*First published on the University of Glasgow School of Law Blog on 18 December 2020*
Picture: David Allan, The Black Stool (The Stool of Repentance), 1795. National Galleries of Scotland, Accession number: D 4373. Source: https://www.nationalgalleries.org/art-and-artists/8323/black-stool-stool-repentance. Here we can see a young mother weeping while cradling her new-born infant, while her own mother furiously glares at the alleged father of the child. The young bachelor is being publicly reprimanded by an elder of the kirk session, while his own parents hang their heads in shame beneath him.
Cohabitation in Scotland: Lessons from history
Cohabitation, in very broad terms, can be defined as an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. Throughout history, couples cohabited, rather than married, for a variety of reasons, often due to existing impediments to marriage or lack of resources to fund the costs of a wedding ceremony. Today, many couples in Scotland choose to cohabit to test their compatibility before they commit to marriage. For others, the decision to cohabit is a lifelong choice as the social capital of marriage has waned to a simple representation of commitment (Kok and Leinarte 2015: 508). With short-term and life-long cohabitation on the rise, nearly 18% of families in Scotland today are headed by a cohabiting couple (ONS 2020). As more and more people opt out of marriage in favour of cohabitation, how has the Scottish legal system grappled with the regulation of such private relationships? This essay shows that the legal regulation of cohabitation in Scotland is, in fact, a historical issue dating back to the reform of marriage law in the early modern period. It traces the long history of cohabitation in Scotland from the early modern period to the present day and investigates the changing effects of cohabitation on the property rights of women throughout history. In providing this crucial background, it situates ongoing debates surrounding the reform of cohabitation law in Scotland in historical perspective, and explains why this debate presents as a feminist issue.
Cohabitation and marriage: What’s the difference?
Cohabitation in Scotland has a very long history which is intimately tied to the history of marriage and the regulation of marriage. After the Scottish Reformation of 1560, issues relating to marriage fell under spiritual and secular jurisdictions. In early modern Scotland, parental consent was not strictly necessary to conduct a valid marriage. Marriage was made by the free consent of two marrying parties, provided they were of age (12 for a girl, 14 for a boy), not already married, and not within the prohibited degrees of kinship (blood relatives) or affinity (in-laws). Legal writers of the time – such as Sir Thomas Craig in his Jus feudale (c.1606) – tended to agree, however, that a father could reasonably disinherit his son if he married without seeking prior permission. While parental consent was not required, it was encouraged.
At the apex of the hierarchy of marriages were those that were conducted in a ‘regular’ manner. A regular marriage – according to church, law and state – constituted a public proclamation or the reading of the banns (the promise to marry) on three consecutive Sundays in the parish church, followed shortly after with a ceremony presided by a minister in front of reputable (male) witnesses. Many young couples who followed this path to marriage also wrote an antenuptial marriage contract, which specified the property rights of both parties within the marriage and upon its eventual conclusion at the death of either spouse. Marriages conducted before the congregation and community offered immediate social status and legal rights to spouses, as well as any children born as a result of the union.
Yet, as consent alone was the main concern in Scots law in terms of establishing a binding marriage, other forms of marriage – known as ‘irregular’, ‘disorderly’ or ‘clandestine’ marriages – were considered valid. Irregular marriages were established by the act of giving present consent (marriage de presenti) or the promise of marriage followed by sexual intercourse (promise subsequente copula). Marriage by cohabitation with habit and repute was also, on many occasions, understood as a legitimate form of marriage, though subject to significant legal scrutiny. Where a man and woman lived together, treated each other as husband and wife, and were ‘repute and haldin’ by their neighbours and kingroup as a married couple, the law upheld their marriage and the legal benefits that it entailed (Barclay 2019: 174-176). For instance, a 1503 act concerning wives’ terces entitled women who were ‘repute and haldin’ by the community as lawful wives to claim the right of terce (a customary share of their husband’s land upon widowhood), till the contrary be proved. While it remains difficult to assess the frequency of cohabitation in Scotland in the past, historians Leah Leneman and Rosalind Mitchison estimated that during the eighteenth century in Troqueer in southwest Scotland, irregular marriages made up at least a third of all marriages in the parish (Leneman and Mitchison 1989: 79-103).
