Trial, Companionate, And Temporary Marriage-Concubinage
( Originally Published 1936 )
NOTHING could be more conducive to harmonious relations between husband and wife than intimate pre-marital experience of each other, with reference to sexual compatibility, mental compatibility and other factors connected with the community of married life, and procreation. The importance of such experience has been recognised from very ancient times.
Among many savage peoples there is a regular marriage upon trial before the union becomes definite, the bridegroom either taking the girl to his own house or going himself to stay with her parents for a certain length of time.' The latter happens where a wife is obtained by services rendered to her father. The practice of serving for a wife is no doubt in a large measure due to the unwillingness of the father to give his daughter in marriage for nothing, but it also has another meaning: the period of service may be intended to test the young man's ability to work and to show whether he is an acceptable husband and son-inlaw. His endurance, patience, and meekness, his adroitness as a hunter, and his zeal and frugality as a herdsman, are tested. The bride's father gives his assent to the marriage only after the bridegroom has stood the probation well. During his term of service he may or may not have access to the girl. As I have pointed out before, among savages pre-nuptial relations frequently have the character of a trial by which the lover ascertains that the woman will gratify his desire for offspring, and in such a case marriage is not concluded before the birth of a child or until there are signs of pregnancy.
Trial marriage has been and is still practised on a large scale in Europe. In Scotland, prior to the Reformation, it existed as a genuine custom called " hand-fasting ". At the public fairs men selected female companions with whom to cohabit for a year. At the expiry of this period both parties were accounted free; they might either unite in marriage or live singly. A similar custom existed in Ireland, in a very rude form; and the Welsh, according to Giraldus Cambrensis, did not marry until they had tried, by previous cohabitation, the disposition and particularly the fecundity of the person to whom they were engaged.° At the present day trial marriage is a widespread custom among the rural population of Teutonic countries; German peasants are heard to say that no one wishes " to buy a pig in a poke ", that " one does not buy even a penny pipe without trying it. In various parts of Germany 40 or 50, nay in certain districts as many as 90, per cent. of all legitimate first-born children are conceived before marriage.' The custom of free unions, usually rendered legal before or after the birth of children, seems to be fairly common in many, or perhaps all, rural parts of England; and the union, if found satisfactory, is made legal even when there is no prospect of children. In some counties it is said to be almost a universal practice for the women to have sexual relationships before legal marriage; sometimes the woman marries the first man whom he tries, and sometimes she tries several before the man who suits her. Clara Collet says that among the poorer half of East London, " in a large number of cases, the legal ceremony only takes place, if it takes place at all, in time to legitimise the offspring of the union.
Unions having the character of trial marriages are widely spread also where they are not actually sanctioned by custom, though looked upon with toleration or winked at; and they are spreading more and more among the upper classes. According to Judge Bartlett, it is in the United States a well-known and admitted fact that intercourse between engaged couples is definitely on the increase. Of the one hundred married men and one hundred married women studied by Dr. Hamilton, who had attained a relatively high degree of culture, 33 men and 31 women acknowledged that they had indulged in the sex act with their spouse before marriage. Professor Fetscher believes that in Germany sexual intercourse is extremely frequent among betrothed couples in all strata of society, and that it very often is practised without parental disapproval. He thinks the practice should be recognised by custom and law, if some stipulations are made in favour of the female partner.
A similar proposal is made by Dr. Bjerre, who thinks that the present betrothal should be transformed into a special institution, having the same legal validity as marriage, although neither the conclusion nor the dissolution of it need be registered by the authorities. So, too, the Rev. H. Lewis maintains that " a love affair should be recognised as a respectable, lawful union, which may be dissolved at any time. This should last at least two years before being legalised, and during these two years the couple should not have childrenbirth-control being available ". Dr. Parsons writes: " Truly monogamous relations seem to be those most conducive to emotional or intellectual development and to health, so that, quite apart from the question of prostitution, promiscuity is not desirable or even tolerable. It would therefore seem well, from this point of view, to encourage early trial marriage, the relation to be entered into with a view to permanency, but with the privilege of breaking it if proved unsuccessful and in the absence of offspring without suffering any great degree of public condemnation ".
