Here's another article from the past, this time published two years ago in Discover Your Ancestors 2024 Bookazine - enjoy! (Some links have been updated)
Researching Marriages in Scotland
For centuries the institution of marriage had a different legal standing in Scotland than its equivalents in England, Wales and Ireland. In Scotland, the major requirement for two people seeking to marry was that they both consented to the arrangement, and that this consent was understood by both the church and the state, it having been expressed in the presence of witnesses. Under Scots Law, parental permission was not a requirement, whilst no celebrant was formally required until July 1940.
There were, however, other restrictions that could prevent a marriage in Scotland. The prospective spouses had to be beyond puberty and thus old enough to marry, with the minimum age for marriage fixed at 14 for boys and 12 for girls until 1929, at which point it was then raised to 16 (still the situation today). Another restriction was how closely the couple were related to each other, as defined by the rules of consanguinity laid out in the Old Testament book of Leviticus, Chapter 18, sometimes referred to as 'Leviticial Law' – for example, you could not marry a parent, your child, an aunt or uncle, although marriage between first cousins was often entertained. You also could not marry if already married, with bigamy a crime, historically punishable by imprisonment and even transportation. Under Scots Law, from 1567 onwards, marriages could also be annulled as a consequence of idiocy, insanity or impotency.
In the aftermath of the Reformation in 1560, the Presbyterian Kirk (Church of Scotland) did not consider marriage to be a sacrament, but still demanded it to be carried out under its auspices – the First Book of Discipline, written by reformer John Knox, noted "that marriages ought not to be secretly used, but in open face and public audience of the kirk". Banns had to be called on three successive Sundays prior to the wedding in the parish church of the intending parties (or churches, if from separate parishes), to facilitate public objections, with the money going to the parish poor roll. The minister had to perform the ceremony before witnesses, and often the congregation, although in time many weddings did not take place in the church building itself.
In many cases, the festivities surrounding marriage were a cause for concern with the Kirk, particularly with regards to so-called 'penny weddings', where labourers would abscond from their work for a day or longer, and throw a penny in the pot to pay for the festivities. The Reverend Alexander Johnston, minister of Monquhitter in Aberdeenshire, in a supplement to the parish’s Old Statistical Account, described how such an event occurred as follows: “When a pair were contracted they, for a stipulated consideration, bespoke the wedding dinner at a certain tavern, and then ranged the country in every direction to solicit guests. One, two, and even three hundred would convene on these occasions to make merry at their own expense for two or more days. This scene of feasting, drinking, dancing, wooing, fighting, was always enjoyed with the highest relish, and until obliterated by a similar scene, furnished ample materials for rural mirth and rural scandal.”
Kirk session registers, the records of the lowest of the church courts, document many instances of people being prosecuted for such activities, including such heinous acts as 'promiscuous dancing' or 'promissory dancing', sure to get many an elder hot under the collar. In many cases the Kirk demanded that a 'cautioner' (pronounced 'kayshoner') be appointed, effectively a guarantor who would stump up a small surety which could be forfeit if such activities occurred.
There were several regional customs around the country surrounding marriage. When Samuel Johnson visited the Hebridean island of Ulva in 1773, he noted an ancient custom carried out prior to the wedding of a virgin, whereby a tribute known as the ‘mercheta mulierum’ was paid to the chief of the MacQuarrie clan, in the form of a payment of a crown. Other island based wedding traditions include the drinking of ale on Orkney from wooden vessels known as ‘cogs’, still carried out to this day. With regards to planning a wedding, the months of April and November were deemed to be ‘lucky months’, whilst the month of May was considered by many to be deeply unlucky, particularly on May 14th, the old May Day. The tying and untying of knots before an after a marriage was also popular in some parishes, whilst the 'scramble' is another tradition still adhered to today, where coins are thrown into the air for children by the bride's party as it departs for the venue, or after the couple emerges from a venue as newly weds.
Whilst the state encouraged people to marry through the Kirk to make a marriage truly 'regular', it also tolerated other forms of 'irregular' marriage not sanctioned by the Kirk, well into the 20th and 21st century. The most common form of irregular marriage, which occurred without a celebrant, was described as a 'marriage by declaration', or by 'declaration de præsenti'. This simply involved a couple exchanging their consent before a witness or witnesses. In some parts of the country, such as in the taverns of Edinburgh's Canongate or Leith, 'celebrants' would offer to carry out a service for a fee and provide written lines to confirm that they had officiated at such an exchange – but in legal terms, they were not celebrants at all, they were simply witnesses. After Hardwicke's Act banned irregular marriage in England and Wales from 1754, many eloping couples from south of the border would cross into Scotland and similarly exchange their consent before the first willing witness they found. Most famously, such marriages happened at Gretna Green before a blacksmith performing an 'anvil wedding' to add a bit of pageantry to the proceedings, whereby the anvil would be struck as the couple were declared man and wife. Despite such ceremony, the blacksmith was only a witness in a legal sense. Other popular cross-border marriage spots included Coldstream and Lamberton Toll. Declaration de præsenti was abandoned as a legal form of marriage following the Marriage (Scotland) Act of 1939, which was enacted from July 1940.
