Cohabitation, Common Law Marriage & Other Ambiguous Questions

Recently, I received an email from an attorney who is a friend of our ministry. She described the dilemma she often faces when trying to answer questions concerning what constitutes a marriage. These are the concerns she voiced in her email (by permission)::

I’ve been entertaining some philosophical discussions of marriage lately.

I had a couple call into my office last night and ask me to write their wills.  They have lived together for more than twenty years but have never married.  Part way into the discussion, the man said, “Is it easier for us to pay for you to do our wills, or should we just get married?”  When I recounted this to my colleague who is a Christian, he said, “They’re already married if they’ve lived together for that long.”

My state does not recognize common law marriage, so he wasn’t talking about legalities.  He meant that a 20 year commitment was a marriage without a title.

This led to a discussion of when a marriage actually starts.  What is it that makes a person married?  This same discussion keeps coming up in my circles.  It appears that now that we’ve discussed and hammered out the parameters of marriage (one man, one woman, for life), young adults are now trying to figure out what other than a civil ceremony actually triggers a marriage.

Clearly the moment of civil marriage is the moment you make a commitment to another person before witnesses and sign a certificate proving that the commitment happened.  But what about God’s idea of marriage?  Does a marriage in God’s eyes begin at the moment the man and woman make a verbal covenant?  Does God view a couple as married when they have sex? Does it happen when two people live together long enough to prove a commitment?

In light of the confusion over marriage in our culture I believe the questions my friend raises are so significant and relevant they demand a biblical answer. Therefore, in this article I will attempt to present scripturally backed responses to the questions she posited.

First, we need an authoritative plumb line, a non-changing criterion we can confidently reference and depend upon. Since God is the one who instituted and ordained marriage (Genesis 2:18-25), His divine design is the standard by which we must evaluate these issues.

Therefore, we need to start where God started, in the Garden of Eden where He united the first man and woman together in marriage (Genesis 2:18-25).

In verse 18, God declares it is not good for man to be alone. To eliminate loneliness in man’s life, He fashions woman from man’s rib and presents her to be his lifelong companion (verse 20). Verse 24 reveals several significant and insightful foundations of God’s creational design for marriage by announcing, “Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.” This verse is so essential in understanding the marital union that both Jesus (Matthew 19:5) and the apostle Paul (Ephesians 5:31) refer back to it when addressing questions in the New Testament. Hence, this key declaration about marriage is not cultural but creational. It applies throughout all ages.

But, why is this verse crucial in understanding God’s design of marriage?” It outlines three major steps to becoming husband and wife: “leaving,” “cleaving,” and “weaving” or becoming “one-flesh.”

Obviously in the first marriage there are no human parents to leave. God is the father from which Adam and Eve “leave” (by God’s initiative) to be joined together as husband and wife. By using the word “leave”, He is establishing the pattern for all future marriages whereby, according to Dan Allendar, “Leaving means starting a whole new relationship in which the core loyalty is not to parents’ priorities, traditions, or influence but to an entirely new family that must set its own course, form, and purpose.”[i] Leaving in the Genesis 2:25 sense is not a trial period in which the couple sticks together to see if the relationship will work out. Leaving in this context starts with the purpose of becoming a new and lasting identity. The covenant union is so identifiable, the wife receives a new name. Adam or Ish (which is Hebrew for man) named his wife ishshah (soft man) the feminine version of his name. The bride of Christ is called Christian. Formal legal covenants provide the opportunity and privilege to hold the identifiable title, “Mr. and Mrs.”

“Cleave” is a Hebrew word that literally means to be glued together. It also means to unite with someone through covenant (Deuteronomy 10:20, 11:22, Joshua 22:5). Even though God does not reveal the actual vows spoken between Adam and Eve, the word “cleave” itself implies covenant vows were pronounced. This is vital to keep in mind in answering our questions. From the very beginning (God’s creational design and pattern for marriage), Our Maker ordained marriage to be a covenantal relationship between a man, a woman, and Himself (God was there performing the uniting ceremony).

