The Law

Shetland weddingThe laws of marriage were quite different in England and Scotland. In England, marriage was a religious sacrament as well as a legal contract, and a marriage was not legal unless celebrated by a minister of religion and in the parish church. Only Jews and Quakers were exempt from this regulation, which aimed to prevent irregular marriages, or marriages conducted by non-Anglican clergy.

(Image: Shetland wedding procession, courtesy of the Shetland Museum Photographic Archive.)

In 1836, a Marriage Act was passed alongside the Registration Act for England, and this allowed civil marriages in the register office in the presence of the superintendent registrar. Church of England clergy still had privileges: they could keep their own register of marriages and send a copy to the local registrar; but non-Anglican couples who married in their own church also had to marry in a register office, as did those who did not want a religious ceremony. This continued until 1898, when Nonconformist ministers were authorized to conduct legal marriages in their chapels, and report them to the registrar.

Scotland was famous for its distinctive marriage arrangements, which owed much to pre-Reformation canon law, and were based on principles of mutual consent rather than religious ceremony. Both 'regular' and 'irregular' marriages were recognised by the law. A 'regular' church marriage, requiring marriage banns to be read in the church some weeks in advance, was the usual practice, and from 1834 'priests and ministers not of the established church' were also allowed to conduct legal marriage ceremonies. In Scotland, regular marriages did not have to take place within a church building; indeed, they were more likely to take place in private homes. Even so, at first sight, Scotland's system seemed more religious in practice than England's, because civil ceremonies in a register office were not possible until after an Act of Parliament in 1939.

But Scotland's fame for distinctive marriage practices stemmed from 'irregular' marriages. There were three ways of forming a legal marriage without banns or a minister being present.

  1. A couple were legally married if they declared themselves to be so in front of witnesses, regardless of whether this was followed by a sexual connection. Marriage contracted in this way without witnesses was also legal, but much harder to prove in court unless there was other evidence, such as letters that confirmed what the couple had done.
  2. A promise of marriage, followed by a sexual relationship, was regarded as a legal marriage - but this had to be backed up by some kind of proof, such as a written promise of marriage, or an oath sworn before witnesses.
  3. Marriages 'by habit and repute' were also legal if a couple usually presented themselves in public as husband and wife, even if no formal declaration of marriage was made.

Irregular marriages were frowned on by law and the churches, and couples who admitted to them were fined, but they had the same inheritance rights as regularly married couples, and their children were legitimate. Although the Church of Scotland did not approve of irregular marriages, it tolerated them because it feared that if the law did not recognize such relationships, the couple would end up 'living in sin.' The system was believed to protect women from unscrupulous men who might seduce them with promises of marriage or fake wedding ceremonies. After registration was introduced, an irregular marriage could be registered if the couple presented themselves before a sheriff or magistrate, were 'convicted' as parties to an irregular marriage, and paid a fine. Some found it quicker and cheaper to have their irregular marriage entered in the schedules by the registrar under sheriff's warrant than to go through the expense of banns and a regular marriage ceremony. Marriages established in court by a Decree of Declarator could also be registered, on production to the registrar of an extract of the Decree and payment of £1, but this was not common. In fact, irregular marriages notified to the registrar were infrequent in Scotland in the mid-nineteenth century, and fewer than 100 per year took place between 1855 and 1870. After that, the numbers rose steadily, and then rapidly in the early twentieth century, until they accounted for over 12% of all Scottish marriages in the registers in 1914. They remained at this level until the Second World War. Contrary to the national myth, most took place not on the Scottish border, but in the larger towns. This may have been due to a decline in the influence of the churches, or to the relative cheapness of 'irregular' marriages, but it also reflected the growing number of divorces. Since many churches would not remarry a divorced person, and civil marriage was not possible in Scotland, couples in this position had no alternative but to marry by sheriff's warrant. Although so-called 'irregular' marriage by sheriff's warrant technically attracted a 'fine' until the law was changed in 1916, it was becoming a more frequent legal alternative to a church ceremony. In 1939, marriage registered by sheriff's warrant ended, and it was possible, as in England, to marry by a civil ceremony in the registrar's office. Legal textbooks described all types of marriage outside the churches as 'irregular' until the early twentieth century, but, given the rise in numbers of marriage through sheriff's warrant, the public no longer saw anything irregular in the proceedings.

