Ancient laws didn’t come with definition sections.
When you see some of the lengthy, arbitrary and self-contradictory definitions in modern legal codes, this may at first seem like a feature rather than a bug, but it still leaves the modern reader of the Law of Moses struggling with certain ambiguities, not least the ones concerning marriage.
This was not a problem for the people who lived under the Law of Moses in ancient times. They understood the sociocultural environment in which the law was given well enough to obey God’s commands without the need for the endless paragraphs of legalese modern lawyers generate like spiderwebs.
The bad news is that understanding the background of the law wasn’t their problem; keeping it was.
A relevant question suggests itself: “Why on earth would you study marriage in the Law of Moses, Tom? Isn’t the first covenant obsolete, growing old and ready to vanish away? Wasn’t the law just a guardian until Christ came? Didn’t the early church agree not to impose it on the Gentile converts to Christianity?”
All this is true. Nevertheless, so long as we view Israel’s law as a series of insights into the character of God and the types of behavior he approves (devoutness, justice, generosity, honesty, loyalty, commitment, treating the needy with respect, etc.), we Christians can still get something useful out of it.
Marriage in the Old Testament
We must concede, however, that the Law of Moses has little to say either to us or to those who were under it concerning the formalization and recognition of marriage. Under that law, no priest and no judge was required to solemnize a marriage, and the laws that deal with it appear to assume that whatever arrangements had been made between the families of the two parties were perfectly adequate.
The law contains references to things like a “bride-price for virgins”, which was paid to the woman’s father, to wives given to slaves by their masters but who remained their masters’ property, and to a process of redemption by which a woman could get out of a union that wasn’t working. (The husband got his bride-price back to dissolve the marriage.) But these laws appear to be modifications or encodings of existing customs rather than preserving principles we might apply to modern, Christian marriage.
Moses also gave laws affirming the sanctity of marriage (“You shall not covet your neighbor’s wife”), but these do not tell us anything about how two people were supposed to get into that state in the first place. The taking of a bride for Isaac and the story of Ruth are all very nice, and give us a few more interesting tidbits about how ancient patriarchal societies arranged marriages and applied the law in the centuries after Moses, but they are not in any way authoritative for present day believers.
Marriage in the New Testament
When we come to the New Testament, we find the Lord Jesus applying principles to marriage derived not from Exodus, Leviticus or Deuteronomy, but from Genesis and the original man and wife, concerning the solemnization of whose marriage scripture says even less than the law. Jesus said a great deal more about ending marriage (or, properly speaking, NOT ending marriage) than he said about initiating it.
That leaves us with Paul and 1 Corinthians 7 as the definitive NT passage on the initiation of marriage, if I’m not missing out anything important elsewhere. Again, while the apostle affirms monogamy and the usefulness and sanctity of marriage and, like Jesus, rejects divorce, he too tells us nothing definitive about how Christians ought to solemnize the union between man and wife. There is also a relevant line in 1 Corinthians 6, where it appears the sex act itself is what initiates the one flesh union rather than any particular style of ceremony or the exchange of vows. Like Paul’s references to betrothal in chapter 7, this too has a very Old Testament flavor and looks nothing like the modern Western entry method into the venerable institution.
In short, then, in the Bible, marriage is a covenant of life-long partnership (implicit or explicit, non-verbal or verbal) between a man and a woman mediated through their families (though there is nothing binding about that last bit) and legitimized in the eyes of God at the moment of sexual consummation, provided neither party is disqualified from marrying for other reasons. Neither church nor state has any biblical part in the matter of a couple coming together, only a role to play in the matter of their coming apart in the event disagreements arise.
Common-Law Christians
That’s a nice little survey and all, but what I really want to get to is the question of how Christians should think about common-law marriage. Naturally, with so much of scripture open to interpretation on this matter, there are many different opinions. (If I use the term “legal marriage” or “legalized marriage” to contrast with it, it is not to imply common-law marriages are illegal. Rather, they are unformalized but culturally and legally accepted.)
For example, I heard a story last summer about a man and woman who had lived together for a number of years monogamously and unfrivolously. Under Canadian law, they were in a common-law marriage. Both came to know the Lord a few weeks apart and began attending church. A few months into this new state of affairs, the man opined to a Christian friend that he thought he was committing serial fornication, and felt concerned he was offending the Lord. He left the home until the marriage could be publicly “legitimized”.
This became a matter of conscience for him, and therefore it was necessary not to violate his conscience on that matter, because whatever is not of faith is sin. That much I understand. But I wondered if the man’s conscience was really responding to the words of scripture about what makes a marriage valid in the eyes of God, or if he was just reacting to the traditional, culturally-driven conclusions his new Christian friends read into the text. If the former, all well and good. If the latter, well, maybe a bit of immaturity and legalism that could have potentially gone horribly wrong if his common-law wife had taken his temporary exit the wrong way. Nobody who wasn’t close to the situation (and I wasn’t) was really in a position to know.