God confirms this assertion in other scriptures. Proverbs 2:17 describes a wayward wife as someone who has forsaken her companion (husband) and ignored the “covenant” that she made not only to her husband but also before God.

In Malachi 2:14, the men of Judah (who had treated their wives treacherously) ask God why He will not accept their offerings and worship. He answers:

Because the Lord hath been witness between thee and the wife of thy youth, against whom that has dealt treacherously: yet is she thy companion, and the wife of thy covenant.

Notice the word, “witness” which means legal accuser. Why would God describe Himself as a legal accuser against the men of Judah? He does so to remind them He was literally present at their marriage ceremony and was the divine force uniting them together. This presence is confirmed by Jesus in Matthew 19 when the Pharisees question Him about divorce. In answering their question, Jesus reminds them of God’s original design for marriage by quoting Genesis 2:24 (Matt. 19:5), then adds this very important conclusion; “What therefore God hath joined together, let not man put asunder.” Jesus emphatically confirms marriage as a covenant relationship created at a specific point in time when God Himself joins a man and woman.

In his book, The Meaning of Marriage, Tim Keller explains how contemporary ceremonies picture God’s covenantal participation:

Christian wedding services have both a set of questions as well as a set of vows. In the questions, each spouse is asked something like this:

Will you have this woman to be your wife? And will you make your promise to her in all love and honor, in all duty and service, in all faith and tenderness – to live with her, and cherish her, according to the ordinance of God, in the holy bond of marriage?

Each spouse answers “I will” or “I do” – but notice they are not speaking to each other. They are looking forward and technically answering the minister, who asked them the questions. What they are really doing is making a vow to God before they turn and make vows to one another. They are “speaking vertically” before they speak horizontally ….. The covenant made between husband and wife is done “before God” and therefore with God as well as the spouse. To break faith with your spouse is to break faith with God at the same time. [ii]

At the end of Malachi 2:14, God defines marriage using two very important words (the same words used in Proverbs 2:17). The first word is “companion” and the second word is “covenant”. From this verse, we derive a biblical definition of marriage as, “A Covenant of Companionship between a Man and Woman.”[iii] Notice, God designed and defined marriage as more than just being companions (living together for whatever amount of time). It is a “covenant of companionship”. Therefore, where there is no “entering into covenant” there is no marriage!

Since the biblical essence of marriage is entering into covenant, it is essential to understand exactly what this means and to consider the implications of its origin and makeup.

The Hebrew word for covenant is bereeth which means a compact or agreement made by passing through pieces of flesh[iv]. In the Old Testament cutting covenant between two parties normally required severing an animal down the middle of its back leaving two bloody halves. The two halves would be positioned on the ground leaving enough space for both participants to stand. Positioned between these two bloody halves, the participants would point their fingers to heaven and say: “God, do so to me and more if I break this covenant.” They were literally sealing the covenant with their lives! Clay Trumbull eloquently elaborates the hidden meaning:

It is the peculiarity of the primitive compact of blood friendship that he who would enter into it must be ready to make a complete surrender of himself, in loving trust, to him with whom he covenants. He must, in fact, so love and trust, as to be willing to merge his separate individuality into the dual personality of which he becomes an integral part.[v]

Likewise, entering the marriage covenant requires a man and woman make vows to each other in the presence of God. The vows include a promise of their present and future commitment to live with each other as self-sacrificing companions the rest of their lives.

In his insightful book God, Family, and Marriage, Andreas Kostenberger provides deeper understanding. He states[vi]:

If the marriage covenant is defined as a sacred bond instituted by and publicly entered into before God (whether or not this is acknowledged by the married couple), normally consummated by sexual intercourse, we submit that embracing the “marriage covenant” concept means a couple must understand and commit itself to at least the following five things:

1) The permanence of marriage:

Marriage is intended to be permanent since it was established by God (Matthew 19:6, Mark 10:9). It involves a solemn promise or pledge, not merely to one’s marriage partner, but before God.

