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Published online by Cambridge University Press: 29 October 2015
Scotland was unique in Western Europe in continuing to accord legal validity to irregular marriage until 1939 with one form of irregular marriage remaining legal until 2006. This article examines official attitudes to irregular marriage in Scotland in the period 1855–1939 as well as its incidence and popularity amongst the populace. The article argues that irregular marriage was narrowly defined by the authorities as meaning those irregular marriages that had been registered. Other forms of irregular marriage were often deemed to be cohabitation or concubinage which was regarded as morally reprehensible. However, authorities, including Poor Law officers, could also be flexible and sympathetic in their treatment of couples who lived together where the law was perceived to be rigid. Although it is impossible to quantify the numbers of couples who lived in non-registered informal unions, the evidence suggests that there were significant numbers but that in the majority of cases couples cohabited because they were unable to marry for legal, religious, or financial reasons.
1 Focus on Families, Office for National Statistics, 2007.
2 Ibid.
3 Robert Probert, History and family: setting the record straight (Centre for Social Justice, 2011); It's time to back marriage (Centre for Social Justice, 2012).
4 Anna Clark, The struggle for the breeches: gender and the making of the British working class (Berkeley, CA, 1997); Ginger S. Frost, Living in sin: cohabiting as husband and wife in nineteenth-century England (Manchester, 2008); John Gillis, For better, for worse: British marriages 1600 to the present (Oxford, 1985); Sonya Rose, Limited livelihoods: gender and class in nineteenth-century England (Berkeley, CA, 1992); Ellen Ross, Love and toil: motherhood in outcast London (Oxford, 1993); T. C. Smout, ‘Scottish marriage, regular and irregular, 1500–1940’, in R. B. Outhwaite, ed., Marriage and society: studies in the social history of marriage (London, 1981), pp. 204–36; P. Thane, Happy families? History and family policy (British Academy, 2010).
5 Goran Lind, Common law marriage: a legal institution for cohabitation (Oxford, 2008).
6 Report of the Royal Commission on the Laws of Marriage, PP 1867–8 (RCLM), pp. xvviii–xxix.
7 See Cameron, Anne, ‘The establishment of civil registration in Scotland’, Historical Journal, 50 (2007), pp. 377–95CrossRefGoogle ScholarPubMed; Brian Dempsey, ‘The Marriage (Scotland) Bill 1755’, in H. MacQueen, ed., Miscellany vi, 54, The Stair Society (2009), pp. 77–119.
8 Dempsey, Brian, ‘Making the Gretna blacksmith redundant: who worried, who spoke, who was heard on the abolition of irregular marriage in Scotland?’, Journal of Legal History, 30 (2009), pp. 23–52CrossRefGoogle Scholar.
9 RCLM, Appendix, evidence of the Corporation of Edinburgh and the Parochial Board of North Leith, p. 46.
10 Ibid., Appendix: Responses to Lord Chelmsford's Circular, evidence of James Stark, the City of Edinburgh Council and the Parochial Board of North Leith, pp. 4–5 and 46.
11 Ibid., evidence of James Stark, p. 5.
12 Ibid., evidence of N. Macpherson, Esquire, advocate, p. 128.
13 Ibid., evidence from the committee set up by the Free Church of Scotland to discuss the Marriage Laws, pp. 42–3 and evidence of the Rev. H. Renton, convenor of the Marriage Laws Committee of the Synod of the United Presbyterian Church of Scotland, p. 46.
14 Ibid., evidence of George Dalziel, General Assembly of the Free Church of Scotland, p. 43.
15 Report of RCLM, p. xxxiv.
16 RCML, Appendix, p. 4.
17 RCML, Appendix, evidence of the Rev. James Macfarlane, Moderator of the General Assembly of the Church of Scotland, p. 39.
18 Report of RCLM, p. 5.
19 RCML, evidence of George Seton, advocate, p. 89.
20 Ibid., evidence of J. Muirhead, Professor of Civil Law, University of Edinburgh, p. 113.
21 Ibid., evidence of Norman McPherson, Professor of Scots Law, University of Edinburgh, p. 122.
22 Ibid., evidence of the Right Honourable J. Moncrieff, p. 63.
23 See Gordon, Eleanor, ‘Irregular marriage: myth and reality’, Journal of Social History, 46 (2013), pp. 507–25CrossRefGoogle Scholar, for a full discussion of registered irregular marriages.
24 Ibid., p. 63.
25 Ibid., evidence of N. Macpherson, Esquire, advocate, p. 121.
26 Ibid., evidence of John Inglis, the lord justice general of Scotland, p. liv.
27 Report of the RCLM, p. xxxv. James Moncrieff, the lord justice general of Scotland dissented from the majority opinion and argued strongly in support of retaining irregular marriage because it encouraged regular marriage and the belief that the trend to uniformity throughout the United Kingdom might jeopardize the law of legitimation per subsequens matrimonium, p.1v.
28 See Gordon, ‘Irregular marriage’.
29 Report of the Departmental Committee Appointed to Enquire into the Law of Scotland relating to the Constitution of Marriage (Morison Report), Cmd 5354, memorandum by Andrew Froude, registrar general for Scotland.