Marriage by cohabitation and repute was understood as a legitimate – albeit irregular – form of marriage in Scotland until 2006, when it was finally relegated to the history books. At the same time, the 2006 Family Law (Scotland) Act introduced new rights defining the legal position of a cohabitant when their cohabitating relationship ended following separation or death of either party. Section 25(1) of the Act defines a ‘cohabitant’ as either member of a couple consisting of a) a man and woman who are (or were) living together as if they were husband and wife; or b) two persons of the same sex who are (or were) living together as if they were civil partners. Although section 25 still includes elements (a) and (b), since the Marriage and Civill Partnership (Scotland) Act 2014, (b) is treated as having been deleted. In other words, both same sex and opposite sex cohabitation in Scotland is defined in relation to marriage. But what exactly does it mean to live as a married couple?
This narrow definition of ‘cohabitant’ has been criticised in recent years by family law experts and feminist academics (Mair and McCarthy 2016). The Scottish feminist policy organisation Engender recently criticised the definition of cohabitants in the Act as ‘outdated and increasingly open to conflict, given the evolving and increasingly individualised ways in which married couples define their relationship’ (Engender 2020). In the early modern period, women were expected to conform to strictly gendered behaviours surrounding their position and role within the family in order to acquire the legal and social status of ‘wife’. Antiquated notions of gender roles within relationships and families continue to affect the rights, status and progression of women in Scotland today. Even with women’s greater participation in the workforce, the division of paid and unpaid work carried out within the household remains highly gendered, with women making most of the unpaid domestic contributions and bearing the weight of caring responsibilities (Garland 2015: 311). The presumption that we collectively share a notion of what it means to live as ‘husband and wife’ in modern day Scotland can, in fact, be traced to conversations of what it meant to be married in the early modern period.
Regulating marriage and intimate relationships in the past
Unmarried cohabitation is often seen by many as a modern phenomenon, but in fact it has long historical precedents in Scotland. The regulation of marriage and intimate relationships has been identified as a central part of the Kirk’s remit following the Scottish Reformation of 1560. Much of the business of the kirk session, the lowest in the Presbyterian hierarchy of church courts, involved sanctioning those who failed to abide by church discipline. Illicit sexual intimacy between opposite sex couples – ranging from fornication (sex outside of marriage) to adultery (sex with another while married) – was subject to church discipline in the kirk sessions. Women and men who had sex outside of marriage – often discovered after a woman had given birth to a child outside of wedlock – were prosecuted as ‘fornicators’ by the kirk sessions, and were expected to pay a fine and perform public penance before the congregation. Women and men who committed adultery were also subject to church discipline, with repeat offenders ultimately excommunicated or even banished from the parish. Sex and procreation within a lawful marriage between a man and a woman was viewed – by the Kirk and by society in general – as the only legitimate site for intimate expression and reproduction.
As well as policing illicit sexual behaviour, kirk elders investigated and questioned couples whose claim to marriage was tenuous or, in many cases, did not cohere with church requirements. Irregular marriage did not conform to church and state regulations and was thus viewed as legally and morally controversial. A 1661 act against clandestine and unlawful marriages stated that couples who married in a clandestine way were to be imprisoned for three months and fined relative to their rank and status, ranging from 100 merks ‘for each person of inferior quality’ to £1,000 Scots for noblemen. Yet, despite being subject to state regulation and church discipline, a clandestine marriage was still legally valid. The kirk sessions faced the arduous task of distinguishing cases of sexual non-conformity (i.e. fornication or adultery) from cases of marital non-conformity (i.e. irregular marriage by promise or marriage by cohabitation), as the two could potentially overlap. Local authorities feared that irregular marriage could be (and indeed often was) an attempt to cover up fornication which had led to pregnancy outside of wedlock (Leneman and Mitchison 1993: 846; Barclay 2019: 165). In June 1577, Thomas Bishop confessed his ‘cohabitation and carnal deal’ with Violat Dog before Perth kirk session, and in doing so promised to pay 40 shillings Scots to the poor and complete the bond of matrimony with Violat within 15 days. Yet, according to the parish registers, Thomas and Violat had already married three months previous in March. The couple may have admitted to cohabiting prior to marriage before the kirk session as Violat was visibly pregnant much too soon after their official ceremony.
