave a wife in this position? (If those who really feel this way are really serious, then they should get a divorce, and re-commit to one another without the civil contract!)

My question is: Why should a "believer" opt out of providing for his wife in his circumstances, wherein the heathen neighbor who is legally married, under the same conditions as related above, would leave his wife well provided for receiving a $2500.00+ pension per month. Paul gives us an example how we can use the law to our advantage, in which case a "legal" marriage would do, in the conditions listed above.

Response: No, The November 1996 Servants' News marriage article was not suggesting that men have no civil responsibility to their wives. The article was suggesting that individuals write their own marriage agreement rather than relying on the State to bind (and perhaps later to unbind) their marriage.

There are certainly many legal issues to look into, such as property ownership, survivor's benefits and child custody. The simplest thing for a couple to do is to obtain a state marriage license in addition to their agreement. However, states do not always do a very fair job of administering these things either. Also, laws vary greatly from state to state.

We have not surveyed the laws of every state, but we have heard of a few cases where individuals have used a contract for marriage and the courts have considered it a legal marriage—the same as if a license were obtained. There are other ways to achieve a "common law marriage" than just living together for a length of time. Some of these methods will give a wife as good or even better protection if her husband divorces her. We feel the best solution is for the couple to think out what should happen if they divorce. The courts generally uphold prenuptial (pre-marriage) agreements if they determine that both parties understood what they were signing. A marriage contract can be legally recorded and serve as a prenuptial agreement. If a woman or man finds their prospective mate unwilling to make written commitments about financial matters before marriage, they really need to think about whether they want to marry this person.

One of the biggest problems marriages face today is the lack of planning for economic and legal realities on the part of both husbands and wives. We do not have the time or experience to investigate all of the marriage, inheritance, pension, and other related laws in all 50 states. But people who are getting married should know something about the laws that affect them.

Letter continues:

2). While we are revisiting these marriage laws, let's say that the man "pay" for his bride with hard cash or 7 years of labor (adding that amount up, would total to quite a sum!!)

Response: Actually, paying a bride price is not a bad idea, though it cannot be done today unless both husband and wife agree to it. Jacob worked seven years each for two wives, but that seems rather high. Fifty shekels seems to be a more common bride price (Deut 22:29). There are a number of advantages to the bride-price system.

a) In the Old Testament, women essentially became part of their husband's family—they were counted as part of the husband's tribe. Sons were responsible for taking care of their elderly parents. If a couple had mostly daughters, receiving the bride-price for each one would help take care of them in their later years.

b) Abride would be assured that her husband was capable of supporting a family. If the man earns enough to save money for the bride price, then he should be earning enough to support a family after the marriage. Quick marriages of financially irresponsible men would be eliminated.

c) Women would be encouraged to stay virgins because their families would get little or no bride price if they were not.

d) Men would be highly encouraged to think about the long-time aspects of marriage rather than just the bed-time aspects of marriage. Most men will not spend a large amount of money on something that they are not very serious about.

Letter continues:

3). If you had a daughter that is raped, let's not go to the civil authorities (remember, they didn't do that in the Bible), let's just make him marry her or pay a fine! This would also mean, that if a man raped a widow or divorced woman, (this could be an older widow in the church or a divorced sister), there would be no civil recourse because he had not violated any male's rights, ( i.e., she was not under the authority of any man not being a wife, so the union was not adulterous, and she was not a virgin!, just recently ran across this information in a book I'm reading on Jewish law from a local synagogue, there was no legal penalty for rape of women of this status.)

Response: This is a case where man's laws sound better than the Eternal's laws until we look at what actually happens. Are most rapists today punished and their victims compensated? No. I have seen studies that estimate that less than 5% are. The vast majority of rape cases are never reported because the rapist knows the victim and will claim in court that she wanted to do it. If there are no witnesses, it is one person's word against the other. The woman is usually asked all sorts of embarrassing questions about exactly what happened and her personal sexual practices. Of the women that go through the trial experience, many remark that the trial was worse than the rape. If the courts change evidence rules to make it much easier for women, the number of false rape cases will get worse than than it is now.

