Irregular Marriages

[DavidWW]

As is shown elsewhere in TS, there were several different forms of perfectly acceptable irregular marriage in Scotland.

Irregular in the sense that such marriages were perfectly valid in terms of Scots Law, although they may well have been illegal, especially at earlier dates, based on laws promoted and implemented by the Established Church of Scotland, - at various eras, the boundaries between the "canon" law of the Auld Kirk and the parliamentary Acts weren't always that clear

The most common form of irregular marriage, to use the old Scots Latin form, was "marriage per verba de praesenti ", involving the declaration of the couple to each other that they agreed to marry.

It is most often stated that such a declaration had to be in the presence of witnesses, which some sources have led me previously to doubt.

I'm currently involved as a lecturer and tutor in the Strathclyde University Postgraduate Certificate in Genealogical Studies.

This is quite fascinating for me, not least because it stretches me and my knowledge, not least in the sense that an answer along the lines of "I think.." or "I believe....." won't suffice.

This has led to a considerable amount of further reading on my part !

In this context, that involved the purchase of the basic work for students on a law course at a Scottish university, J M Thomson's "Family Law in Scotland", 1991, reprinted with Appendix 1993; the author being the Regius Professor of Law at Glasgow University.

Not always an easy book to read in terms of the many new "legal" words needed to be added to my vocabulary, never mind the many Latin phrases

In the context of this post Thomson is perfectly clear that a marriage by declaration in Scots Law - a marriage per verba de praesenti, - did not require witnesses.

However, quite obviously, the absence of such witnesses, made any subsequent attempt to prove the existence of the marriage that more difficult

David

[AnneM]

Eh!! Whoever suggested there had to be witnesses????

Anne

BTW There's a very recent edition of Thomson. Just last year I think.

[DavidWW]

Eh!! Whoever suggested there had to be witnesses????

Anne

BTW There's a very recent edition of Thomson. Just last year I think.

Many (genealogical) sources, including the Director of Studies of the Postgraduate Certificate in Genealogical Studies at Strathclyde Yoonie

Thanks for the info on last year's edition, but my second hand copy of the 1991 covers the time periods of interest to me

David

[AnneM]

That's scary.

How time flies anyway. The last edition was actually 2002!! Nope I was right the first time there is an edition in Aug 2006. I just have not saved up the £40+ quid it costs to buy it! The new one is the 5th Edition.

Not too hard a read, honestly.

Anne

[DavidWW]

.....snipped .............

Not too hard a read, honestly.

Anne

It's the very specific, Scottish, legal vocabulary, which had me frequently reaching for my dictionary for the meaning of many words that I'd never ever previously encounted , never mind the frequent Latin phrases , - OK, I'm of a generation who had to get Lower Latin in order to be permitted to apply for a place at a Scottish university, but that's an awfy long time ago ..... ....... .....

David

[vizagriz]

Eh!! Whoever suggested there had to be witnesses????

Many (genealogical) sources, including the Director of Studies of the Postgraduate Certificate in Genealogical Studies at Strathclyde Yoonie :!:

That's a reference to me, and of course I said no such thing. I'm afraid David's just picked me up wrong there.
What I actually said was, that of the four forms of valid but (at times) illegal marriages ("irregular marriages") marriage by habitation and repute is the one that doesn't come with any form of juridical proof, such as witness statements, affadavits, contracts etc. Therefore the fact of habitation and repute is taken as EVIDENCE of marriage, and is not an act of marriage in and of itself.

As far back as 1503, an Act made co-habitation and common repute suitable evidence of marriage which, if challenged, had the burden of proof on the denier. Even the Reformation did not prevent the extension of this idea to children claiming legitimacy or defending actions of illegitimacy. It has never been the case that co-habitation and repute themselves amounted to marriage, merely evidence of it.
The 1939 Marriage (Scotland) Act finally tidied up this anomaly, but there is a potential confusion in it. The act states (section 5):
"No irregular marriage by declaration de presenti or by promise subsequente copula contracted after the commencement of the Act shall be valid".