2) The sacredness of marriage:

Marriage is not merely a human agreement between two consenting individuals (a “civil union”); it is a relationship before and under God (Genesis 2:22; hence a “same-sex” marriage is an oxymoron; since scripture universally condemns homosexual relationships, God would never sanction a sacred marriage bond between two members of the same sex).

3) The intimacy of marriage:

Marriage is the most intimate of all human relationships, uniting a man and woman in a “one flesh” bond (Genesis 2:23–25). Marriage involves “leaving” one’s family of origin and “cleaving” to one’s spouse, which signifies the establishment of a new family unit distinct from the two originating families. While “one flesh” suggests sexual intercourse and normally procreation, at its very heart the concept entails the establishment of a new kinship relationship between two previously unrelated individuals by the most intimate of human bonds.

4) The mutuality of marriage:

Marriage is a relationship of free self-giving of one human being to another (Ephesians 5:25–30). The marriage partners are to be first and foremost concerned about the well-being of the other person and to be committed to each other in steadfast love and devotion. This involves the need for forgiveness and restoration of the relationship in the case of sin. “Mutuality”, however, does not mean “sameness in role.” Scripture is clear that wives are to submit to their husbands and to be there “suitable helpers,” while husbands bear the ultimate responsibility for the marriage before God (Ephesians 5:22–24, Colossians 3:18; Genesis 2:18, 20).

5) The exclusiveness of marriage:

Marriage is not only permanent, sacred, intimate, and mutual; it is also exclusive (Genesis 2:22–25; 1 Corinthians 7:2–5). This means that no other human relationship must interfere with the marriage commitment between husband and wife. For this reason our Lord treated sexual immorality of a married person (Matthew 19:9; including even a husband’s lustful thoughts, Matthew 5:28) with the utmost seriousness. For this reason, too, premarital sex is illegitimate, since it violates the exclusive claims of one’s future spouse. As a Song of Solomon makes clear, only in the secure context of an exclusive marital bond can free and complete giving of oneself in marriage take place.

In sharp contrast to defining marriage as a covenant relationship, our culture views marriage as a contractual relationship. A contract is built on distrust. It says “As long as you love me right, I’ll love you right, but when you don’t love me don’t expect me to love you.” Whereas a covenant relationship is built on trust. It says “If you stop loving me, I’ll still keep loving you.” Keller adds, “In a covenant, the good of the relationship takes precedence over the immediate needs of the individual. Whereas in a contractual relationship, it could be said that the individual’s needs are more important than the relationship.”[vii]

When describing the difference between a covenant and a contractual relationship, Kostenberger states:

While in the Old Testament times there is no major discernible distinction between contracts and covenants, because people regularly invoke God as a witness when entering into mutual agreements, there is a sharp disjunction between (secular) contracts and (sacred) covenants in modern secular society. Although this (contract) is the prevailing model of marriage in Western culture (including Western Christianity), we see limitations on several grounds. First, this teaching is reductionistic and not found anywhere within the pages of Scripture to describe marriage as a whole. An aspect of marriage is that an agreement is made between a man and a woman, but this does not cover the whole of what marriage is. In fact, the contractual model did not exist as a developed model of marriage until the 17th century at the earliest. The second objection to this view is that, given the central place of marriage in God’s created order, the contractual model does not cohere. It is deficient in that it provides an extremely weak basis for the permanence of marriage. In essence, the contractual model of marriage bases the security and stability of marriage on the ability of people not to sin. If one spouse commits a grievous enough sin to break the contract, the other partner is free to dissolve the union. Thirdly, this model of marriage is inadequate because, by rooting matrimony in civil law, it opens the door (at least in principle) to a variety of marital arrangements of Scripture clearly prohibits. To cite but a few of the more egregious examples, it would only require an amendment to the civil law in order to allow for “legal” same sex marriage, polygamy, incestuous marriage, or bestiality, and so on.”[viii]

In light of the understanding that “entering into covenant” is an essential part of initiating a marriage, let’s attempt to answer each of the questions posited.

