Irregular Marriages

[donna petrie]

HI: I have no learned opinion to add to this discussion ; just some findings. In a kirk session record I read that a couple had given the local minister a "piece of paper dated 1795 in Edinburgh, that they were man and wife". The result of which was " they were admonished to live hereafter as befits the married state". But they were not married by said minister and no banns were called. I have seen this at least 10 times in the old records. Donna

[vizagriz]

HI: I have no learned opinion to add to this discussion ; just some findings. In a kirk session record I read that a couple had given the local minister a "piece of paper dated 1795 in Edinburgh, that they were man and wife". The result of which was " they were admonished to live hereafter as befits the married state". But they were not married by said minister and no banns were called. I have seen this at least 10 times in the old records. Donna

Interesting, that. Quite possibly a "Canongate marriage", many of which were performed in the White Horse Inn, but also in other taverns, including the White Hart in the Grassmarket. There was a chap called James Wilson, or Claudero and known as the High Priest of Canongate (actually an ex-schoolteacher).

Often the parties were drovers or hawkers, so the "celebrants" were nicknamed "buckle-the-beggars".

You will also find a great many irregular marriages in the South Leith kirk sessions. Marshall lists over 1500 between 1697 and 1818 (Calendar of Irregular Marriages in the South Leith Kirk Session Records 1697-1818, Scottish record Society 1968).

Some of these records separately record the celebrant and witnesses, but as these were in effect marriage by consent before witnesses, the celebrant was legally just another witness.

Bruce Durie

[Russell]

Hi Donna
I have come across quite a few Fife records where the couple, following an 'irregular' marriage in Edinburgh, were summonsed to appear before the Kilrenny Kirk Session and explain their actions. Each time the Session accepted their explanation and confirmed their acceptance of the marriage without imposing any sanctions on the various couples. Obviously some Kirk Sessions were more liberal in their views or more aware of the marriage options in Scotland.

Russell

[AnneM]

Hi all

I've had the chance to have a look at my books so here goes on some of what seems to be the case on irregular marriage

For marriage by promise followed by copulation, firstly on what is meant to say that something has to be proved by writ of oath. That means that the only means of proof that can be accepted are a writing by the person alleged to have made the promise of marriage or by putting him on a special oath in court. There is no need for there to have been witnesses to the promise and in fact their existence is highly unlikely as few people propose in public except those who get "Charlene, will you marry me" put up on the scoreboard at half time at football matches! Given that this was probably not possible before 1940 when this form of marriage was abolished it probably is not an issue but the bizarre thing is that if there was no writing by the promisor and if he denied having made the promise on oath the marriage could not be proved despite the promise having been made in front of 20,000 witnesses. The sexual intercourse following on the promise can be proved by any competent means but again that is something which people (mercifully) rarely do in public (and presumably even less frequently at football matches) so proof may be a bit of a problem!

I've also been refreshing my memory about cohab by habit and repute and have ascertained the following

1. that what constitutes the marriage in such a case is tacit consent to marry together with sufficient cohabitation and largely undivided repute to raise the presumption that such tacit consent has taken place. If sufficiently long cohabitation and sufficiently undivided repute can be proved then the presumption is raised that at some point the parties tacitly consented to be husband and wife. This presumption can be rebutted if there is clear evidence to the contrary.

2. that such a marriage survived 1940 unlike the other 2 forms of irregular marriage. I understand that during the passage of the 1939 Act there was an attempt to include marriage by cohab by habit and repute but this was defeated. There have since then undoubtedly been cases in which parties were found to be married in this manner, many of which I have had the misfortune to have to read for one reason or another in my time. After all if it did not exist there would be no reason to have to abolish any new formation thereof in the 2006 Act.

It is I think important not to confuse what is legally the case and what can be proved as they are not at least theoretically one and the same. After all if someone hits a child with the intention of injuring her then that person has committed an assault. The hitting and the injury are physical facts the assertion that the person has committed an assault is a legal assertion. However even on my standard of proof I may not be able to prove it but that does not take away from the fact that it is actually the case.

I would agree that if consent is tacit there can be no witnesses to the consent (unless the couple come from a long line of psychics). However the cohabitation and repute are essential components of the marriage and for these components one needs witnesses and as many of them as possible. The evidence of the cohab and repute raises the presumption that the consent has taken place.

For all or most of this information I remain forever indebted to my erstwhile Family Law tutor Dr Eric Clive in his book "Husband and Wife".

Anne