However, notice that marriage by co-habitation and repute is not mentioned. It was therefore, in theory at least, still recognised in Scotland and could be registered by obtaining a decree of Declaration of Marriage from the Court of Session. But since co-habitation and repute are only evidence of a marriage by consent without witnesses, it would be hard to justify unless there is evidence of co-habitation and repute before 1939, which means it is exactly as other forms of irregular marriage - recognised if contracted before the 1939 Act.

Bruce Durie, Academic Director, Genealogical Studies, University of Strathclyde (not "Director of Studies", note).

[DavidWW]

Crossed wires somewhere.

I'm not referring to marriage by habit and repute, but "marriage per verba de praesenti ", involving the declaration of the couple to each other that they agreed to marry.

A marriage by habit and repute, according to J M Thomson's "Family Law in Scotland", can never involve such an explicit declaration.

My memory is still that you clearly stated that witnesses were required for a "marriage per verba de praesenti", as do many other sources. Witnesses may well be preferable when proof via an entry in a statutory register of marriages is sought, either via conviction or Sheriff's Warrant, but are not required in Scots law for the marriage to be valid.

David

[AnneM]

The accepted view, including decided case law, is that marriage by cohab with habit and repute survived the 1939 Act. There is a respectable argument that it was abolished by implication but the authorities are clearly otherwise.

As you say there is a certain degree of confusion about whether the cohab with the repute provided evidence of the marriage by consent or constituted the marriage. The more recent authorities suggest the latter though that is not strictly logical.

It is now no longer possible to begin to contract such a marriage but actions can still be raised founding on cohab before the commencement of the Family Law (Scotland) Act 2006 s 3.

It should be noted that the cohab with the repute had to occur while the parties are free to marry and must take place in Scotland.

Having said that if someone is trying to prove that a marriage took place of which there is no surviving documentary evidence, e.g. a marriage which took place abroad, cohabitation with the belief by others that the couple were husband and wife can be used as evidence of the marriage. That is not at all the same thing as marriage by cohab with habit and repute but the use of the cohab as evidence of a marriage having taken place by other means.

Anne

[Russell]

Ooooh! Please keep this thread going. Its fascinating and proves, I feel, that even legally, nothing is ever absolutely clear cut, signed, sealed and delivered.

Thanks for joining in Bruce, you are most welcome to throw in the kind of information that many websites lack.

Anyone who says the legal stuff is dry needs their head looked

Russell

[DavidWW]

In terms of Bruce's first response, let me put it this way, I'm sure that Bruce is confident about what he said, and I'm equally confident about what I heard. (But see later in this post!)

Every genealogical reference work that I've ever read, or lecture that I've listened to has made it clear explicitly or implicity that a marriage by declaration only existed in the eyes of Scots Law if the required declaration was made in the presence of witnesses. Only on reading the accepted reference work J M Thomson's "Family Law in Scotland", did it become clear to me that there was no such requirement for witnesses to the declaration.


Sadly, but obviously a consequence of my deciding to read Chemical Engineering at Strathclyde University rather than Scots Law.


I strongly suspect that this is a situation where the fact that somewhere around 15% of marriages registered in the Scottish statutory registers of marriages in the early decades of the 20th century appear as marriages by declaration on the basis of a Sheriff's Warrant based on the evidence of two witnesses as shown in the marriage register entries, has been taken to mean that a marriage by declaration could not be valid unless there were such witnesses.

I'm not a lawyer , but am happy to accept J M Thomson's "Family Law in Scotland" as my reference work

If there are other reference works which express contrary opinions, then please let me know.

(An aspect which completely fascinated me on reading J M Thomson's "Family Law in Scotland" was that, for a marriage by habit and repute to be valid, there had to have been no previous explicit statement between the couple that they were married or to be married in the future, otherwise it would immediately become a marriage by declaration. Instead, everything had to be on an implied basis!)


But let's leave it that next time there's an evening international at Hampden Park, let's buy the first editions of the Glasgow morning newspapers at Glasgow Central when we get back there from Hampden, and experience the quite fascinating situation of reading three match reports each one of which refers to a quite different match from the one that we have just watched.

David