The Registrar General's annual reports give the figures for 'irregular' marriages as notified to the registrars through the sheriffs, but it is very difficult to calculate the number of 'irregular' but entirely legal marriages that were never notified in this way. They tended to come to public attention in court cases involving property, when one of the partners wished to deny that a marriage had taken place, but these cases, which were not common, must have reflected only a small number of relationships that were legally recognised, but did not appear in the registers. Unlike marriages notified to the sheriff, other types of 'irregular' marriage were sometimes hard to prove. A close study of Scottish birth certificates might tell us more about how common this type of marriage was.

Gretna Green: A National Obsession

Old toll bar, GretnaIn 1753, Hardwicke's Marriage Act banned irregular marriages in England, but not in Scotland. An irregular, though legal, marriage could be contracted in Scotland without prior formalities or previous residence requirements. Nor was parental consent required for those under the age of 21, and marriages were legal for girls as young as 12, and boys as young as 14, until 1929, when the marriage age was raised to 16. English couples wishing to marry in a hurry could opt for a 'runaway marriage' north of the border. The blacksmith's anvil at Gretna Green became the most famous location for such marriages, but there were several 'marriage houses' with 'marriage parlours' in other border towns, such as Berwick on Tweed and Lamberton.

(Image: Old Toll House, Gretna Green, advertising its marriage facilities. Courtesy of the University of St Andrews Library, Special Collections Department.)

In fact, border marriages were not common amongst the Scots, and many Scottish lawyers were irritated by Scotland's reputation for condoning such improper practices. As we have seen in the section on the Scottish Registration Act, registration in Scotland was held up for many years because of attempts to link it to reform of the Scots law of marriage. Although the Act of 1854 finally passed partly because it did not make any changes to the marriage laws, a Marriage (Scotland) Act rapidly followed it in 1856. This insisted that at least one of the partners live in Scotland for a minimum of 21 days before marriage, which reduced the attractiveness and convenience of border marriages.

Berwick CottageBut the Scottish reputation for runaway marriages persisted, as this early twentieth-century postcard of the marriage house near Berwick on Tweed, on the Scotland-England border shows.

(Image: Berwick 'Marriage House', courtesy of the University of St Andrews Library, Special Collections Department.)

The English seem to have been more obsessed with Gretna Green and runaway marriages than the Scots. A summary of the annual report of the Registrar General for Scotland was usually given in the Times, often with comments about the peculiarity of Scottish marriage. Runaway marriages were a staple of English fiction, though fans of Pride and Prejudice will remember how distressed the Bennets were to find that their flighty daughter Lydia had not gone to Gretna with her lover, but was living with him in London. Wilkie Collins frequently used the oddities of Scots marriage law in his popular and sensational novels. Man and Wife (1870) hinged on an unwilling marriage contracted 'accidentally' when a blameless couple briefly pretended to be married to preserve their reputations when stranded for a night in a Scottish inn. In fact, no such brief pretence would have been recognized as a marriage under Scots law.

The Registrars General for Scotland were constantly irritated by border marriages, partly because as lawyers and churchmen they disapproved of such irregular proceedings, but also because there were legal problems. Couples who did not follow up their visit to Gretna by having their marriage registered through a sheriff or magistrate, sometimes had difficulty in producing proof of their marriage in later years. Proprietors of 'marriage houses' came and went, and the lists of couples who married in front of witnesses in these houses were not always well preserved. The lists sometimes ended up on the open market, where they fetched good sums for their curiosity value. Several Registrars General had to seek Treasury permission to buy these books, and grumbled at the expense.

The high point of border marriages was probably the 1930s, in a less religious age, when motor transport and the expansion of local hotels made a visit to Gretna Green seem romantic and attractive. The Registrar General greatly disapproved of this, and complained that couples were getting married at Gretna 'for the novelty of the thing'. Border marriages were profitable for hotels and marriage parlours, but reckless couples still sometimes failed to complete the legal formalities for registration, and ended up without proof of a valid marriage. The same Act that permitted civil marriage in the registrar's office brought border marriages to an end.

