MDR: The history of how to get married

Now, having an understanding of the essence of marriage in the minds of Biblical writers, let’s look at how people got married in Biblical times.

When we read the Genesis accounts of how Isaac and Jacob were married, we see no ceremony at all. Rather, the man and woman simply chose to be married, with the consent of the bride’s father, as required by ancient custom, and they began to live together as husband and wife.

Much to the surprise of many, the Law of Moses says nothing about how to get married. Indeed, neither does the New Testament. The reason is that during Bible times the government and the church had no involvement in the marriage process. Couples generally became married by agreement to be married. Local customs might vary from time to time and place to place, but generally, if a couple agreed to be married, they were.

The Catholic Encyclopedia comments that among primitive cultures “the formation of the marriage union itself … was generally devoid of any formality whatever, beyond mere cohabitation.”[1]

While the New Testament speaks highly of marriage, nothing in the New Testament speaks of the church or its ministers as having authority to marry a couple. Rather, the church simply recognized as married those who were married under whatever the local practice was.

At some later point, the church (by then, the Roman Catholic Church) claimed the right to marry a couple as one of the seven sacraments.[2] Some Catholic writers went so far as to declare a marriage undertaken without the benefit of a priest’s blessing as void. This view was ultimately affirmed in the Council of Trent, as part of the Counter-Reformation.

Joseph Martos is the author of a highly regarded work on the sacraments called Doors to the Sacred, A Historical Introduction to Sacraments in the Catholic Church. In that work, he writes, “During the first three centuries of Christianity, churchmen had no legal say in the matter of marriages, divorces, and remarriages.” Furthermore, he wrote, “There was no liturgical ceremony for marriage as there was for baptism and the Eucharist.” It wasn’t until the year 400 or so, that Christians were bidden to seek an ecclesiastical blessing on their marriages. (It is interesting to note that the only ones obliged to do that were married bishops, married priests and married deacons.) As far as we know, the idea of marriage as a sacrament was first proposed by St. Augustine, the first and only patristic author to write extensively about sex and marriage. Even after Augustine, through the seventh century, “Christians could still get married in a purely secular ceremony.” Marriage was declared a sacrament for the first time by the Synod of Verona in 1184. The Church didn’t deem marriage definitely indissoluble until the Council of Florence in 1439. (Martos, pp. 409-434.) …

[T]he Council of Trent (1545-1563) … laid down rules and regulations along lines that would have been unrecognizable to members of the early Church, East or West. Since Trent, the [Catholic] Church has publicly proclaimed the indissolubility of marriage, a large body of law on marriage, and a correspondingly large legal apparatus to deal with it.[3]

The early Reformers, such as John Calvin and Martin Luther, challenged the church’s right to grant marriage, declaring that marriage is honored by the church but not given by the church — being a private agreement between husband and wife.[4]

We Americans are heirs to English law, which reflects both a Catholic and a Protestant view of marriage. Thus, a “common law” marriage is a marriage made by the process recognized by the English courts. Alabama is one of the 15 or so remaining states that still permit marrying under the common law.

In these states, a man and woman may marry merely by agreeing to be presently married (not just to marry in the future) and by giving some clear evidence of that intent — such as signing a credit card application or hotel register as husband and wife. No license, no blood test, no justice of the peace, and no preacher. Just agree to be married, evidence the agreement, and you’re married — just as legally married as if you were married by any other means.[5] This had been true in England for centuries..

Marriage by private agreement was common in England until 1753 and in Scotland for many years thereafter. In continental Europe, such marriages were recognized in the middle ages, but the practice was abolished in Catholic nations by the Council of Trent.[6]

While the ancient practice is marriage by private agreement, the Catholic Church, of course, enforced the exclusive right to grant marriages and divorces. As England moved back and forth between being a Catholic and a Protestant nation (King Henry VIII, “Bloody” Mary, Elizabeth I, etc.), the government took over the ecclesiastical courts — that is, the church’s courts.

