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Cohabiting as husband and wife in nineteenth-century England

This is a book-length study of cohabitation in nineteenth-century England, based on research into the lives of hundreds of couples. ‘Common-law’ marriages did not have any legal basis, so the Victorian courts had to wrestle with unions that resembled marriage in every way, yet did not meet its most basic requirements. The majority of those who lived in irregular unions did so because they could not marry legally. Others, though, chose not to marry, from indifference, from class differences, or because they dissented from marriage for philosophical reasons. This book looks at each motivation in turn, highlighting class, gender and generational differences, as well as the reactions of wider kin and community. It shows how these couples slowly widened the definition of legal marriage, preparing the way for the more substantial changes of the twentieth century.

Children born even one day before their parents' marriage remained illegitimate for life, while those born one day after a wedding had the full benefits of legitimacy. This book explores the legal and social consequences of growing up illegitimate in England and Wales. It concentrates on the late-Victorian period and the early twentieth century, and takes the child's point of view rather than that of the mother or of 'child-saving' groups. An extended analysis of criminal and civil cases involving illegitimacy, including less-studied aspects such as affiliation suits, the poor law and war pensions is presented. In the twentieth century, illegitimate children gained more family, and adoption became an option after 1926. Women had choices when faced with unwanted children, and many chose to suffer in the workhouse rather than harm their babies. Though the criminal courts were harder on non-maternal defendants, mothers were collusive in many crimes. The two legal processes illegitimate children were most likely to inspire were often entwined - affiliation proceedings and the poor law. Problems with the bastardy laws abounded, legislative successes were few in the nineteenth century. Fostering encouraged child circulation because of its temporary nature. The effects of social discrimination changed when children went to their jobs, dividing those with family from those without. Differences of class and gender also influenced the scope of illegitimacy's reach. Placing the stigma on Victorian children was simple, but ridding the law of the term was painfully slow, and abolishing its power even slower.

The period of the Civil Wars saw an outpouring of criticism for the church and traditional marriage practices. William Godwin and Mary Wollstonecraft's own relationships showed the risks of marital experimentation without societal changes. Wollstonecraft's plight showed the dangers of cohabitation for women. Their relationship was different, both because of Wollstonecraft's prior experience and because Godwin was more considerate. The Godwin/Mary Shelley elopement defied the ‘monopoly’ of marriage. The majority of free unions in the Romantic period had little to do with theorising against marriage. The Owenite movement made a strong argument against traditional marriage. Owenites challenged the biblical basis of marriage and highlighted the problems with England's marriage laws. The writings of Radical Unitarians influenced the women's movement that began in the 1850s. The number of men and women willing to support new family forms showed strong dissent from the English laws and church.

in Living in sin

The working-class movement turned to trade unionism and its version of domesticity, and feminists concentrated on legal equality. The radical couples unions were under greater pressure because they tried to make a point with their lives. It is noted that the rationalists of the early nineteenth century had a long legacy of marital and gender reforms, tempered by the strict morality of the mid-Victorian years. Most feminists urged that women concentrate on marriage reforms rather than trying experiments, and those who discussed sexuality emphasised male aggression rather than women's freedom. The paradoxical influence of socialism and feminism is then addressed. Anarchism critiqued the power of the state as well as capitalism. When partners did practice sexual freedom, their relationships rarely survived. The freedom of free unions was contingent on a number of factors—class, gender, generation, and, most importantly, the success of the relationship.

in Living in sin
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Cohabitees resembled married couples and emulated aspects of marriage as much as possible. Women tended to see irregular unions as ‘marriages’ whatever their legal status, while some men could see themselves as ‘free’ even in legal marriages. Stable cohabitation and marriage shared many traits and sometimes reinforced class and gender norms. All the same, cohabitees could not emulate all aspects of marriage; even those most firmly emotionally ‘married’ could not change the legal and social circumstances. Men gained freedom from cohabitation, but in doing so they forfeited some of their legal authority. Cohabitation had legal, economic, and emotional consequences. Marriage has survived the onslaughts of mass cohabitation and no-fault divorce. The legal changes of the twentieth century have ended the heavy-handed adjudication of divorce and marriage. The survival of marriage into the twenty-first century shows that the institution has weathered the changes in its definition and roles.