Professor Von Wiese sees no possibility of securing a really harmonious monogamous sex organisation without a time of trial, since at present everything is left to chancel According to Dr. Havelock Ellis, trial marriages are demanded by prudence, as a precaution desirable both by uncertainty as to either the harmony or the fruitfulness of union until actual experiment has been made, and by the practical impossibility of otherwise rectifying any mistake in consequence of the antiquated rigidity of most European divorce laws; " and ", he adds, " as foresight increases with the development of civilization, and constantly grows among us, we may expect that there will be a parallel development in the frequency of trial marriage and in the social attitude towards such unions ". Dr. Bjerre heard a Swedish mother say that she would never allow her daughter to marry a man unless they had been living together for some time previously. He believes himself that when a man and a woman have been doing so, they will as a rule know whether they should marry or not; hence he regards divorce as an " antiquated conception ". But the unconventional domestic arrangement is not quite equivalent to marriage. According to Lorine Pruette, a considerable body of experience is accumulating to suggest that adjustment outside matrimony is no necessary guarantee of adjustment within the social, traditional institution of marriage, and that the happiness of two persons as lovers may work against, as well as for, their happiness as married partners. Montaigne says that " few men have made a wife of a mistress, who have not repented it. And even in the other world, what an unhappy life does Jupiter lead with his, whom he had first employed as a mistress? ".
In the discussion of free unions outside ordinary marriage the so-called " companionate marriage " nowadays plays the most prominent role. This term was first used by Dr. M. M. Knight, who pointed out that because of changes which have taken place in modern civilization certain very definite modifications have happened, almost without being noticed, producing the companionate and the family types; a marriage of the former type is a union of two people for sexual companionship without the intention of producing offspring. The companionate marriage pro-posed by Judge Lindsey, with whose name that term is mainly associated, " is legal marriage, with legalised birth control and with the right to divorce by mutual consent for childless couples, usually without payment of alimony. . . . It is a state of lawful wedlock, entered into for love, companionship, and cooperation by persons who, for reasons of health, finances, temperament, etc., are not prepared at the time of their marriage to undertake the care of a family ". It is by no means an invention of a new kind of sexual relation-ships: what is new is merely the attitude taken towards a type of relationships already existing secretly, by frankly recognising them. Such a recognition would remove all the difficulties and deceits they now involve, and the risks of discovery and humiliation, and thus exercise a steadying and ennobling influence. It would constitute a new kind of marriage, from which many benefits might be expected. The companionate would be well suited to the needs of women in the professions who do not wish to handicap themselves in their careers by the assumption of the conventional family obligations, but who do, nevertheless, desire the companionship offered by marriage. It would be well adapted to business and professional men whose income is not yet sufficient for the support of a family, but who do not wish to postpone marriage until such time as an adequate income is attained. It would be particularly useful to an ever-increasing number of young people, between the normal biological age of mating and the age at which marriage becomes an economic possibility; such as are still in college or in professional schools could be supported by their parents in the same way as before, and the young couples would continue their studies under more favourable conditions. Moreover, unfit couples would not commit the crime of bringing into the world children with an inferior physical or mental inheritance.
But the companionate may also be a valuable preliminary to ordinary marriage. Judge Lindsey protests against the allegation that companionate marriage is a " trial marriage ". Yet it appears from many statements made by him that it is, to a large extent, supposed to serve the same purpose as marriage by trial. He says that couples who found in due time that they were fitted to remain together definitely, and to undertake the joint responsibility of children with a fair chance of carrying the big undertaking through happily and willingly, would deliberately have children. On the other hand, those who found by experience that they could not pull together that well, but found the mere sexual bond satisfactory, would not bring into the world unwanted children who would lack the benefit of a happy home and of correct rearing.' " The tendency would be for men and women to enter Family marriage only on a basis of proved and steadfast love, whose quality had already been tested before the coming of children ". " In the freedom of the Companionate, people would have a safe opportunity to grow into each other's lives; and they would accomplish that object only if the elements of such growth were really present in their union. . . . The Family would thus crown their lives. It would have grown as grows the oak, slowly. The early Companionate would be a mere sapling beside it. And thus there would be created a home which would be a safe nest for children, and a sure refuge for the makers of it ". The companionate would tend to make marriage of the family type more stable: " We should avoid divorce, not by forbidding it to persons who unfortunately need it, but by seeing to it that permanent marriage can be contracted only under conditions which will give it a reasonable chance of success—a much bigger chance than it has at present. . . . The way to accomplish that is to make eroticism less and less the chief determining and controlling factor in people's choice of their mates ".