30 Morison Report (MR), evidence of James Hutcheon, the assistant registrar of births for the parish of Gretna.
31 Ibid., evidence of Andrew Froude, registrar general for Scotland, to the MC, pp. 145–8. However, the evidence of the officials from the Department of Health contradicted this. See below.
32 Ibid., evidence of Kenneth Borland on behalf of the Scottish Laws Agents and the evidence of William MacLean, representative of the Society of Procurators.
33 Ibid., memorandum on irregular marriage in Scotland presented by the Church and Nation Committee of the Church of Scotland to the Government Committee of Enquiry into the Marriage Law of Scotland, p. 5.
34 Ibid., p. 3.
35 Ibid., p. 12.
36 MC, evidence of Kenneth Borland on behalf of the Scottish Laws Agents.
37 RCML, 1868, evidence of Patrick Fraser.
38 Over 100 years later, this distinction was still being observed by some legal authorities. See Mackenzie v. Scott, 20 June 1979, cited in Westlaw UK Scots Law (W. Green and Son Ltd, 2014). In this case, the pursuer lost her claim to have been legally married by habit and repute because the judge deemed that there was no evidence that she had exchanged consent with her partner or that they regarded themselves as legally married.
39 Poor Law records, 39 1924/5, Mitchell Library, Glasgow (MLG) , D-HEW 16/12/series.
40 Parish of Glasgow Collection of Prints, statistical report by the inspector of the poor to Glasgow parish council, MLG, T.PAR 1:12 vol. xxiv, May 1910.
41 Ibid., 16/12/36 1922/3.
42 The Scotsman, 30 Dec. 1914.
43 ‘Separation allowance for dependents of soldiers’, 1 July 1915, John Johnson Collection, The Bodleian Library, University of Oxford.
44 MC, précis of evidence of the Department of Health for Scotland.
45 Ibid., evidence of Miss Muriel Ritson, controller of pensions and insurance, Department of Health, p. 274.
46 Examiners' notes, registers of 1858, National Archive of Scotland (NAS), GRO 1–4.
47 MC, evidence of Robert Ramsay, p. 259.
48 Poor Law records, 12/9087/32/ 1921, Glasgow City Archive, D-HEW 16/12 series. It has been argued by Ginger Frost that in some cases bigamists could be treated leniently in recognition of the barriers that existed to divorce and the fact that bigamy implied a recognition of the importance of the married state. However, no analysis of the legal disposal of bigamy cases in Scotland exists that could confirm or challenge this interpretation.
49 Royal Commission on Divorce and Matrimonial Causes (RCDMC), 1912, précis of the evidence of the representative of the Church of Scotland.
50 Examiners' notes, registers of 1858, NAS, GRO 1–4.
51 Ibid.
52 Registrar general annual reports, Marriage patterns in Scotland, 1912–1918.
53 MC, evidence of L. S. Purves, registrar for the St Giles district of Edinburgh.
54 Registrar general annual reports, Marriage patterns, 1912–1939.
55 MC, evidence of Robert Ramsay, interim director of public assistance for Glasgow, pp. 264–5.
56 As noted earlier, the government adopted a more flexible policy at a later date and the ‘wives’ of unmarried soldiers were also granted separation allowance.
57 The Scotsman, 9 Dec. 1915.
58 Smout, ‘Scottish marriage’.
59 MC, evidence of Robert Ramsay to the MC, p. 226. In 1909, a papal encyclical forbidding marriage between Catholics and Protestants was issued which, according to Ramsay and the Church of Scotland representative to the RCDMC, 1912, resulted in some couples choosing to live together rather than give up their relationship.
60 Ibid.
61 Criminal Officers' Reports (Poor Law) Prosecutions for Desertion, Glasgow City Archive, D-Hew 32. These statistics include children who have been deserted as well as deserted wives and therefore inflate the number of wife desertions.
62 RCDMC, 1912, précis of the evidence of the representative of the Church of Scotland.
63 Ibid.
64 Parliamentary Papers: Court of Session, 1889–1939.
65 See Meagan Lee Butler, ‘“Husbands without wives, and wives without husbands”: divorce and separation in Scotland, c. 1830–1890’ (Ph.D. thesis, Glasgow, 2014), for a discussion of comparative costs between England and Scotland.
66 I am grateful to Andrea Thomson for providing me with this source, drawn from her Ph.D. research.
67 Poor Law Applications, 12/9775/35, GCA, D-HEW 16/12 series.
68 RCDMC, 1912, précis of evidence given by the Church of Scotland representative.
69 See Gordon, ‘Irregular marriage’, for a fuller discussion of the process involved in registering an irregular marriage.
70 Abrams, Lynn, ‘Concubinage, cohabitation and the law: class and gender relations in nineteenth-century Germany’, Gender and History, 5 (1993)CrossRefGoogle Scholar; Lind, Common law marriage.
71 Lind, Common law marriage; Thane, Happy families; Abrams, ‘Concubinage, cohabitation and the law’.
72 This was also common practice in some states of the United States when cohabitation was accepted as common law marriage. See Lind, Common law marriage.
73 See Gordon, ‘Irregular marriage’, for a discussion of the barriers to marriage in nineteenth- and early twentieth-century Scotland.