Scottish Registrars and Marriage

Dundee weddingPeople can choose whether or not to get married (though not to be born or to die), and for this reason, local registrars were allowed to charge newlyweds a fee for an extract of their marriage registration (i.e. a marriage certificate). Informants of a birth or death received an extract for free.

(Image: Dundee society wedding, 1920s, courtesy of Dundee University Archives.)

In the early years of registration, the fees that Scottish registrars received for marriage certificates were not generous. In England, registrars received a fee of five shillings (25p) and more if the marriage was by special license. This was a good sum by the standards of the time: about a quarter of a working man's weekly wage. In Scotland the set fee was one shilling (5p), and the registrars were very annoyed at being paid so much less than their English counterparts. Scottish couples could also ask the registrar to attend their marriage ceremony in person and register the event then and there, so long as they gave him 48 hours' written notice. The registrar was entitled to charge a fee of £1 for such attendance, plus another sixpence for every mile he travelled. Many registrars had expected that this would supplement their meagre incomes; but in most parishes such invitations never happened, and when they did, the parties were sometimes so poor that the registrar never received his money.

At first, the Registrar General also had to deal with problems caused by ministers. Under the Scottish Registration Act of 1854, every couple marrying regularly had to fill up a Marriage Schedule, have it signed by the officiating minister and the witnesses to the marriage, and send it within three days to the registrar of the parish where the marriage took place. Since in the early days some couples were illiterate, or had difficulty filling in the schedule, the minister could fill it in for them, and check the details, but there was no legal compulsion on him to do this properly, and some ministers were slow, or careless, about their duties. Bad handwriting was a frequent problem. In the Highland parish of Kiltarlity, the registrar (the local schoolmaster) had so much difficulty extracting information from the Free Church Minister that the registration examiner tried to intervene:

'As the [marriage] schedules were so imperfect, I intimated to the Registrar my intention of calling upon the Free Church Minister; but he advised me not to do so, as I should, at least, be insulted.'

Similar complaints were still being made at the end of the nineteenth century, but much less frequently.

The early examiners were very interested in the moral state of their territories, and marriages were a key feature in this. Social customs in Banff caused much concern:

'The proportion [of marriages] in the seaboard parishes is always below what it might be, owing to the habit of the fishing populations. Among this class, sexual intercourse frequently takes place before marriage, but a child is seldom brought into the world before the parents are linked in the bond of matrimony; indeed, it seems to be the custom that the breeding powers of the woman are tested before she is considered fit to be a wife.'

In Roxburghshire, couples were less scrupulous, and the illegitimacy rate was very high. The examiners pointed out, however, that many registrars followed the common custom of calling the mother by her maiden name after marriage, and it was sometimes hard to tell from the entry in the birth register whether the parents were married or not. In small communities where the registrars knew everyone, errors in the registers could be easily corrected, but in large communities this was more difficult. The registrars did not have to ask for proof of marriage when registering a birth, and a couple might register a child as legitimate without too many questions being asked. The deception would be discovered only if the parents' marriage certificate was later required for legal reasons.

During the First and Second World Wars, the registrars received a number of queries about whether 'marriages by proxy' were legal. The situation usually arose when a girlfriend or fiancée of a man on active service found herself to be pregnant. In the First World War, the French and some other nations legalized such marriages if both parties made a declaration in front of witnesses, even in different countries. The Registrar General was under pressure to find a way round this problem, as one clergyman wrote to him in 1916 about one of his parishioners in the forces:

' . . . while he was home on leave he got his fiancée into trouble and she is "expecting". He is to put her right and acknowledge the child but there is no chance of his getting home. Of course, if he returns home alive things may be set straight, but if he is killed she is left a dishonoured woman and the child illegitimate.'

The Registrar General pointed out that in Scotland birth registration could be delayed for three months, giving the parents time to get married and make the baby legitimate, but this hardly solved the problem if the father were killed before he could get home. In spite of all such requests, the GROS did not permit marriage by proxy.