From these statements it is as plain as daylight that Judge Lindsey has not, as has been alleged, aimed at undermining marriage, but on the contrary to strengthen it. Nor is there anything in the least revolutionary in his proposals relating to birth control and divorce by mutual consent. The latter was permitted to childless couples by the Prussian code of 1794, and is nowadays, in several European and Central American countries, permitted by law even to couples who have children. But it is impossible for me to understand how Judge Lindsey could, with any hope of success, advocate the institution of a special kind of marriage, with the right of birth control and of divorce by mutual consent, in a country where both are prohibited by law? 3 How is it conceivable that the law could allow certain couples to do something that is forbidden to others, simply because they wish to do it, and in addition grant them another privilege denied to everybody else? Judge Lindsey recognises himself that the passing of three bills would establish the companionate, as we now illegally have it, on a legal basis: first, a bill for an Act to repeal the present laws relating to birth control; secondly, a bill to amend the laws relating to divorce by adding a clause providing that " where couples are childless, and where the efforts of the magistrate to bring about a reconcilement have failed, and where the couple mutually desire divorce, the divorce shall be granted without further expense or needless delay "; thirdly, a bill to regulate the property status of the divorce, dealing with the right of the wife to support and alimony, which would be withheld or granted according to the conditions of the case. Why, then, does not Judge Lindsey simply propose such changes of the law, instead of provoking terrific excitement by suggesting a new kind of marriage to exist side by side with the old one?
Those changes should not be less attainable in his own country than they have proved to be elsewhere. The law prohibiting birth control is already a dead letter there, and it is well known that if a married couple desire divorce they can even now readily obtain it under a statutory regulation. But a clause introducing mutual consent as a ground of divorce might make it possible to dissolve a marriage without the assistance of a lawyer and to do it as cheaply as to conclude it. A democratic country like the United States should not wish divorce to be more difficult for the poor man than for the rich.
It seems quite hopeless to expect that any modern law would recognise a probationary union as a particular, lower form of marriage. The only thing that the law can do in the matter is not to prohibit such a union, and if any law nowadays does so it is not enforced. The respectability of trial unions depends entirely on the social attitude towards them, and this attitude depends on their frequency and on the opinions about their suitability. This is the way in which the sanction given them by rural custom has originated. But this sanction has not the coarse form that a paragraph of the law would have. I have sufficient first-hand knowledge of those rural customs to know that there is considerable delicacy and secrecy about them. In certain modern books dealing with sex relationships concealment is looked upon as deceit and decency as hypocrisy. Mr. Calverton tells us that for the Modern Youth (always written with admiring capitals) " decency has lost its spell ", and " cynicism has become the new faith ".1 Poor youth, unable to appreciate the flavour of an exquisite flower of life!
But while law hardly can recognise the trial union as a special institution side by side with ordinary marriage, it can incorporate its advantages by making divorce as easy as the dissolution of such a union. I cannot find that Dr. Bjerre's " free " marriage has much raison d'etre in his own country, Sweden, where a judicial separation can be obtained by mutual consent and such a separation may, upon the application of either husband or wife, be converted into a divorce after one year. The chief difference between a " free " union dissolvable by mutual agreement and ordinary marriage would apparently consist in the absence of compulsory registration of the former, and this would be of very doubtful value. There is evidence of this in some experience gained in the United States. In almost half of the states no marriage licence is required, the union of a man and a woman being considered valid if they make public admission of their relationship, that is, if they live together as husband and wife and acknowledge their union to their neighbours. This so-called common-law marriage is said to lead to gross exploitation, because without a record of the marriage there is often legal uncertainty of the status of wife and children. Dr. Nimkoff remarks that the modern movement is distinctly hostile to such marriage—to unions not publicly celebrated and recorded—and that they will presumably be outlawed in additional states.'
