The text below is based on an article by Leah Leneman published in the June 2025 issue of New Zealand FamNet [note 1].
‘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. 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.