Unlike the rest of the UK, Scottish marriage laws were much more lenient. 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
Also unlike English and Irish laws, the main ingredient in making a marriage legal in Scotland was not whether the ceremony took place in a Kirk or registrar’s office, but rather, there had to be mutual consent. That’s it. I agree, you agree, let’s get married.
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. This 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. By the new law, at least one of the partners need to live in Scotland for 21 days before they could marry. This didn’t pose the level of deterrence that the lawmakers had anticipated.
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 and pay their fine. The couple would then go to the local sheriff court, tell the story to them and then receive a warrant to take to the registrar to have the marriage registered.
The Kirk session records have been digitized but at the moment they are only available at the Scotland’s People Centre in Edinburgh. It is anticipated that the Kirk Session records will be made available online early in 2017.
They will make some fascinating reading!