The fear that a married person might cohabit with a person other than their spouse was crucial to the regulation of marriage and intimate relationships. Those couples who cohabited while already married to another were treated severely by church and secular courts as they were committing the sin of adultery or, in some cases, bigamy. In St Andrews burgh (town) court in 1600, Elizabeth Fallins and George Ochiltrie were permanently banished from the city for their ‘wyld and abominable lyf in cohabiting togither’ for many years. The issue here was not that Elizabeth and George were simply living together as unmarried persons, however. The town bailies alleged that Elizabeth was ‘alreadie mareit to ane uther man’ and that she had not secured a divorce before Edinburgh’s commissary court, which held jurisdiction over matters relating to matrimony. The town bailies even publicly reprimanded and fined the man providing shelter to the cohabiting couple, perhaps as a warning to others who opened their households to suspect individuals. Those unmarried couples who quietly cohabited together without raising the attention of the kirk or their community remained largely unobserved by local authorities and are therefore largely absent from the historical record.
Living as ‘husband and wife’: Quantifying claims
A woman’s decision to either marry or cohabit with a live-in partner had – and still does to this day – very real implications for her access to property. The institution of marriage, while restricting women’s property rights and legal status within marriage during the early modern period, clearly provided women with significant advantages to be exploited at law. Antenuptial marriage contracts consistently note that the man was ‘takeand the burden upon him’ for his future wife. Husbands were also expected to provide their wives with clothing and aliment (care provision) relative to their rank and status and could find themselves before the law if they refused to adequately do so during marriage. Husbands were responsible for their wives’ debts, including those conducted by them as single women before marriage. Upon widowhood, women held concrete rights to their marital property, including one-third of their husbands’ moveable estate – which increased to one-half if no children were born of their marriage – as well as liferent rights to land (both terce and jointly-owned land). Divorce was permissible in Scotland on the grounds of adultery from 1560 and on the grounds of desertion from 1573. If a wife successfully divorced her husband on the grounds of adultery or desertion, she maintained legal right to all her conventional provisions as if he were dead and reclaimed ownership of all property gifted to her at and since the marriage. It seems that for a cohabiting woman to reap the legal benefits afforded to a wife in early modern Scotland, she ultimately had to prove that she was ‘repute and haldin’ by the community as married.
But how could an early modern woman prove before the law that she and her partner lived ‘as man and wife’, and that their cohabitation was an irregular form of marriage? Women in cohabiting relationships usually appeared before the courts when legal action was triggered as a result of their radically uncertain marital status, often following abandonment. In 1699 Mary Lyon alleged before the Court of Session – Scotland’s highest civil court – that her live-in partner James Gordon, a widower, had wrongfully seized her property and unceremoniously turned her away from their household. While she admitted to cohabiting with James for several months, caring for his children and sharing his bed, she alleged that James had promised marriage ‘by a writ under his hand’, and that after living ‘as man and wife’ James had wrongfully seized her property and turned her out of their home. As Mary had provided evidence that her partner James had promised marriage but later reneged on his promise, and that the community had ‘repute and haldin them as man and wife’, the Lords ordered James to pay Mary 200 merks yearly in aliment (care provision). Whilst they stated that James deserved to be punished for ‘abusing her so’, they added that ‘women who prostitute themselves are not to be encouraged nor rewarded’, explicitly admonishing those women who lived with a partner before legitimizing their marriage before the church and state. In a similar case brought before the Court of Session in 1710, Anna Cameron, while heavily pregnant, raised a summons of aliment against her partner John Innes for £50 Sterling after John abandoned her and their children. Anna asserted that while she was irregularly married to John ‘by an Episcopal minister, and without proclamation’, she could prove that they had cohabited ‘as man and wife’ for more than three years. Uneasy with Anna’s precarious marital status, however, the Lords instructed her to prove that her cohabiting relationship was an irregular marriage before the Commissaries in Edinburgh. Edinburgh’s commissary court held exclusive jurisdiction in cases of a strictly consistorial nature, such as marriage, divorce, separation and legitimacy. Women who claimed to be part of a cohabiting union were expected to prove before the commissaries that their conjugal union was an irregular form of marriage before the Court of Session could decide on whether or not they were due aliment. Amongst legal thinkers, the controversy arose over the issue of how to differentiate cohabitation, as a form of irregular marriage, from illicit sexual or intimate relationships, such as fornication or concubinage (Leneman 1999: 672). Repeated references in legal writings to women ‘ensnaring’ young men into situations where they might be found married, whilst the men thought they were simply engaging in a casual relationship, highlights the sexual double standard underlying women’s behaviour and choice of partner in the past. In the past, cohabitation only gave women specific rights to property when it was recognised as a form of marriage.
