Though Lydia’s short letter to Mrs. F. gave them to understand that they were going to Gretna Green, something was dropped by Denny expressing his belief that W. never intended to go there, or to marry Lydia at all, which was repeated to Colonel F. who instantly taking the alarm, set off from B, intending to trace their route. He did trace them easily to Clapham, but no further, for on entering that place they removed into a hackney coach, and dismissed the chaise that brought them from Epsom. (Austen, Pride and Prejudice)
What writer of Regency novels hasn’t read this letter to Lizzie? This scene of the notorious dash to Gretna Green to be married over the anvil and
the pursuit by outraged family members has made its way into many modern Regency novels.
But what if your novel was set in Scotland? What did a Scottish lassie do when she wanted to marry against her parents’ wishes? It was certainly not necessary to go to Gretna Green, Berwick-on-Tweed, or Lamberton, where marriages took place in the Toll House from 1798 to 1858.
A webpage through the University of Glasgow, The Scottish Way of Birth and Death explores the differences between English and Scottish marriage practices, both past and present. It is worth reading the whole page as it has many fascinating details about the social customs of not only marriage but birth and death in Scotland.
Scotland was famous for its distinctive marriage arrangements, which owed much to pre-Reformation canon law, and were based on principles of mutual consent rather than religious ceremony. Both 'regular' and 'irregular' marriages were recognised by the law. A 'regular' church marriage, requiring marriage banns to be read in the church some weeks in advance, was the usual practice, and from 1834 'priests and ministers not of the established church' were also allowed to conduct legal marriage ceremonies. In Scotland, regular marriages did not have to take place within a church building; indeed, they were more likely to take place in private homes.
There were three ways to perform a legal irregular marriage:
A couple were legally married if they declared themselves to be so in front of witnesses, regardless of whether this was followed by a sexual connection. Marriage contracted in this way without witnesses was also legal, but much harder to prove in court unless there was other evidence, such as letters that confirmed what the couple had done.
A promise of marriage, followed by a sexual relationship, was regarded as a legal marriage - but this had to be backed up by some kind of proof, such as a written promise of marriage, or an oath sworn before witnesses.
Marriages 'by habit and repute' were also legal if a couple usually presented themselves in public as husband and wife, even if no formal declaration of marriage was made.
One of the most important aspects of the irregular marriages was the necessity of recording the marriage with the sheriff to make it legal. And, there was the good possibility especially of the English who came across the border who’d forget or not complete this part of the marriage. Oftentimes a fine was extracted, but as it was cheaper than the fee for a church wedding, many more lower class couples entered into an irregular marriage but would marry in the kirk later. (The Scottish Way)
Like England, banns were read over the pulpit three weeks in advance before the marriage ceremony took place. Oftentimes, you’ll see two dates in a parish record, the first being a marriage bann, the second when the actual marriage took place. However, the stern Presbyterian kirk frowned upon irregular marriages but recognized them so that the couple were not “living in sin.” An upper-class family would still find fault with such a marriage, especially if inheritances were involved, and would certainly do all in their power to avoid such a marriage or get it annulled.
In spite of the loose nature of the marriage laws, children were still born out of wedlock and in order for the child to be legitimized and baptized the errant couple were brought before the Kirk Sessions, a meeting of the minister and appointed lay officers such as elders and deacons. The couple, or more frequently, the woman, was given the opportunity to confess her sin before the session and, in earlier times, had to sit in front of the congregation for three Sundays on the repentance stool. (I use such a scene in my novel, Joy to My Love and I also have an irregular wedding performed. I have elaborated a little more on the Kirk Sessions in my blog, https://www.karenmedwards.com/blog/ kirk-sessions-repentance-stool) Kirk Sessions seem to have taken place more frequently in the Lowlands where the Presbyterian church was stronger.
Handfasting and Betrothal Ceremonies
You may already have heard about handfasting that was quite common in earlier times in the Highlands of Scotland. This was a sort of irregular marriage which “allowed a couple to declare their intention at a simple formality that usually took place at the Lammas fair, then live together publicly for a year. If it all worked out favourably they were married a year and a day after they handfasted. (Bennett, p. 108). Lammas is a harvest fair usually held between 1 August and 1 September.
