Sherrifs Warrant

[Circam]

Can anyone explain the why some people were married by a sherrifs warrant in Scotland. Is this simply the equvelant to a civil marriage?

Thanks

[diddymiller]

very clear explaination of all sorts of Scottish marriages on this site:

http://www.gla.ac.uk/departments/scottishwayofbirthanddeath/marriage/

Sheiriffs warrant was a type of 'Irregular'Marriage as follows:

But Scotland's fame for distinctive marriage practices stemmed from 'irregular' marriages.  There were three ways of forming a legal marriage without banns or a minister being present.

1.  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. 
2.  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.
3.  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.

Irregular marriages were frowned on by law and the churches, and couples who admitted to them were fined, but they had the same inheritance rights as regularly married couples, and their children were legitimate.  Although the Church of Scotland did not approve of irregular marriages, it tolerated them because it feared that if the law did not recognize such relationships, the couple would end up 'living in sin.'  The system was believed to protect women from unscrupulous men who might seduce them with promises of marriage or fake wedding ceremonies.  After registration was introduced, an irregular marriage could be registered if the couple presented themselves before a sheriff or magistrate, were 'convicted' as parties to an irregular marriage, and paid a fine.  Some found marriage by sheriff's warrant a cheaper and quicker alternative than all the expense of banns and a regular marriage ceremony.  Marriages established in court by a Decree of Declarator could also be registered, on production to the registrar of an extract of the Decree and payment of £1, but this was not common.  In fact, irregular marriages were infrequent in Scotland in the mid-nineteenth century, and fewer than 100 per year took place between 1855 and 1870.  After that, the numbers rose steadily, and then rapidly in the early twentieth century, until they accounted for over 12% of all Scottish marriages in 1914.  They remained at this level until the Second World War.  Contrary to the national myth, most took place not on the Scottish border, but in the larger towns.  This may have been due to a decline in the influence of the churches, or to the relative cheapness of irregular marriages, but it also reflected the growing number of divorces.  Since many churches would not remarry a divorced person, and there was no civil marriage in Scotland until 1939, couples in this position had no alternative but to marry by sheriff's warrant.  From 1916, irregular marriages were no longer technically an offence, and in 1939 marriage by sheriff's warrant ended, to be replaced by a civil ceremony in the registrar's office.

Diddy

[Circam]

Many thanks for the info

[JAP]

Hello Circam and diddymiller,

I have read the University of Glasgow article (repeated above).  It contains several misunderstandings.

Sheriff's Warrant was not a type of marriage; it was merely a certification by a Sheriff Substitute that a perfectly legal, but so-called "irregular", marriage had actually taken place.

IF the parties to an "irregular" (but perfectly legal) marriage wished to have the marriage entered into the Statutory Register and a formal certificate issued, the first step was to obtain a Warrant of Sheriff Substitute certifying that the marriage had taken place.  That certification would then be taken to the Registrar who would record the details of the marriage and Sheriff's Warrant in the Register; the Registrar would then issue a marriage certificate.

But note: there was absolutely no requirement to do so - the marriage would remain legal regardless.

"Irregular" marriages were frowned on by the Church but not by the Law.
"Irregular" marriages were not an offence in Scots Law; they were perfectly legal.
There was no requirement for there to be witnesses to a marriage by declaration.

Below I set out the situation as I understand it.

I hope this helps.

JAP

Irregular Marriage in Scotland
Scots Law (which was, and remains, different from the Law in England & Wales in certain respects) viewed marriage essentially as a contract between two people.

Up until the Marriage (Scotland) Act of 1939 came into force in July 1940, three forms of marriage were recognised in Scotland:

(a) marriage by declaration i.e. two people agreeing to marriage.  There was no requirement for the declaration to be made in front of witnesses - however, most couples preferred to make their declaration in front of witnesses in order to mark the occasion and (importantly) so that the marriage could be proved

(b) marriage by habit and repute (e.g. a couple who lived together, had children together, and were viewed as man and wife by their community)

(c) a promise of marriage followed by consummation.

Marriage by a Minister was essentially a version of the first form.  Normally Banns would be proclaimed in the Church on two or three successive Sundays, after which (if there had been no objections) the couple would be married (i.e. would make their declaration of marriage) with the Minister conducting a ceremony; often this took place in the bride's home or in the Minister's home.

Of course the Church couldn't gainsay the Law but what it did do was to describe marriages with benefit of clergy as 'Regular' and all other (perfectly legal) marriages as 'Irregular' – a most unpleasant choice of words in my view.

The local Minister did not like "irregular" marriages at all but there was nothing he could do about it; the marriage was legal.  But he might well have pressured and/or shamed the couple until they agreed to have their marriage recognized by the church.  The Minister would then record something in the parish register such as: 'John A and Elizabeth B produced lines of irregular marriage dated (place) the xth day of x, xxxx and were here declared married'.  So now they were not only legally married under Scots Law but also in the eyes of the Church (the blessing of the Church might have been given with a good or a bad grace!).  Sometimes the parties were rebuked by the Church and sometimes they were required by the Church (not the State) to pay a fine (often paid to the parish poor box).

