Marriage: When Two Remain Two

Next week, six couples will take the UK government to court arguing that humanist marriage should be recognised in law. At the moment, humanist marriage ceremonies are not legally recognised, meaning that it is necessary for humanist couples either to remain legally unmarried or to have a second civil ceremony.

The legal history of marriage in the UK is interesting. Originally it was available only as a religious ceremony, in which husband and wife became a single legal entity. “When two become one,” sang the Spice Girls, in what was either a cliched reference to sex or an incisive and damning commentary on the persistence of this doctrine.

In one of the first modern legal texts, Blackstone’s Commentaries on the Laws of England of 1765, a woman was understood to exist either as a femme covert or as a femme sole – a married or an unmarried woman. A femme covert was also said to be in coverture, and the principle of coverture was to establish the legal fiction that a husband and wife were one legal person:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.

As one legal being, the woman could not refuse sexual access to her husband, and he was responsible for her financially, and directed any money or property that had been hers. Furthermore, he was often responsible in law for her actions with a presumption that she acted under his direction; it was this principle that led Dickens’ Mr Bumble to describe the law as “a ass, a idiot,” and to add that “If that’s the eye of the law, the law is a bachelor.” Quite. 

However, the principle survived until the surprisingly recent past. The right of women to their own property was first, arriving in 1870 with the Married Women’s Property Act.  The obligation of a woman to provide sexual access to her husband (the entitlement of a man to sexual consent from his wife) was only abolished in the Criminal Justice Act 1994, after the case of R v R [1991] UKHL 12. Until this point it was not legally possible for a man to rape his wife, because as they were one person, he would be seeking consent not from her but from himself. The equivalent common law obligation of a man to provide financial support to his wife was yet more recent, with s.198 Equality Act 2010. An individual of either sex can still not be compelled to testify against their spouse in some criminal cases in England and Wales, and this derives from the same starting point, in that if the spouses are one legal person, the right not to self-incriminate extends to preventing their spouse incriminating them.

Within this model, sex was regarded as part of the contract of marriage, in which sex was an act of labour performed by a woman (wife) in exchange for financial benefit from a man (her husband). The hangover from this model is still alive in rape culture – the belief that expenditure on the part of a male entitles him to sexual access – and in the sale of sexual services.

It is now commonly accepted that sexual consent is not a contractual obligation marked by financial consideration at least as far as marriage goes. The arguments of the last two decades over same sex marriage compelled instead the widespread acceptance that marriage is an arrangement between equals motivated by love. The extension of the idea of a religious marriage to one based on humanist principles, which expressly rest on liberal human values, would underscore that two do not become one, but remain very much two, even in marriage.

2 thoughts on “Marriage: When Two Remain Two”

  1. I assume that “femme covert” derives from the same etymology as the verb to “cover”, meaning (of a male) to mate a female – I’ve normally come across that in a farming context. I mention this not just because I am an etymology bore but because (I think) it’s a better explanation of why “the woman could not refuse sexual access” than the “one person” idea – or at least it’s an extra dimension.

    1. Hello fellow etymology bore! Sort of – it does come from the French couvrir, but in the “covert” sense of ‘hidden’ or ‘concealed’ rather than in the “covered” sense of being on top of that you get in a farming context (or Othello!). See the Etymonline entry on femme covert: https://www.etymonline.com/word/feme%20covert#etymonline_v_5842, read alongside the entry on coverture https://www.etymonline.com/word/coverture?ref=etymonline_crossreference.

      A woman was considered to be “in coverture” when married so literally, hidden or concealed by her husband.

Leave a Reply

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.