If a child was born of the handfasting and the parents went their separate ways, the father usually took the child into the household and it was not considered illegitimate. Handfasting seems to have taken place in the Highlands among the clan system there rather than the Lowlands. Bennett collected several accounts of this practice from Western Isles in 1695, Isle of Skye, 1774, and Perthshire, 1931. (Bennett, pp. 107-115)
An article, “Tying the Knot: Handfasting Through the Ages,” from the BBC Scotland website, has more information on handfasting and some facts and myths about it. And, if you google “handfasting,” you’ll find sites about how to do a modern handfasting.
Betrothals were almost as binding as weddings. In the Highlands there was a réiteach (agreement)/wedding arrangement; it was sort of equivalent to an engagement party. According to one account it was a third party who asked for the interested groom, but they asked for the lassie’s hand obliquely. For example, in a farming community the speaker for the intended might ask to take a ewe lamb off the father’s hands, or in a fishing community, the father might reply that he was willing to give him “the boat that had never been used by anybody else . . . And that he was welcome to take her, and sail her in calm waters.” (Bennett, p. 111).
A 1774 account in Orkney reports that a couple would clasp each other’s right hands through a hole in a special stone (Stone of Odin) and they “swore to be constant and faithful to each other. . . . the person who dared to break the engagement made there was counted infamous, and excluded from all society.” (Bennett, p. 110).
Divorce or Annulment
Divorce even until the middle of the 20th century was unacceptable so once a person married it was for life until the partner died, especially in a regular marriage. There’s a saying that gives a warning about making a good marriage in the first place: “Ye hae tied a knot wi’ your tongue you winna loose wi’ your teeth.”(Bennett, p. 93).
Untying the knot was difficult but like the marriage laws, Scottish divorce and annulment laws were different from England.
The Church of Scotland had since the Reformation accepted divorce on the grounds of adultery, and later added the grounds of desertion for more than four years. From 1830, Scottish divorces were decided by the Court of Session, like other cases in civil law. Both men and women could seek divorce for adultery or desertion. This was different from the law of England, where men could divorce their wives for adultery, but women did not have the same right until 1923, unless there were other serious offences involved. Divorce for desertion was not possible in England until 1937. (Scottish Way of Birth and Death)
For an irregular marriage, the main way the contract was annulled was by desertion.
If you have a Scottish Wickham-like character, do some research about how he can achieve his aims and can be thwarted according to Scottish marriage laws. If you are writing a book set in Scotland, learn about the different customs, and, as a side note, if your book is in the Highlands and you use Gaelic words or phrases, make sure it’s Scottish Gaelic (pronounced gallick) and not Irish Gaelic. Though they’re closely related, they are different.
I have only scratched the surface of information on marriage laws in Scotland and have included a bibliography of the sources I’ve referred to as well as additional links that might be useful.
Bennett’s book has a wealth of information with all kinds of local customs like jumping the besom (broom) and washing feet. I highly recommend buying it if your books are going to be set in Scotland; you may be able to find it in a library or at least through interlibrary loan at a university or local library.
Bennett, M. (2004) Scottish Customs from the Cradle to Grave. Edinburgh, Scotland: Birlinn Limited
Scottish Way of Birth and Death, University of Glasgow (https://www.gla.ac.uk/schools/socialpolitical/research/economicsocialhistory/historymedicine/scottishwayofbirthanddeath/marriage/)
“Tying the Knot: Handfasting Through the Ages” (April 2011) BBC: Scotland http://www.bbc.co.uk/scotland/history/tying_the_knot_handfasting_through_the_ages.shtml
Gordon, E. (2013) “Irregular Marriage: Myth and Reality” Journal of Social History. https://academic.oup.com/jsh/article/47/2/507/1325355
Leneman, L. and R. Mitchison. (1993) Clandestine Marriage in the Scottish Cities 1660-1780 Journal of Social History Vol. 26, No. 4 (Summer, 1993), pp. 845-861 https://www.jstor.org/stable/3788783?seq=1#page_scan_tab_contents