The Eternal had the wisdom to see that it was not practical for men to try to sort out such cases in court. So he eliminated the need to determine whether it was a rape or a mutual act and he said the man should pay the bride price no matter what (Deut 22:29). If the man could not pay, he would be sold as a slave (Ex 22:3). The woman's father could determine whether or not a marriage would take place. The important lesson for women is that they should never be alone with a man who they do not completely trust.

It is also important to realize that the Eternal gave other laws that would stop violent rapists. If a man breaks into a house, a woman need not determine what his intentions are—even if he is only a thief, she can kill him and receive no punishment (Ex 22:2). If a man kidnaps a woman (makes her go where she does not want to) he should be put to death (Deut 24:7) If a man injures another through violence, he must pay for the loss of time and healing.

I am glad you brought up the case of Jewish law not protecting the rights of divorced women and widows. While there are many things that Believers can learn about the Law from the Jews, you have found a good case where Jewish interpretation is wrong. When the scriptures are silent on the issue, a judgment should be made. "Cursed is the one who perverts the justice due the stranger, the fatherless, and widow" (Deut 27:19). Also, "if there is a dispute between men, and they come to court, that the judges may judge them, and they justify the righteous and condemn the wicked, then it shall be, if the wicked man deserves to be beaten, that the judge will cause him to lie down and be beaten in his presence, according to his guilt, with a certain number of blows" (Deut 25:1-2).

Because the law says nothing specifically on this issue, does not mean that nothing should be done. If the divorced or widowed woman were living with another relative, then the man should probably be dealt with as if she were a daughter. If the rape occurred in an Inn that she ran by herself and she was known to work as a prostitute, then indeed nothing might be done. There are other possible cases, but that would be the job of the judges to determine. The Eternal's laws cover the broad majority of cases and leave the less-frequent cases to hopefully sound judgment.

Letter continues:

I'm sure you are not willing to make those concessions to crimes such as those listed above, but you would fully exercise your rights under today's civil law, so don't so quickly "write off" the benefits for the spouses involved in a "civil marriage", over those who are not. If our society, and government would recognize them as equally valid, that would solve one of the problems.

The other problem, is that we live in a wide society, contrasted to the biblical ones. The individual's conduct was regulated by the community and synagogue, and laws were enacted by the rabbis to punish men for certain types of conduct towards their wives, for which punishment for certain offenses were meted out in the synagogue. They were also inextricably tied to their plots of land which had been handed down throughout their generations, as their source of livelihood. If you marry someone today, who defects from the faith, and skips town (I can give you examples of individuals who have contracted these "in God's eyes marriages", and left their partner "high and dry"), the partner is left with no recourse, in cases where monetary or other benefits are due such as medical as well as private or governmental pensions, even if the person has been married 1-2-3-decades! Men in those days didn't "skip" town, leaving their land and livelihood, and their wives fending for themselves as often happens today. And one can't assume that even though a potential spouse may have good intentions today, that they won't change in the future. In the past, an Israelite had the disapproval of society, and religious authorities, to face, as a deterrent for misconduct towards his wife, which does not occur today.

Of course, I'm not valuing the civil marriage over the actual covenant made in the presence of the Father with the "God-given" spouse, but until our society recognizes common law marriages as equal to "civil" marriages, it is unwise to suggest that this should be practiced today, and I believe a great disservice to the readership has been done and will be done, if the pros and cons of this issue are not both published.

Enjoyed the article on the marriage contract. That would be like the modern day ketubah [Hebrew name for marriage contract]. In that document, it also listed the obligations of one to another, and also set an exorbitant price the husband had to pay the wife if he ever wanted a divorce, as well as stipulations (if the woman so choose), that the man could not take another wife!!

Gotta run! Would like your comments.

In Messiah,

—Marsha Basner

Response: We are sorry for the misunderstanding on common law marriages. We realize that, to most people, "common law" means simply living together with no legal arrangement. We definitely believe husbands and wives should do what is necessary to take care of each other in case one should die or give up on the marriage.

—Norman S. Edwards


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