I will answer the first two questions as one; “What makes a person married?” and “Does marriage begin the moment the man and woman make a verbal covenant?”

My assertion is that a couple is considered biblically married the moment they exchange covenant vows before each other and before God. The biblical model is that these vows are normally made in a public setting before witnesses (not privately given) as in the wedding ceremony of Solomon and his Shulamite bride (Song 3:6-11).

Biblical love in marriage is not based on “feelings” which come and go but rather on a distinct covenant promise before God and each other. Keller expresses the absurdity of a lack of this type of commitment:

But when the Bible speaks of love, it measures it primarily not by how much you want to receive but by how much you’re willing to give of yourself to someone. How much are you willing to lose for the sake of this person? How much of your freedom are you willing to forsake? How much of your precious time, emotion, and resources are you willing to invest in this person? And for that, the marriage vow is not just helpful but it is even a test. In so many cases, when one person says to another, “I love you, but let’s not ruin it by getting married,” that person really means, “I don’t love you enough to close all my options. I don’t love you enough to give myself to you that thoroughly.” To say, “I don’t need a piece of paper to love you” is basically to say, “My love for you has not reached the marriage level.”[ix]

The “marriage level” is a distinct exchange of covenantal vows.

The first objection to this position is that many married couples in the Bible seemingly had no wedding vows. For instance when the servant completes the task of bringing a wife to Abraham’s son, Rebecca dismounts from the camel and Genesis 24:65-67 records:

…she took a veil, and covered herself. And the servant told Isaac all things that he had done. And Isaac brought her into his mother Sarah’s tent, and took Rebecca, she became his wife; and he loved her:

This sounds like Rebecca jumped off the camel, put on her veil and walked right into the tent alone with Isaac. Even though, no covenant vows are mentioned, it does not mean they were not exchanged. The commentary in Faith Study Bible explains, ”Israelite women did not normally veil themselves. Veiling was, however, part of the marriage ceremony.”[x] The use of the veil therefore denotes some type of ceremony. In fact, even though not specifically mentioned, biblical customs of that day infer an official exchange of vows in other instances also. The Bible states that Joseph and Mary were espoused or betrothed to each other (Luke 1:27). Although not specifically mentioned, this language indicates there had been a customary ceremony in which they exchanged commitment promises that officially recognized them as husband and wife with plans to consummate the marriage at a later date (normally about one year). Glenn Greenwood and Latayne Scott in their book A Marriage Made in Heaven state:

The Old Testament Jews had several ways in which they signified or ratified an agreement. God, for instance, sealed his covenant with Abram by passing between the halves of sacrificial animals, a practice that became a customary way of sealing such contracts. In negotiating to take Ruth as his wife, Boaz finalized the arrangement by giving his sandal to his former kinsman redeemer. The marriage covenant, though, was most often sealed with a cup of wine…. The cup of wine signified three things. First of all, it was a finalizing element in the contract of marriage that the bridegroom had negotiated with the girl’s parents. Like a signature on the legal document, it symbolized the exchange of three elements of great value: money, promises and bachelor freedom the bridegroom was willing to sacrifice to purchase this treasure, his future wife. It was also a toast, a salute of tribute to this young woman, for no matter how many compliments she had heretofore received in her life, none can compare with this fact: someone wanted her. Finally, the girl’s acceptance of the cup meant that she accepted the young man himself to be her future husband. As she looked shyly into his eyes, tasting the richness of the wine, she completed this covenant[xi].

In different cultures the covenant vows exchanged in the wedding ceremony are outwardly symbolized in various ways. The Jews did so through the exchange of a cup of wine (as stated above), a covenant agreement, and the construction of a bridal chamber. The Romans wedding included vows as well as the exchange of a ring (as in our culture). The key point is that the couple presented themselves before each other, before God, and before witnesses and exchanged vows that included a promise of present and future love. At the moment they recited these vows to each other (horizontally), and before God (vertically), God divinely joined them together as husband and wife.

