Was my Scottish forebear legally married?
QMy 4x great grandfather John Watson (1780–1864) was married to Janet Dodds (1786–1877) in Lamington, Scotland, on 25 May 1806. In the record of the marriage to his second wife Margaret Richie in 1817, it states that they were married “irregularly” by Pastor Toll. I have found several other irregular marriages.
I believe it was common for Scottish people to do this unless discovered (and fined) by the local sheriff.
Where no marriage is recorded, can it be assumed that a couple are married under the irregular rules, or are they just living together?
Loretta Cusworth
AVarious forms of Scottish irregular marriage were perfectly legal from the mid-16th century until 1940 and 2006.
The Church of Scotland (‘the Kirk’) required intending spouses to have banns proclaimed on three successive Sundays, and for a minister to perform the service if no objections were made, which constituted a ‘regular’ marriage. Additional issues that could prevent a marriage were one or both of the couple not being of legal age (12 for girls and 14 for boys – changing to 16 in 1929), and consanguinity
– ie they were too closely related (marriage between first cousins was an exception).
However, the state was less fussy. As long as a couple was of age, not closely related and able to freely exchange consent, an ‘irregular’ marriage was perfectly valid, with equal legal rights conveyed to those marrying and their offspring. This could be by an exchange of declared consent before witnesses, by betrothal followed by consummation (promise subsequente copula), or by habit and repute – ie living together as married and accepted as such. No celebrant was required, and neither was parental permission.
The Kirk opposed irregular marriage on religious and financial grounds. Anyone found to have married irregularly could be prosecuted through the kirk session (the church court), fined and rebuked. The existence of such cases in the session’s minutes can act as alternative proof that a couple was married. A refusal to accept discipline could prevent future children being baptised, even though they were legitimate.
Some Acts were passed to deter such unions, but they remained legal. When civil registration commenced in 1855, it was possible to register an irregular marriage with a registrar after a warrant was secured from the local sheriff-substitute in the county.
Marriages by declaration and by promise subsequente copula were abolished in 1940 following the 1939 Marriage (Scotland) Act, at which point registrars commenced civil marriages. Marriage by habit and repute was finally removed from statute with the 2006 Family Law (Scotland) Act.