The information below is based on an article by Robina Trenbath [note 1] and we are grateful for her kind permission to use it.
‘Regular’ marriages in Scotland are defined as marriages performed by the clergy after the publication of banns. There were also ‘irregular’ marriages – Scottish law adopted the principle that consent alone made marriage. The law did not require the presence of a priest, nor the intervention of any religious ceremony. The law considered marriage to be a civil contract, but did not provide any particular mode by which that contract was to be proved [note 2].
Irregular marriages had the same legal consequences as regular marriages. There were three forms:
– A verbal agreement to be man and wife, given privately or informally. This was usually in the presence of a witness (though this was not a requirement).
– A promise of future marriage without exchange of consent, followed by ‘carnal intercourse’.
– Marriage by ‘cohabitation with habit and repute’ – essentially a couple behaving as husband and wife, and known as a common law marriage.
Irregular marriages remained valid until the Marriage (Scotland) Act 1939 [note 3] was passed; they allowed couples to marry outside the control of their parents. Scottish law held to the simple doctrine that any two unmarried people of lawful age [note 4] who wished to marry should be able to, provided they were physically capable and not within certain prohibited degrees of kinship.
Notes
1. Published in the June 2025 issue of New Zealand FamNet, see https://www.famnet.org.nz/newsletters/FamNet/June_2025/Newsletter.htm. See also Leah Leneman and Rosalind Mitchison, ‘Clandestine Marriage in the Scottish Cities 1660–1780’, Journal of Social History, vol. 26, No. 4 (Summer 1993), Leah Leneman, ‘Marriage North of the Border’, History Today, vol. 50, issue 4 (April 2000) and Leah Leneman, Promises, Promises: Marriage Litigation in Scotland 1698-1830, NMSE Publishing, 2003.
2. Discussion on the Registration of Births and Marriages (Scotland) Bill, Hansard, August 1848.
3. See https://www.scotlandspeople.gov.uk/article/irregular-marriage-scotland.
4. Until 1929 this was 12 for a girl and 14 for a boy.