Common-Law Commonalities
The current Canadian laws concerning common-law relationships are interesting in that they have evolved over the years quite apart from any consensus opinion about the morality of living together without paperwork or vows. Rather, the provisions are relentlessly practical and seem to have taken their current form in response to immigration and property settlement issues rather than out of any sense of what is right or proper, let alone out of any reverence for God. That doesn’t mean everything about these laws is unbiblical or anti-biblical, but some aspects definitely are.
On the good side (to some degree at least), Canadian common law marriage requires a year of cohabitation in a conjugal relationship. I once knew a woman who got married to her boyfriend in Las Vegas and had the marriage nullified in Las Vegas two days later. By the time her friends at work were ready to celebrate her union, it was already over. A year is not a long time, but it does imply a degree of stability and commitment, which I heartily approve as a scriptural value.
Likewise, the conjugal relationship. Technically, I suppose, you could formalize a marriage before a qualified person in church or at a government office, never have sex for the rest of your life, and still be considered married by your neighbors and the law. I’m not sure that’s really the idea of marriage in the eyes of God as we find it in scripture, where the sex act to commence the marriage seems a non-trivial part of the equation and the expectation of an ongoing sexual relationship is not just normal but commanded in the interests of sexual continence. Common-law marriage under Canadian law actually requires conjugal relations to be occurring, or else no binding union is recognized. For immigration purposes, you have to prove the relationship is sexual to have it legitimized. In other contexts, no proof is necessary.
More Areas of Agreement
Again, on the positive side, common-law marriage is monogamous. I actually quite like this paragraph from the summary of the Act:
“A common-law or conjugal partner relationship cannot be established with more than one person at the same time. The term conjugal by its very nature implies exclusivity and a high degree of commitment. It cannot exist between more than two people simultaneously. Polygamous-like relationships cannot be considered conjugal and do not qualify as common-law or conjugal partner relationships.”
Well, cheers to that! It’s a low bar, admittedly, but a biblical bar.
One more on the positives: Canadian common law refuses to recognize certain types of partnerships as legitimate: incestuous partnerships, partnerships where one or both are below the age of consent, and partnerships that commence with one party in jail. So would the word of God. Glad there are some rules at least, even if they are not all for the right reasons.
On the Negative Side …
Here’s a provision of Canadian law I’ve not come across before and that I like considerably less:
“Persons who are married to third parties may be considered common-law partners provided their marriage has broken down and they have lived separate and apart from their spouse for at least one year, during which time they must have cohabited in a conjugal relationship with the common-law partner. Cohabitation with a common-law partner can only be considered to have started once a physical separation from the spouse has occurred. A common-law relationship cannot be legally established if one or both parties continue to maintain a conjugal relationship with a person to whom they remain legally married.”
That’s kind of creepy. So in Canada you can have a de facto marriage and a de jure marriage at the same time, provided you haven’t legally divorced your first wife and are not sleeping with her, and provided you have been sleeping and living with your girlfriend for a year. That’s odd, inconsistent, unpleasant and unbiblical. Get the legal stuff over with first before you shack up, please!
The Unenviable Task of Elders
All of this makes it an unenviable task for elders asked to weigh in on the morality of existing relationships among brand new believers. Sure, you can draw hard lines the Bible doesn’t draw, but I’m not sure that’s either wise or useful.
Say, for example, a woman gets saved who has been living in a committed common-law marriage for ten years, but her common-law husband is still on the fence about Christ. Do her elders advise her to leave her partner so as not to continue in “fornication”, or does the principle established in 1 Corinthians 7 about unbelieving partners apply equally in traditional and common-law marriages? My instinct is that it should, and especially so when children are involved. And if they advise her to leave her unsaved partner unless he is willing to walk down the aisle with her, would they consider it legitimate for her to marry a believer at some later date? I hope not, but they are sure putting her in a difficult situation if they insist she ought to leave a long-term, committed relationship to maintain her good standing in the local church. Does she not have some Christian obligation to this man that they should be encouraging her to consider?
As weird as that sounds, here’s another question: how do we define “fornication” in the common-law scenario? It’s not a simple question. Some long-term common-law marriages are quite successful, a few more than many Christian marriages that commenced with all the legal bells and whistles. Kurt Russell and Goldie Hawn, to take an extreme example, are at an enviable forty years and two children together without making it “official”, a record that ought to embarrass Christians who blew up legal marriages far sooner. But assuming Kurt and Goldie’s relationship is still conjugal, are they “fornicating” in any biblical sense? By any biblical standard, I would estimate they are not. And, if not, when did they stop fornicating and start being man and wife in the eyes of God? Good luck adjudicating that one!
Looking at a Black and White World?
Christians have a tendency to be very black and white about such matters. Where the scripture is crystalline and its application incontestable, that’s a good thing. We need to stand for the word of God as written. But I do not think the answers to all questions about common-law marriage relationships are equally straightforward. Believers need to take care how they counsel committed couples in awkward states of transition between the world and the kingdom. Our guiding principle ought to be to do no harm.
Hey, you never know, maybe the Canadian medical profession will follow our example and start doing the same.
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