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Essay on Pros and Cons of Common Law Marriage
By the dawn of the last decade of the nineteenth century, the majority of states recognized common law marriages, and the doctrine had received the support of prominent treatise writers of the day. (Reeve 306-16) Courts recognizing common law marriages grounded their opinions, first and foremost, on the premise that marriage is a civil contract.
This was a powerful argument at a time when the paradigm of contract exerted extraordinary influence in legal thought: "The sanctity of contract competed, perhaps on equal terms, with the notion of the sanctity of marriage."(Hartog 95) The Supreme Court thus invoked powerful forces when it declared authoritatively that "marriage is everywhere regarded as a civil contract. Statutes in many of the States, it is true, regulate the mode of entering into the contract, but they do not confer the right."
Since marriage was a contract, courts reasoned, persons should be able to form a marriage on their own without any formal officiation by a third party. The basis of marriage, like other contracts, was consent, not formality. As a Louisiana court wrote, "Marriage is regarded by our law in no other light than as a civil contract, highly favored, and depending essentially on the free consent of the parties capable by law of contracting." (Hartog 107) Similarly, Tapping Reeve observed in his influential treatise on domestic relations that "there is nothing in the nature of the marriage contract that is more sacred than that of other contracts.....