As well as affecting the rights and status of women, cohabitation also impacted on the property rights of any children born from the relationship. The children of cohabiting couples attempted to establish their legitimate family status before the law in a bid to secure inheritance rights in the past. In 1711, Lydia Forbes, the daughter of the recently deceased Captain Charles Forbes, initiated litigation before the Court of Session against her aunt – her father’s sister – Jean Forbes, alleging that, as the legitimate daughter and sole heir of her father Charles, she was entitled to assume control of his estate. Jean, on the other hand, asserted that her niece Lydia was, in fact, illegitimate and had no rights to her father’s estate. The issue at hand here centred on the legal status of her father’s and mother’s relationship. Lydia provided four male witnesses – her father’s landlord, a tailor, and two soldiers – to support her inheritance claim. The men told the court that they had seen Charles and Jean – Lydia’s father and mother – ‘converse together as man and wife’ for three or four years, and that they were ‘reputed by the neighbourhood as such.’ The men agreed that Charles had ‘owned the said Lydia for his daughter’ and that they had ‘never heard her called a bastard’. One of the men even asserted that Lydia’s mother would sit at the head of the table while nursing Lydia on her lap, and that they regularly heard Charles say that ‘he behoved to go to Jean to get a recruit of money’, which shows he allowed her the management of his purse. By citing evidence of her mother’s respected position within the household as a dexterous household mistress and caring mother, Lydia attempted to strengthen her legal claim to her father’s estate as his legitimate daughter.
In her response, however, Jean Forbes asserted that Lydia’s mother ‘was in the repute of a miss and whore to the Captain’ and that even after his death she did not put in a claim to terce or any share of his moveables ‘as a married woman certainly would have done.’ She also alleged that Charles had designated Lydia as his ‘natural daughter’ – i.e. illegitimate – in his will and testament, and produced a certificate to prove that Lydia’s mother was confined in the correctional house of Bridewell in London as a ‘bad woman.’ In her defence, Lydia asserted that her parents had cohabited as ‘man and wife’ and were ‘holden and reputed’ by the community as such – this alone, she argued, presumed a solemnisation of their marriage, without the necessity of further proof. While she admitted that her father Charles had disowned her mother later on in life, she asserted that ill-feeling could not dissolve the marriage bond, ‘for parties wearying of one another sets them not at liberty.’ Yet, as Jean submitted evidence that proved Charles had designated Lydia as illegitimate in his will and testament, the Lords decided to rule that the cohabitation, in this particular case, did not amount to a lawful marriage, and therefore granted full control to Jean Forbes as her brother’s next of kin. Lydia, as a result of her mother’s tenuous claim to marriage, was ultimately unsuccessful in securing rights to her father’s estate.
While it is impossible to attempt to recover empirical ‘truth’ from stylised legal records, it is worthy to focus on the manner of the descriptions contained within them and unpick the gendered behaviours that cohabiting women emphasised in their legal pleadings. Women who cohabited with live-in partners without completing a regular marriage before the Kirk stressed that they had adhered to behaviours that were traditionally performed by wives, including caring for children, sharing a marital bed, and managing the household economy. When the relationship irrevocably broke down, cohabiting women argued that their partners had withdrawn the promise of marriage, through no fault of their own. Proving that they were ‘repute and haldin’ by the community as irregularly married in order to receive some form of financial benefit before the law remained at the forefront of women’s legal pleadings.
In the past, women clearly struggled to gain some form of financial benefit following the breakdown of a relationship that was not legitimised before the church and state. Women today continue to struggle to secure property rights following the breakdown of a cohabiting union. When a couple decides to divorce in Scotland, the Family Law (Scotland) Act 1985 ensures that assets acquired during marriage are generally shared equally, and disadvantages and advantages can be accounted for, at least financially. If a cohabiting couple separate, the woman is left with much less certain financial protection than that afforded to divorcing spouses, despite the fact that the relationship is functionally identical to many marriages. Eilidh Dickson, Engender’s Policy and Parliamentary Manager, has recently asserted that ‘[w]hen opposite sex cohabitants separate, they face the same gendered realities as married couples – men leave largely with their earning potential intact, while women have experienced a motherhood penalty, gaps in work, and remain responsible – sometimes even more so – for the care of children’ (Dickson 2020). The law currently assumes that cohabiting couples have made a conscious decision to avoid the legal regulation of the state and therefore avoid financial obligations to one another. This can lead to significant injustices for women and children, particularly in cases where a mother has given up or reduced her work to raise a family.