This brings us to the third question, “Does God view a couple as married when they have sex?” Sexual intercourse consummates a marriage, but does not begin or make a marriage. A good example in scripture is Joseph and Mary. They were considered married (as were other Jewish couples) when they were betrothed (Matthew 1:18-19) even though they had not consummated the marriage with sexual relations. God prohibits sex outside of marriage (Hebrews 13:4, 1 Corinthians 6:12-20, 1 Thessalonians 4:3-6) and labels it “fornication.” A cohabitating couple (living together and not married) are committing what the Bible calls “fornication.”

Lastly, “Does marriage happen when a couple live together long enough to prove a commitment (common law marriage)?”

Historically, common-law marriage came into being because there were small villages in England to which a church official or a government official was unable to travel on a regular basis. Therefore, if a couple desired to get married, they could legally do so without the presence of either a church official or government official. But still there would be the component of a public declaration of their intent to marry before cohabiting. During World War II, there were common-law marriages that took place in Japanese prison camps between prisoners by a similar public declaration of intent….For most states and countries that recognize common-law marriage, the requirements vary some but usually consist of (1) capacity to marry (not being involved in any other marriage) (2) mutually expressed desire (either verbal or written) to marry (3) a public expression to others of that desire by referring to themselves as “Mr. and Mrs. …,” etc., and (4) continually cohabiting. There is a common misperception that if you live together for a certain length of time (seven years is what many people believe), you are common-law married[xii].

“Even though common-law marriage in the United States can still be contracted in nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah and Texas) and the District of Columbia, common-law marriage can no longer be contracted in 27 states, and was never permitted in 13 states.”[xiii] Does a civil law in the nine states that make allowance for “common law marriage” make the couple actually “biblically married?’ As stated earlier in this article, Christians must not let the state (civil law) dictate what constitutes a marriage. If so, then many types of unbiblical unions (such as homosexual marriage that is presently legal in 36 states) will be called a “marriage” even though God does not qualify the union as a marriage. Marriage is so sacred that only God can determine its makeup. Nowhere does Scripture label homosexual or heterosexual cohabitation as “marriage”. Marriage is a covenant (as explained above) of companionship between a man and a woman.

Since God designed marriage to be an earthly manifestation of the heavenly relationship between Jesus Christ and His bride, the church (Ephesians 5:32), any variation of His requirements distort what He intends marriage to represent. Therefore, entering the sacred institution of marriage should not be taken lightly, but always in a way that glorifies God. When discussing these or other seemingly ambiguous questions concerning marriage and family, Christians should apply the Apostle Paul’s admonition in 1 Corinthians 10:31, “Whether you eat or drink, or whatever you do, do all to the glory of God.”

 

[i] Dan Allender & Tremper Longman III, Intimate Allies (Wheaton, ILL: Tyndale House, 1995) 217.

[ii] Timothy Keller, The Meaning of Marriage, (Dutton, 2011) 83.

[iii] Sam & Debbie Wood (Nashville, TN: Family Fortress Ministries, 2004) 24.

[iv] Kay Arthur, Beloved, (Eugene, OR: Harvest House Publishers, 1994), June 1-June 30

[v] H. Clay Trumbull, The Blood Covent, (Kirkwood, MO: Impact Books, Inc. 1975) 219-220.

[vi] Andreas Kostenberger, God, Marriage, and Family (Wheaton, ILL: Crossway Books, 2004) 89-90.

[vii] Timothy Keller, The Meaning of Marriage, (Dutton, 2011) 81.

[viii] Ibid, 83.

[ix] Ibid, 78.

[x] https://bible.faithlife.com/books/esv/Ge24.60

[xi] Glenn Greenwood & Latayne Scott, A Marriage Made in Heaven (Dallas, TX: Word Publishing, 1990) 39-41.

[xii] http://www.gotquestions.org/common-law-marriage.html#ixzz3PTkft5Hu

[xiii] http://en.wikipedia.org/wiki/Common-law_marriage_in_the_United_States