Historically, marriage in Scotland and England was very different. In England, marriage was considered a religious sacrament, whereas in Scotland, the only real requirement was based on consent. Neither a church ceremony or a civil ceremony were necessary for the marriage to be considered valid.
Under Scots law, there were three forms of "irregular marriage". An irregular marriage could result from:
- mutual agreement,
- a public promise followed by consummation
- cohabitation and repute
Traditionally, in Scotland, a man and woman over the age of sixteen could be married by declaring themselves husband and wife in front of witnesses. Laws in England were much more strict following an Act of Parliament in 1745. This then resulted in many young couples fleeing north of the border to Scotland in order to get married. Gretna Green was the first stagecoach changing post north of the Scottish Border on the main route between London and Edinburgh. This then became a very popular spot to marry.
Another Act of Parliament in 1857 (112 years later) imposed residential qualifications for those who married. At least one of the couple needed, by the new law, to live 21 days in the area before they could marry. This, too, became popular and people would happily take up residence in Gretna or another Scottish Border town for the necessary 3 weeks and then would be married, as planned.
While irregular marriages were frowned upon by the church, they were recognized as marriages in terms of inheritance laws and the children born of the union were considered to be legitimate.
If you can’t find your ancestor anywhere in the marriage registers or parish registers for the “Proclamation of Banns” they may have had an “irregular” marriage. Naturally, the church disliked irregular marriages for a variety of reasons (morality and finances being the major two). Often, the church would summon the couple before the Kirk session to take their penance, pay their fine, be married by the church and then be on their merry way. Kirk session records have been digitized but not indexed and at the moment they are only available at ScotlandsPeople Centre in Edinburgh. It is anticipated that the Kirk Session records will be made available online in 2017. After civil registration was introduced in 1855, irregular marriages could be registered. In order to do this, the couple needed to present themselves before a sheriff where they were considered to be 'convicted' parties to an irregular marriage. They then paid a fine and received a warrant to present to the registrar. Many found this route quicker and cheaper than going through the expense of banns and a regular church ceremony.
Generally, divorced persons could not remarry in a church so, prior to civil registration (which opened the door to civil marriages) an irregular marriage became the only real alternative.
While marriages did not need to take place in a church in order to be legal, there were rules around who could NOT marry:
Under Scots law, it was illegal to marry:
- an ancestor or descendant
- the ancestor or descendant of a previous spouse
- the former spouse of an ancestor or descendant
- a sibling
- an aunt/uncle
- a nephew/niece
- an adoptive parent
- an adopted child
You will often find a lot of marriages took place on December 31 or January 1. This was not for tax-break purposes, but rather because for 400 years, the Church of Scotland forbid the celebration of Christmas. Instead, “Hogmanay” or New Year’s Eve was the holiday to be celebrated and New Year’s Day was a holiday from work. Knowing this, couples often planned their weddings accordingly so that family could attend without worry of having to work.