A very definite kind of trial marriage has been proposed by Dr. E. D. Cope, with a view to remove matrimonial changes from the domain of caprice and to permit them only after a full and fair trial. He maintains that this object can be attained by a system of civil marriage contracts which are of the same value and effect as the existing marriage contract, but run only for a definite time. The time limits of these contracts should increase rapidly in order to prevent women of mature years being deprived of support. The first contract ought not to run for less than five years, so as to give ample opportunity for acquaintance and for the recovery from temporary disagreements, and it should be terminable at the desire of either party. The second contract should run for ten or fifteen years, and should then lapse only by desire of both parties; and the third contract should provide for permanent relations. He thinks that " such a system would offer a safe opportunity for the correction of errors in matrimony, and a chance for the reorganisation and recommencement on a more hopeful basis of the lives of persons who have made such mistakes ". In his work, Die Wahlverwandtschaften, Goethe gives utterance to the idea of a temporary marriage by the mouth of the Count, who advises one of his friends that every marriage should be contracted for the term of five years only. " This number ", he says, " is a beautiful, sacred, odd number, and such a period of time would be sufficient for the married pair to learn to know one another, to bring a few children into the world, to separate, and, what would be most beautiful of all, to come together again ".
The first two or three years at least would pass very happily. Then very likely one member of the pair would wish that the union should be prolonged; and this desire would increase the more nearly the terminus of the marriage approached. An indifferent, nay even an unsatisfied, member of such a union would be pleased by such a demeanour on the part of the other; and when the allotted time had passed away, they might find, with agreeable surprise, that it had been tacitly prolonged.' Even a Christian philosopher, Charles Secretan, in his book, Le droit de la femme, approves of marriages contracted for a definite term of years.
Charlotte Burchow-Hohmeyer advocates such marriages, not as trial unions but as a solution of two particular social problems. She asks what provision could be made, within the existing social order, for the gratification on the one hand of man's polygynous disposition and on the other hand of woman's desire for motherhood, without giving offence to our ethical sentiments. Her answer is that this object could be attained by the institution of a Zeitehe, or temporary marriage, as a supplement to the present durable one. It might be limited to a period of five years, during which the husband had to be faithful to his wife and no divorce would be permitted; but the birth of a child would automatically extend the marriage by at least eight years. She hopes that such an arrangement would be helpful to young people and especially to the large number of women who otherwise would remain unmarried and barren. She admits that this temporary marriage may end as a tragedy for the wife, but she finds solace in the thought that transitory happiness is preferable to lifelong loneliness, and that the marriage of limited duration would chiefly be contracted by women to whom motherhood means more than the durable companionship of a husband. At the same time such a marriage might also be converted into a permanent one.
Marriages entered into for a fixed period are found among several uncivilised peoples; and among the ancient Arabs too, according to Ammianus Marcellinus, marriages were often contracted for a term of definite length, after which the wife might withdraw if she pleased. Somewhat of the same character is a temporary form of marriage which still exists in certain parts of Arabia. The Shi'ah Moslems recognise as legal marriages contracted for a certain limited period—a day, a month, a year, or any other specified term. Such a temporary contract of marriage, which is called ntut`ah, creates no right of inheritance in either party, although the children born of the union are legitimate and inherit from their parents like the issue of a permanent contract. The wife is not entitled to any maintenance unless it is expressly stipulated; the husband is entitled to refuse procreation, which he cannot do in ordinary marriages; and there is also this difference between a permanent and a temporary marriage, that in the case of the latter the husband has no power to divorce his wife, although the marriage may be dissolved by the mutual consent of the parties before the fixed period has expired. This temporary form of marriage exists in Persia to the present day, but is held to be unlawful by the Sunnis. Temporary marriages are recognised throughout Tibet, " whether contracted for six months, a month, or perhaps a week, and . . those unions are not held immoral ". In Abyssinia, also, there are marriages entered into for a fixed period, at the end of which husband and wife separate. In old Japan marriages could be contracted for five years in the case of persons of standing, and for a shorter term among the lower classes. We are told that it was very rare for a separation to take place when the term expired, and that such a separation hardly ever occurred if there were healthy children.