The Scottish Law Commission recently reported on the lack of public awareness and possible misconceptions of the rights of cohabitants in Scotland and across the rest of Britain today (SLC 2020). There is considerable confusion amongst the Scottish public concerning the legal status of cohabitants, with a majority (57%) reporting the belief that cohabiting couples have a ‘common law marriage’ that gives them the same rights as married persons. Similarly, a significant number (35%) of those questioned inaccurately believed that a woman who had cohabited with her partner for more than ten years would have the same rights as a married woman in relation to property on the death of her partner. The persistent myth that a couple would become common-law married by virtue of performing certain behaviours rather than as the result of acquiring a status, and would then acquire the bundle of rights and duties of marriage, remains deeply ingrained in national consciousness (Chambers 2017: 150-151).
Women often only become aware of their limited rights within cohabiting partnerships when the relationship abruptly ends. For both opposite and same sex cohabitating couples to gain some form of financial provision following the breakdown of their relationship, they are required to prove that they had lived together in a relationship that resembles a marriage. Further legislative reforms to the law of cohabitation in Scotland must take into consideration the risks in defining cohabitating relationships as comparable, yet unequal, to marriage, and recognise the adverse effects on women’s rights within the long history of this struggle. Drastically amending the reference to living together as ‘husband and wife’ in Section 25 of the 2006 Family Law (Scotland) Act would represent a step away from privileging marriage as the default mode for adult life, and remove any confusion to the persistent myth of the existence of ‘common law marriage’ in modern day Scotland.
Barclay, Katie. ‘Marriage, Sex and the Church of Scotland: Exploring Non-Conformity Amongst the Lower Orders’, Journal of Religious History 43:2 (2019), 163-179.
Chambers, Clare. Against Marriage: An Egalitarian Defence of the Marriage-Free State (Oxford 2017).
Chen, Carry. ‘The Couple on No-one’s Lips: Allowing Perfect Imperfections in Scottish Cohabitations’, published 2013.
Dickson, Eilidh, ‘Knowing Me; Knowing You: Is this the best we can do for cohabiting couples?’ Engender Blog, published 24 September 2020. Source: https://www.engender.org.uk/news/blog/knowing-me-knowing-you-is-this-the-best-we-can-do-for-cohabiting-couples/ Accessed 1 December 2020.
Engender response to the Scottish Law Commission: Aspects of Family Law Discussion Paper on Cohabitation, August 2020. Source: https://www.engender.org.uk/content/publications/Engender-consulation-response-Scottish-Law-Commission-Aspects-of-Family-Law-Cohabitation.pdf Accessed 1 December 2020.
Garland, Fae. ‘Gender Imbalances, Economic Vulnerability and Cohabitation: Evaluating the Gendered Impact of Section 28 of the Family Law (Scotland) Act 2006’, The Edinburgh Law Review 19:3 (2015), 311-332.
Kok, Jan and Leinarte, Dalia. ‘Cohabitation in Europe: a revenge of history?’, History of the Family 20:4 (2015), 489-514.
Leneman, Leah. ‘Wives and Mistresses in Eighteenth-Century Scotland’, Women’s History Review, 8:4 (1999), 671-692.
Leneman, Leah and Mitchison, Rosalind. ‘Clandestine Marriage in the Scottish Cities, 1660-1780’, Journal of Social History, 26:4 (Summer 1993), 845-861.
Leneman, Leah and Mitchison, Rosalind. Sexuality and Social Control: Scotland 1660-1780 (Oxford 1989).
Mair, Jane and McCarthy, Frankie. ‘Justice Committee, Family Law (Scotland) Act 2006: Written submission from Professor Jane Mair and Dr Frankie McCarthy, University of Glasgow’, 9 February 2016. Accessed 22 November 2020.
Scottish Law Commission, ‘Aspects of Family Law: Discussion Paper on Cohabitation’, Discussion paper no. 170. February 2020.
Source:https://www.scotlawcom.gov.uk/files/1115/8270/8061/Aspects_of_Family_Law_-_Discussion_Paper_on_Cohabitation_DP_No_170.pdf Accessed 23 November 2020.
The Scottish Feminist Judgments Project (SFJP) led by Sharon Cowan (University of Edinburgh), Chloë Kennedy (University of Edinburgh) and Vanessa Munro (University of Warwick). See Coyle vs Coyle 2004. Source: https://www.sfjp.law.ed.ac.uk/ Accessed 1 December 2020.