In the shadow of marriage: Widows, common law wives, and the legal construction of marriage

Historians of marriage have created a robust record of the ways in which marriage laws have defined the identities of married women. This dissertation explores the relationship between legal constructions of marriage and unmarried women. It argues that judges and lawmakers have defined the rights of certain unmarried women “in the shadow of marriage.” In other words, legal actors—their imaginations bounded by the dominant, normative paradigm of marriage—have defined an unmarried woman's legal status by virtue of her contiguous relationship (real or imagined) to marriage.; This dissertation explores the dynamic relationship that has existed between marriage and its shadow. It does so by examining the history across the nineteenth century and into the early decades of the twentieth century of two private law doctrines that defined the legal and economic rights of two groups of women living outside of marriage: Dower, which determined the property entitlements of widows, and common law marriage, which allowed certain women to sue their long-term, male, intimate partners for support despite the fact that they had never formally married. It argues that dower and common law marriage both functioned as doctrines of female support that forged a mutually constitutive relationship between marriage proper and certain groups of unmarried women. On the one hand, through these doctrines, lawmakers and judges extended the ideological functions of marriage to define the legal rights and identities of widows and putative common law wives. In particular, judges and lawmakers envisioned this expansive model of marriage as a potential solution to the economic dependency of some women living formally outside marriage. On the other hand, conversely, through defining the rights of widows and putative common law wives, lawmakers forged the meaning of marriage proper within the peripheral terrain of its shadow. Courts and legislators looked to the legal predicaments facing certain groups of formally unmarried women in order to define what marriage should mean for those within its borders. Understanding the meaning of marriage in the nineteenth and early-twentieth centuries, therefore, requires a foray into the territory outside of its formal border.