Temporary marriage may no doubt offer certain advantages. It may serve as a security for women in countries where the husband can divorce an ordinary wife whenever he pleases, as he is allowed to do according to Mohammedan law and as he could practically do in ancient Japan. It may also be a convenience to men like the pilgrims who tarry in Mecca for longer or shorter spaces of time, and can avail themselves of women who go there from Egypt for the avowed purpose of entering into such alliances. But among ourselves the kind of marriage advocated by Dr. Cope and Charlotte Burchow-Hohmeyer, which should be contracted for a term of five years and be indissoluble during this period, would deprive both parties of a right granted to all other married people. How serious this loss might be is indicated by American statistics, according to which the trend seems to be for divorces to occur during the first few years of marriage:' in 1931, for instance, 43.3 per cent. of all divorces were obtained during the first five years of married life, and the most common year for divorce is nowadays the fourth. Very similar. information comes from Sweden: the number of divorces which affected marriages of three or four years' duration was, in 1932, larger than the number of divorces that were related to any other corresponding group of marriages. Another objection is that marriages for a term of years, as Dr. Ellis points out, would not commend themselves to young lovers, who believe that their love is eternal; " nor, so long as the union proves satisfactory, is there any need to intro-duce the disturbing idea of a legal termination of the contract ".
There are other schemes advocating the recognition of sexual associations existing side by side with marriage as alternatives more suitable for certain persons. Grete Meisel-Hess admits that marriage as the permanent union of one man and one woman drawn together by an intimate harmony of physical and mental qualities is and must remain the ideal. But " since the garden of marriage fosters so many inimical growths, while the free intimacy fails to provide a favourable environment for the processes of the sexual life, and since the fact can no longer be ignored that permissibility of a change of sexual partnerships is indispensable, there will inevitably arise a tendency to restore concubinage to the position which, in virtue alike of its history and of its future developmental possibilities, properly attaches to the institution. . . . Concubinage is a temporary marriage, one that does not involve lifelong obligations, but is endowed with the most essential characteristic of marriage, namely, that the pair live openly together... . The old legal rights of concubinage must be restored; new duties must be imposed upon both the men and the women who enter into this relationship. . By the introduction of private contracts between the parties, formally made in the presence of a legally appointed official (such contracts as even today .are entered into by the parties to not a few free-unions), provision must be made to safeguard the woman from an entirely unconditional surrender. . . . And new duties must be imposed also upon the community which is so deeply concerned in the results of such unions. If only for the reason that society cannot evade all responsibility for the offspring of those living in concubinage, the relationship must involve the legal enforcement of certain duties, and of duties far more extensive than that now imposed upon the father to maintain his illegitimate children ". So also C. Gasquoine Hartley pleads for open recognition of partnerships outside of marriage, " not necessarily permanent, with proper provision for the woman and her children, should there be any, a provision . . . decided upon by the man and woman in the form of a contract before the relationships were entered upon She thinks that in this way many marriages would be prevented which inevitably would come to disaster.
A legally recognised concubinage would certainly imply the restoration of an ancient European institution. It occurred in Rome side by side with marriage. It was also a recognised institution in Christian Europe. In Germany it existed throughout the Middle Ages;' and according to Jutland law a concubine who for three years had openly shared bed and board with a man became his wedded wife. In England, late in the thirteenth century, Bracton speaks of the concubina legitima as entitled to certain rights and considerations; and among the clergy it prevailed universally, although it was the object of unremitting assault from councils and prelates. Elsewhere in Europe concubinage had so established itself among the clerical order that even the loftiest prelates shrunk from encountering the risk attendant upon an attempt to enforce the canons against it. In 1537 the Archbishop of Salzburg timidly suggested in a pastoral letter that if the clergy could not restrain their passions, they should at all events indulge them secretly, so that scandal might be avoided and the punishment of their transgressions be left to an avenging God. In Spain, in the thirteenth and following centuries, all attempts to suppress clerical concubinage were likewise in vain. It is easy to understand that where marriage is indissoluble, or as in the case of the Roman Catholic clergy, forbidden, concubinage is frequently resorted to and may, in spite of formal prohibitions, gain social recognition. In the State of South Carolina, where divorce is entirely prohibited, it has been necessary for the authorities to enact special legislation concerning the personal and property rights of extra-legal wives and children. Mr. Fellows writes: " Concubinage is licensed in England, for no effective law forbids it. By reason of the unfairness of our divorce laws it is extremely prevalent". There is thus a causal connection between the legislation concerning divorce and concubinage. Where the former is prohibitive, the latter has a useful function to fulfil, whereas a sufficiently liberal divorce law makes concubinage superfluous. Consequently, as there is reason to believe that in the future divorce will become as easy in the other Western countries as it already is in some of them, there is no reason to suppose that concubinage will reappear in our midst as a recognised social institution.