The offensive - in my view - words ‘regular’ and ‘irregular’ even passed into official usage.
 
From 1855 (when Statutory Registration started in Scotland) until the Marriage (Scotland) Act 1939 came into force in July 1940, marriages involving the church were entered into the Statutory Register as a matter of course but other marriages – though perfectly legal – were not unless special application was made.

Many couples who had contracted an "Irregular" Marriage did, of course, want to have a marriage certificate.  But they could only have their marriage formally registered in the Statutory Register and get a Marriage Certificate if they could prove to the Registrar that they actually had married each other.  The standard mechanism for this was
(a) to obtain a formal Warrant of Sheriff Substitute (i.e. documentary proof that the Sheriff Substitute accepted that the couple had married each other), and
(b) then to take the Warrant along to the Registrar and have the marriage registered and a marriage certificate issued.

This could be done promptly, or within a specified time period, or with special dispensation or court proceedings well after the event.

But the marriage remained legal (and children of the marriage were legitimate) whether or not it had received a Warrant of Sheriff Substitute and whether or not it had been registered; there was no requirement for either.

The certificate issued by the Registrar would include reference to the marriage having been ‘Irregular’ and to the Warrant of Sheriff Substitute.  This continued with simpler procedures and ease until the 1939 Act finally introduced civil marriage in a Registry Office by a Registrar but, up till then, the misleading word 'Irregular' still appeared on marriage certificates – and has caused much thoroughly unnecessary concern and worry to people researching their family trees.

[Berlin-Bob]

Hi Circam,

You can find some more topics on Irregular marriages in the
RootsChat Reference Library => Lexicon ^{(click here)}
(Tip: click on a category - on the right - for related topics)


I've added this topic to the list

Bob

[ibi]

Much snipped..............

 In fact, irregular marriages were infrequent in Scotland in the mid-nineteenth century, and fewer than 100 per year took place between 1855 and 1870.  After that, the numbers rose steadily, and then rapidly in the early twentieth century, until they accounted for over 12% of all Scottish marriages in 1914.  They remained at this level until the Second World War.  Contrary to the national myth, most took place not on the Scottish border, but in the larger towns.  This may have been due to a decline in the influence of the churches, or to the relative cheapness of irregular marriages but it also reflected the growing number of divorces. 

....snipped.....

Diddy

Diddy

The numbers that you quote relate only to irregular marriages where the couple went to the lengths of obtaining a Sheriff's Warrant or Court of Session Declarator, then requesting the Registrar to enter the details in his Register Book of Marriages.  These were reported in the annual Registrar General's reports.

It is certain that there were other irregular marriages which never made in into the Register Books of Marriage from 1855 onwards.  The question is how many ?


As in all such situations the children were only legitimate if the irregular marriage took place before any kids were conceived.  Otherwise, in Scots Law, they were known as adulterine bastards !

Some further, wider comments to follow, but I need to look up some references.

ibi

[ibi]

As far as banns for a regular marriage were concerned, it was not unknown where the situation was 'urgent' for the banns to be read three times on the same Sunday, i.e. twice during one of the two services.

The minister would only do this, however, where he knew the couple well.  After a 24 hour period (practice varied but this was the general usage) with no objections, the couple would be given the go ahead, hopefully in time for the marriage to precede the cause of the urgency !

ibi

[ibi]

One of my fascinations over the decades I’ve been doing this hobby, has been to appreciate how only a full understanding of the events and the processes that led to the creation of a certain records allows a better understanding of the record that resulted.

So often while much of what is written is generally correct, most often there are errors and, in particular, omissions. Mostly this goes back to the phenomenon arising from quotes being used from posts on other boards and authors who haven’t fully understood some of the nuances (in some circumstances, that comment is being very diplomatic and kind!)

So with irregular marriages in Scotland !

If only had a pound coin very every time I’ve read something to which I react, ‘Aye weel, but not quite!’…. or…. ‘Aye but you’ve missed out ………..’

I’d also be a richer man if I had a pound coin for every time I recognise my own words and phrases on the subject from posts starting many years ago ……… but, then, such attribution is unusual!


My sources for what follows are the various books by Leah Leneman and Bissett-Smith’s 1907 Vital Registration – A Manual of the Law and Practice concerning the registration of births, deaths, and marriages (For a certain US editor, that a perfect example of an ‘Oxford’ comma!) – all 440 pages of it !; as well as over 25 years of experience of research in the Scottish records.

Only when you read this book from cover to cover can you understand and appreciate the wide and varied range of circumstances that registrars had to deal with.