in Living in sin
The demimonde and the very poor

This chapter discusses the very poor, the ‘criminal’ classes, and the demimonde, with the most emphasis on the first, since the second and third groups have received more historical attention. Most of the poor married legally but a significant minority did not. Marriage conferred a legal obligation for the husband to support his wife, but a cohabitee had no such right. Age, race, ethnicity, family and occupation are the reasons why couples prefer cohabitation. The resemblance of stable cohabitation to marriage comes out most clearly in the violence cases. It is noted that the most of the poor who lived in cohabiting unions lived among and interacted with their married neighbours. Voluntary cohabitees were more often pressured to marry by authorities and their families, since they had no impediments to marriage. Women accepted free unions, but seldom as a first choice.

in Living in sin

This chapter concentrates on cross-class couples. Cross-class unions combined exploitative and advantageous elements for men and women, both defying and deferring to class and gender expectations. The participants in most cross-class cohabitation expected them to be temporary. These cohabitees broke into two groups: professional mistresses and poor women who preferred to marry, but chose to live with better-off men rather than lose them. Professional mistresses earned a good living. Mistresses had prosperity in the short run, but little security; thus, they had to be both romantic and businesslike, an uneasy combination. Both partners' families were unenthusiastic about the relationships in cross-class unions. Cross-class cohabitees defied two conventions of Victorian life: they had sexual relations outside of their social strata and without marriage. Cross-class couples resembled those who could not marry, since many of the men did not believe they could reconcile their families to marriages with unsuitable women.

in Living in sin
Custody, inheritance, and taxation

Wilkie Collins's 1862 novel, No Name, encapsulates the contradictions in the English law of illegitimacy. Children born even one day before their parents' marriage remained illegitimate for life, while those born one day after a wedding had the full benefits of legitimacy. Many critics made Collins's point that the laws of illegitimacy visited the sins of the parents on the children in an egregious way. The rules of provision, custody, and inheritance rarely encompassed the complexity of people's lives, leading to differing decisions on the local and national levels. The English law of marriage followed canon law in its acceptance of clandestine and irregular unions in the eighteenth century. The Legitimacy Declaration Act (LDA) of 1858 was a result of Shedden v. Patrick; it gave petitioners a way to avoid the decades of litigation that had beset the Shedden/Patrick family.

in Illegitimacy in English law and society,1860–1930
Maternal crimes and illegitimacy

In the early modern period, the criminal law was strict with mothers of illegitimate children. An infamous statute in 1624 presumed any unwed woman who tried to cover up the death of a newborn illegitimate child as guilty of murder. Mothers were overwhelmingly young and employed in poorly-paid work, mostly domestic labour. The large number of children killed at one or two months indicated the high percentage born in workhouse infirmaries, the last resort for women in labour. Victorian women found guilty but insane were detained 'at Her Majesty's pleasure', which meant anywhere from a year to a lifetime in an asylum. In the twentieth century, judges occasionally released them to the care of their families, but the asylum was a more common destination. Women convicted of infanticides made up half of the female admissions in Perth's criminal lunatic wing in 1902.

in Illegitimacy in English law and society,1860–1930
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Non-maternal carers in the criminal courts

The prevalence of stepfathers showed the importance of blended families for the children, as did trials of wider kin and adopted/ foster parents. Fathers were much less likely to harm their illegitimate children than mothers. Some of men's motives for hurting their illegitimate children resembled those of mothers. The largest category was related to economic support. Many fathers resented having to pay for their children's care, but their poverty seldom generated much sympathy. Criminal courts insisted that men should support their children; poverty was no excuse for violence or neglect. A working-class man resented the expense of these children, but a lower-middle or middle-class man was more concerned about his reputation. An adulterous illegitimate child was not the kind of fatherhood that conferred high standing and could have serious economic consequences. Illegitimates, like orphans, were subject to movement between family members and non-related carers.

in Illegitimacy in English law and society,1860–1930