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Archiver > MORAY > 2003-06 > 1056546922


From: Gavin Bell <>
Subject: Re:[MORAY] Record found and lost
Date: Wed, 25 Jun 2003 14:15:22 +0100


Gordon wrote:

> ...
> Firstly, I have to get a copy of the 1855 marriage certificate - the
> marriage was by license so I hope that makes no difference.

There's something peculiar here. "Marriage by Licence", while a
commonplace in England, does not exist under Scots Law. In 1855, and
for a good long time thereafter, there were just 4 ways in which, in
Scotland, a marriage could be legally constituted. These were:

1A marriage service in the Kirk of Scotland. A preliminary to this was
the reading, on three separate previous Sabbaths, of the Proclamation.
This was the only form of "Regular" marriage.

In addition to this "Regular" form, which was the only one acceptable to
the Kirk, there were three further forms of marriage, which were deemed
to be "Irregular", but which were nonetheless perfectly valid at law.
These were:

2Marriage by Declaration. If two people simply declared themselves to
be man and wife (preferably before witnesses), then that was that. This
was the legal basis for "Gretna Green" marriages, but was valid
throughout Scotland. When Civil Registration started, in 1855, this
remained the case, but a problem arose. You could still become married
by this means, but you could not easily satisfy the new legal
requirement to register the marriage, because the legislation was based
on the assumption that marriages happened in the Kirk. What then tended
to happen was that after a Declaration, the couple would troop along to
the Sheriff Court, with their witnesses, and if they could convince the
Sheriff that the marriage was lawful, and had taken place, then he would
provide a Warrant to that effect, which would be accepted by the
Registrar as evidence of a valid marriage

3Marriage by Promise 'subsequente copula'. If a man promised marriage,
and on that basis the woman had sexual intercourse with him, then again,
a marriage was constituted.

4Marriage by Habit and Repute. If a couple lived for some time (no
specific period was laid down) as if they were man and wife, then Scots
Law deemed that they were. Interestingly, this is still valid.

So I am at a loss to know where your "Marriage by Licence" comes from.


Gavin Bell


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