Another form of irregular marriage was 'promise subsequente copula', also known to the Kirk as 'matrimonia praesumpta'. This was a marriage constituted on the basis of an exchange of a promise to marry, followed by sexual intercourse. The Kirk long considered this to be a betrothal, rather than marriage, but the state's courts did not agree. One ancient form occurred in the Western Isles, where a custom of 'handfasting' existed prior to the 16th century, allowing a couple to become betrothed for a year and a day. If in this period a child was born, then the couple were automatically deemed to have become married by promise subsequente copula. In Eskdalemuir in the Borders, a form of handfasting was culturally embedded until the late 17th century; at an annual fair there, single men and women could meet and take each other as betrothed spouses, to cohabitate for a year and a day. The practice emerged prior to the Reformation due to a lack of clergy in the area, but those who were so betrothed still had to be married by the priest to convert the betrothal into a valid marriage. Again, promise subsequente copula disappeared from statute in July 1940.
A further form of irregular marriage was that constituted 'by habit and repute'. In this, a couple living together as if they were married for more than twenty days, and considered to be married by those around them, were married in the eyes of the state. If anybody had a problem with the validity of such a union it was up to them to prove in the courts why they were not married, rather than the couple to prove that they were. This actually survived as a legal form of marriage in Scotland until its abolition by the Family Law (Scotland) Act 2006. Children born to couples married by habit and repute, as with all other forms of irregular marriage, were entirely legitimate. It is also worth noting that for many centuries any child born illegitimately in Scotland was legitimated by the subsequent marriage of their parents, if they had been free to conceive the child at the time (i.e. not in an adulterous relationship), something not permitted in England and Wales until 1929.
Even within the Kirk, some marriages could be irregular. Portpatrick Kirk in Wigtownshire, for example, regularly entertained marriages from eloping Irish couples, who sailed over from Donaghadee in County Down. The banns would be called in one day, and the marriage then performed irregularly, the banns not having been called on three successive Sundays, although this breach was often overlooked by the church hierarchy.
The Kirk had a real problem with irregular marriage, as it lost out on the fees paid for banns to be proclaimed, and the registers of the parishes' sessions are full of prosecutions of those who availed of them. Sanctions included fines, rebukes, and the loss of church benefits, such as the right to have any subsequent children baptised. As time progressed, other denominations emerged, who were prohibited from carrying out regular church weddings; if they did so, the ministers responsible could be prosecuted. If this happened, the marriage itself was again deemed to be 'irregular', but remained valid in the eyes of the state, as consent had still been exchanged between a couple before witnesses, the dissenting church minister being one of them.
The first exception to the status quo was the Toleration Act of 1712 (shortly after the 1707 Act of Union with England and Wales), which granted Scottish Episcopal Church ministers permission to carry out a marriage if prayers were also said for the Royal Family – the reason for this being that many Episcopalians were strongly Jacobite, with loyalties to the 'King over the water'. From The Marriage (Scotland) Act 1834 (Act 4 and 5 William IV c.28) other church denominations were given the right to carry out a regular marriage, as long as the banns were first proclaimed in the Church of Scotland parish church (although you will see examples of this even prior to 1834). It was not until 1879 that non-Church of Scotland denominations could call the banns in their own buildings for the same ends.
The civil registration of marriage by the state commenced in January 1855; a year later, a three week residency criteria was introduced to try to stop the cross-border irregular marriage trade. Regular marriages were recorded with the denomination noted and the banns called, or from 1879, with the issue of a 'marriage notice' as an alternative form of pre-publication to the banns. The names, ages, occupations, residences, and the marital status of both spouses, as well as details of their mothers and fathers, witnesses and the celebrant, were also recorded. Following the Marriage (Scotland) Act 1977, effective from January 1st 1978, banns were no longer accepted as a form of pre-publication, with marriage notices remaining the only requirement.
For the registration of an irregular marriage prior to 1940, couples and witnesses had to first appear before a local sheriff substitute within three months to obtain a warrant, upon examination and payment of a fine, to allow them permission to register it with the local registrar. The date of the warrant's issue will be recorded in the marriage record, and the fact that it was carried out by declaration in most cases. Following the abolition of most forms of irregular marriage from 1940, a registrar was now permitted to carry out civil marriage ceremonies, a provision first provided for in England and Wales over a century earlier, in July 1837. The most recent change to Scottish marriage law was introduced in 2014, permitting same sex marriage in the country.
Most church records of regular marriages are available on ScotlandsPeople (www.scotlandspeople.gov.uk), as are kirk session registers and civil marriage records (with an online closure period of 75 years to access images of more recent records). A guide to sources for irregular marriages is at www.nrscotland.gov.uk/learning-and-events/research-guides/irregular-border-marriage-registers/, with many marriages at Gretna Green documented in the 'Gretna Green, Scotland, Marriage Registers, 1794-1895' collection on Ancestry (www.ancestry.co.uk). Church marriage registers for some dissenting Presbyterian or nonconformist denominations may be held also at local county archives, or at the National Records of Scotland (www.nrscotland.gov.uk).
Chris
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