Somewhere in this process, the government took on the power to grant marriages and divorces, but did not deny the churches the power to marry. After all, many English were not Catholics and some means of formally recognizing marriage was needed. While common law marriage was honored, the government certainly preferred a formal marriage by a church or government official, as this avoided uncertainty as to inheritance and divorce often occasioned by the difficulty of ascertaining whether a common law marriage had occurred.

And so England evolved a multiple system for marriage — marriage by church officials, marriage by government officials (typically judges), and marriage by private agreement (common law marriage). As the government took over the church (starting with Henry VIII), the church’s power to grant marriages and divorces became regulated by the government.

In the United States, most states follow the common law of England. Thus, in Alabama and every other state the only reason that a preacher has legal power to marry a couple is because the legislature has so decreed. There is nothing in the Bible — even the Law of Moses — that authorizes a preacher to marry a couple — it is purely a matter of local law. And it’s only in the law as a vestige of the Catholic Church’s doctrine that marriage is a sacrament available only through the church.

As modern governments replaced the role of the Catholic Church in Europe, the government also took on the power to marry couples. But in Bible times the power to marry was in the couple themselves. They needed no permission of the church or the government. Thus, the practice of many preachers of ending a wedding ceremony with “And now by the power vested in me by God and the State of Alabama, I now declare you husband and wife” is a vestige of Catholic sacramentalism. God does not vest preachers with the power to marry couples. God vested that power in the couple. The government gives that power to preachers.

In Biblical terms, we should say that marriage is a covenant between a man and a woman. As Malachi says,

(Mal 2:14) You ask, “Why?” It is because the LORD is acting as the witness between you and the wife of your youth, because you have broken faith with her, though she is your partner, the wife of your marriage covenant.

More precisely, in Biblical terms, marriage is a covenant between a man and woman to have the relationship that is described in Genesis 1 and 2.

Now for a discussion question: Suppose a couple lives in a state that doesn’t recognize common law marriage. Suppose further that they’ve lived together for 10 years and have three children. They think of themselves as married but the government does not recognize their marriage. Now suppose that the husband leaves to marry another woman. Has he sinned?

He’s been “living in sin” and thus is leaving a sinful relationship to enter into “holy matrimony” for the first time. And yet, everyone I’ve ever asked says he’s sinning — against his covenant with the woman he lives with. And if you say yes, then you understand that the covenant of marriage is based on the commitment of the spouses, not the decrees of the government.

[1] 9 John A. Ryan, Catholic Encyclopedia, “History of Marriage” (1910) http://www.newadvent.org/cathen/09693a.htm.

[2] A “sacrament” in Catholic theology is a practice or symbol whereby the church grants some of God’s grace to people. The seven sacraments are baptism, confirmation, the communion (Eucharist), penance, last rites (extreme unction), marriage, and orders (ordination). 13 D. J. Kennedy, Catholic Encyclopedia, “Sacraments” (1912) http://www.newadvent.org/cathen/13295a.htm.

[3] Remarriage in the Church: Pastoral Solutions: A statement by the board members of the Association for the Rights of Catholics in the Church, http://astro.ocis.temple.edu/~arcc/marriage.htm (1998, revised 1999).

[4] 9 Aug. Lehmkuhl, Catholic Encyclopedia, “Sacrament of Marriage” (1910) http://www.newadvent.org/cathen/09707a.htm.

[5] Tennessee has never allowed marriages at common law. Louisiana is not a common law state, and so does not recognize common law marriage. In a case well known to law students, a couple from Tennessee had cohabited for less than seven years. While traveling to New Orleans, they spent the night in Tuscaloosa, Alabama, signing the hotel register as husband and wife. The courts found that they were married — having met Alabama’s requirements while in Alabama.

[6] (1545-1563). Encyclopaedia Britannica, “common-law marriage” http://www.britannica.com/bcom/eb/article/7/0,5716,25377+1,00.html