Marriage in Scotland

David Allan's painting of Highland wedding from 1780

In the late Middle Ages and early modern era, girls could marry from the age of 12 (while for boys it was from 14) and, while many girls from the social elite married in their teens, most in the Lowlands married only after a period of life-cycle service, in their twenties.[3] In some cases, marriage may have followed handfasting, a period of betrothal, which in the Highlands may have effectively been a period of trial marriage,[4] although recent scholarship suggests this idea is the result of late 20th-century New Age mythology.[5] Marriages, particularly higher in society, were often political in nature and the subject of complex negotiations over the tocher (dowry). Some mothers took a leading role in negotiating marriages, as Lady Glenorchy did for her children in the 1560s and 1570s, or as matchmakers, finding suitable and compatible partners for others.[6]

In the Middle Ages, marriage was a sacrament and the key element in validity was consent. The sacramental status was removed at the Reformation, but the centrality of consent remained.[7] Weddings were often elaborate occasions for public celebration and feasting.[8] Among the poor the tradition of the penny wedding developed, by which guests contributed to the costs of occasion, with a meal after the ceremony, sometimes followed by music and dancing.[9]

In the early modern era there was a stress on a wife's duties to her husband and on the virtues of chastity and obedience. How exactly patriarchy worked in practice is difficult to discern. Scottish women in this period had something of a reputation among foreign observers for being forthright individuals, with Pedro de Ayala, the Spanish ambassador to the court of James IV, noting that they were "absolute mistresses of their houses and even their husbands".[10]

Before the Reformation, the extensive marriage bars for kinship meant that most noble marriages necessitated a papal dispensation, which could later be used as grounds for annulment if the marriage proved politically or personally inconvenient, although there was no divorce as such.[6] After the mid-sixteenth century these were reduced to those in Leviticus 13: 4-13, which limited them to relationships in the second degree of kinship. Separation from bed and board continued to be allowed in exceptional circumstances, usually adultery and under the reformed Kirk divorce was allowed on grounds of adultery or desertion. Scotland was one of the first countries to allow desertion as legal grounds for divorce and, unlike England, divorce cases were initiated relatively far down the social scale.[11]

19th-century painting of a "penny wedding", one at which the guests contributed money to pay for the cost of the ceremony and to benefit the couple

Under early modern Scots law, there were three forms of "irregular marriage" which can be summarised as the agreement of the couple to be married and some form of witnessing or evidence of such. An irregular marriage could result from mutual agreement, by a public promise followed by consummation, or by cohabitation with habit and repute.[12] All but the last of these were abolished by the Marriage (Scotland) Act 1939, from 1 July 1940. Prior to this act, any citizen was able to witness a public promise. The tradition of eloping English couples searching for blacksmiths resulted legally from the fact that blacksmiths were necessarily citizens and could often be recognised by strangers by their presence at their forge.

A marriage by "cohabitation with habit and repute", as it was known in Scots law, could still be formed; popularly described as "by habit and repute", with repute being the crucial element to be proved. In 2006, Scotland was the last European jurisdiction to abolish this old-style common-law marriage, by the passing of the Family Law (Scotland) Act 2006.[13]

Marriage and Toll House at Coldstream Bridge, on the Scottish side; the river forms the border with England at this point

In the eighteenth and nineteenth centuries, marriage laws in Scotland encouraged the practice of couples wishing to marry eloping from England to Scotland. With transport less developed, many of these marriages were at Gretna Green, the first Scottish settlement on the main West Coast route from England; hence the term Gretna Green marriage for marriages transacted in a jurisdiction that was not the residence of the parties being married, to avoid restrictions or procedures imposed by the parties' home jurisdictions.[14] Other Scottish Border villages used for these marriages were Coldstream Bridge, Lamberton Toll (in Lamberton, Berwickshire),[15] Mordington and Paxton Toll. Portpatrick in Wigtownshire was used by couples from Ireland, because of the daily packet boat service to Donaghadee.

Gretna's famous runaway marriages began in 1753 with the passing of Lord Hardwicke's Marriage Act in England. The Act required consent to the marriage from the parents if a party to a marriage was not at least 21 years old. However, in Scotland it was possible for boys to get married at 14 years and girls at 12 years without parental consent. Some Gretna marriages were of (sometimes abducted) heiresses; e.g., the second marriage in 1826 of Edward Gibbon Wakefield to the young heiress Ellen Turner, the Shrigley abduction. Other motives for Gretna marriages were to avoid publicity or to marry immediately.

In 1856, Scottish law was changed to require 21 days' residence for marriage, and since 1929 both parties have had to be at least 16 years old (though there is still no parental consent needed). A further law change was made in 1940 to abolish these irregular marriages by declaration. The residential requirement was lifted in 1977.[16]

Gretna Green remains a favoured location for marriage because of its romantic associations, with Dumfries and Galloway (the council area containing Gretna Green) the most popular area to get married in Scotland in 2015 (4,395 marriages in Dumfries and Galloway, out of a total of 29,691 marriages throughout Scotland).[17]