According to BS ‘A regular marriage in Scotland ' is 'one solemnised by a minister of religion, in presence of two witnesses [In fact, DWW interjection, it’s not that unusual to find more than two] after due proclamation of banns or publication of notice.

But the principle of Scots Law is that marriage is constituted by mutual consent, of which the religious ceremony is a public declaration and intimation.

Scotland adopted the Roman view of the contract of marriage. The ancient lords of the world held that the act whereby marriage was contracted was purely a private one ……………’[/b]

On that basis, BTW, there has never been in Scotland the concept of a so-called clandestine marriage.  ‘Private’ yes, but we’ll come to that later.


Much of what has been written so far in this thread is correct, but there are a few wee inaccuracies.  More important, there’s missing info.

The info on the three types of irregular marriage is quite correct.

A marriage by declaration could be ‘formalised’ by trotting along to the Sheriff Court anywhere in Scotland, along with witnesses or their affidavits, and, as long as the Sheriff-Sub was satisfied that one of the parties to the marriage had at the time of the marriage their usual place of residence in Scotland, and it was less than 3 months from the marriage then he would issue the required warrant.

This process in no way involved a ‘conviction’, i.e. an action by the court against the couple.  Instead, the couple were applying to the Sheriff Court.

Said couple then trotted back to their local Registrar with the Warrant and the entry in the Register Book of Marriages was duly made.  Many couples would travel a fair distance to ensure that there wasn’t a reporter from their local newspaper sitting in the public gallery. 

Note that this is the only situation when the actual signatures of the couple are on the entry in the Register Book of Marriages.

Note also that nowhere in the register entry was the word ‘irregular’ used.  The register entry only referred to the Sheriff’s Warrant, and, in the place and date column, the form of words ‘By declaration in presence of <witness1> <occupation> <address> and <witness2> <occupation> <address> ….

There are rare instances of double registrations.  Nothing in the various acts stated that this wasn’t possible however reluctant a registrar may have been to carry out the second registration.

<more>.....................

Later PS connected corrected to contracted.

Second later PS: The residential qualification was either one of the parties having their usual residence in Scotland, or one of the parties having lived in Scotland for 21 days prior to the irregular marriage.  ibi

[ibi]

....<more>.........

One example I know of involved a student at Edinburgh University who decided to go through an irregular marriage by declaration with the love of his life.  To say that the Free Kirk family involved were horrified would be understating the matter as an uncle of the student was a high heid yin in the Free Kirk, not quite the Moderator, but not far off.

The couple were forced to separate and live apart, ‘re-marrying’ some 9 months later (work it out!) according to the ‘Forms of the Free Church of Scotland’ duly registered in the local registrar’s Register Book of Marriages.

It is often wrongly stated that there had to be witnesses.  Not so, as JAP very correctly states, - just that this meant that the Sheriff Court Warrant wasn’t a possible route. 

This situation required an action in the Court of Session where, if the judge was satisfied from the evidence presented to him that such a ‘private’ marriage had taken place, then a Declarator would be issued, which automatically led to an entry by the Registrar in his Register Book of Marriages.

There was a third possibly, this being the Conviction route involving arranging for a prosecution by 'A Justice of the Peace, or a Magistrate’. These must have been rare, - I’ve never come across one.

If anyone out there has an example of such a marriage by Conviction, I’d be most grateful for the reference or even a copy of the image, please, pretty please !, to add to my collection of rarities, - it will take it’s place after the first ever marriage that I recently came across ‘According to the Forms of the Salvation Army’ !

I have a memory but can’t be bothered to search at the moment for the reference to the fact that this Conviction possibility became impossible after some time in the 1920s.  (Suggestion, - try the GROS site and list of acts….)

Obviously Gretna Green and other such ‘runaway’ marriages were simply irregular marriages in the eyes of Scots Law, but could only be registered in Scotland if the residential qualifications had been met.


Marriage by Habit and Repute continued way beyond 1939, - in fact up to 2006 (perchance 2005, - time goes past too fast these days, - I’d have to check out the date). 

In fact, one of these subtleties, - this only did away with situations where the basis for later claiming a marriage by habit and repute was established after 2006 (or 2005?).

In other words, any couple who wish to claim a marriage by habit and repute for an earlier period can still do so for as long as they live, or, in fact, if just one of them lives, and the situation involves some continuing benefit being due to the spouse of the deceased.

There’s real wee peculiarity here.  For a marriage by habit and repute to be recognised it must be shown that the couple never declared to each other that they were married, as that would then have been a marriage by declaration !  Think about it !


I’ve personally never come across a registration linking back to a Promise of Marriage followed by Consummation, but Leah Leneman’s book makes for fascinating reading if that sort of subject turns you on.

The major question is just what constituted a ‘promise’.

Forbye, the law was not prepared to accept that this could apply to a man and his mistress!  If you’re interested, go buy Leah’s excellent book.

ibi