Text 35, 101 rader
Skriven 2005-02-16 04:57:54 av Stephen Hayes (5:7106/20.0)
Ärende: Re: Scottish marriage by warrant of Sheriff Substitute
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* Forwarded (from: GEN_BRITAIN) by Stephen Hayes using timEd/2 1.10.y2k.
* Originally from Judy Philip (8:8/2003) to Roy Stockdill.
* Original dated: Mon Feb 14, 22:42

From: japhilip@ozemail.com.au (Judy Philip)

Roy,

The topic of "irregular marriage" in Scotland is fairly complex.

However, at the time you mention (1933), it would be fair (as you suggest) to
regard it as the equivalent of a "registry office" marriage - though at that
time "registry office" marriages didn't officially (legally) exist in Scotland.

What I am about to say is a gross over-simplification but I hope that it does
the trick for a summary (and that it is clearly understood that this is all it
aspires to be.  Perhaps I should also mention that I am an Australian in
Australia; my Scottish ancestor left there ca 1850 and the ancestor who most
recently arrived in Australia came ca 1890 having left Yorkshire for NZ in 1876
...).

The situation was that, until the Marriage (Scotland) Act 1939 came into effect
in July 1940, there was no such thing as civil marriage in Scotland (Scottish
Law is distinctive in quite a few areas).

Before this there were two sorts of marriages - both perfectly legal. A couple
could be married by a minister of religion (referred to as "regular" marriage)
or in several other ways (referred to as "irregular" marriage - "irregular", in
my view, being a very misleading word).
"Irregular" marriages could take place:
* by declaration in front of witnesses (taking advantage of the
principle in Scots law that marriage was constituted by mutual consent)
* by habit and repute (as described in the earlier response)
* by a promise of marriage followed by intercourse based on that
promise of marriage (as described in Latin in the earlier response).

How did the loaded word "irregular" (with its connotations to us of something
being not quite proper or legal) come to be applied to perfectly legal
marriages?  It seems to me to have arisen from much earlier days in the
Established Church of Scotland - people who had entered into the married state
without the benefit of clergy were often referred to very critically in the Old
Parish Registers as having been "irregularly" married (well, the ministers
obviously thought it was irregular!) and, having been suitably humbled, were
then "entered here married".  So the word "irregular" entered into the lexicon
for marriages not performed by ministers of religion. Unfortunately, that word
"irregular" has misled a lot of genealogists who have been concerned that there
was something "shonky" about their ancestors' marriages - when there wasn't at
all.

When Statutory Registration was introduced in Scotland in 1855, marriages by
ministers of religion were automatically registered.  But "irregular" marriages
were not - if people who had not been married by ministers of religion wanted
formal proof of their marriage and, specifically, wanted it recorded in the
Statutory Registers (and a marriage certificate), they first had to have the
fact that the marriage had taken place verified by Warrant of Sheriff
Substitute - sounds very grand and formal but was often, I have the impression
(especially in more recent times), little more than a rubber stamp.

As you can imagine, as time went on this was a far from satisfactory state of
affairs for people who didn't want to go through a religious form of marriage.
But it took until July 1940 for the Law to catch up with practice!

Meantime, there developed what I see as a "work-around".

A couple would make a time to go to the office of the local Sheriff
(Sheriff-Substitute) and would take two witnesses with them.  The form of
contract generally adopted was a simple written declaration of acceptance of
each other as husband and wife before two witnesses - and that form was often
drawn up by the Sheriff's office.  The Sheriff (or his representative) would
then issue a "warrant" (certification of the marriage) which the couple would
present to the Registrar who would officially record the marriage and issue a
certificate.  As in the case you describe, this often all happened on the same
day - both offices may even have been in the same building (perhaps
adjacent!!). Of course, it didn't have to happen like this (a Warrant could be
sought later) but I suspect that, in the 1900s, that was how it mostly happened
i.e. it was effectively the equivalent of a "civil" or "registry office" but
the processes had to be such as to comply with what was fairly obviously an
out-of-date law.

Here is a rather nice quote from a book "Scottish Roots" by Alwyn James, ISBN
0-88289-802-7
"Up until 1940, Scotland had a distinctive form of marriage, known rather
imprecisely as an irregular marriage. This, the so-called Gretna Green marriage
which lured panting English lovers north of the Border pursued by greybeard
kinsmen brandishing swords, was a perfectly acceptable alternative to the
conventional church wedding, involving instead a declaration in front of
witnesses or before a sheriff. The epithet "irregular" should not lead you to
believe that it was illegal or second-rate (it wasn't), or that it was indulged
in by a small minority: Dr. Ian Grant pointed out to me that in checking
through the first 200 marriages in Glasgow Blythswood for 1904, he counted 81,
more than 40 per cent, which were marriages by declaration."

Regards,

Judy

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