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From: Stephen Hayes
To: All
Date: 2005-02-16 04:57:54
Subject: Re: Scottish marriage by warrant of Sheriff Substitute

* 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{at}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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