I sent this response to Sue Visser request for comments on common law marriages in Scotland. She kindly thought that it might be of interest to the list in general so I am reposting it. Best wishes James >>> My understanding is that common law marriages were recognised in Scotland, especially in the 19th century. I have a dissertation on the subject from another list: "By definition an Irregular marriage leaves no records. In brief, there are three ways in which people could be irregularly married. 1 a promise to marry followed by sexual intercourse was a valid marriage in Scots Law. (Subsequente copula), Sure honey, I'll marry you, now lets get on with it. 2. a declaration before witnesses. (per verba de praesenti). "Can we have a double bedded room". "You two married?" "Yes". They are. 3. By habit and repute. Everyone in the community think that they are and they pass themselves off as being married. An Irregular marriage can however be registered. I will write at length about that topic in #2. I will also write about marriage in general in #3. I think, I should risk going off topic on a short review of Marriage in Scotland. There are three alternative views of marriage. 1. One can take the view of Roman law, and decide that mutual consent constituted marriage. 2. One could take a tribal notion and consider that marriage consisted of handing over the bride by her father 3. One could take the view that the matter of marriage was that sexual intercourse was the decisive factor. While these would seem to be clear alternatives, in practice there is a mixture of more than one of these ideas. For example one of the requirements for a valid marriage in the view of the Roman Church is that the marriage has been consummated. Because Scottish law is founded upon Roman Law there is no question of any giving by the parent in the service. A Scottish wedding does not have the words, "Who gives this woman to be married to this man". A Bride may come up the aisle on her Father's arm, but he merely leaves her beside the Groom. Scottish law has never demanded parental permission for a marriage Incidentally a religious wedding in Scotland may be celebrated anywhere. The core of the wedding is "As a seal of the vows you are about to make take each other by the right hand" The vows - which have do not include a promise to obey are then exchanged. The earliest Scottish reformed form (Knox 1556) goes "that you have takyn and are now content to haue". In Scotland therefore consent is the key. The Kirk seemed to believe in consent and publicity , though it was estimated by 19th Century commentators that at least a third of 18th Century Scottish marriages were irregular. Prior to 1 July 1940 a promise to marry followed by sexual intercourse was a valid marriage in Scots Law. (Subsequente copula), as was a declaration before witnesses. (per verba de praesenti). Perhaps the best comment on the situation of marriages in Scotland was made by Lord Hailes in 1772. "All the European nations, Scotland excepted, have departed from the more ancient common law, and have required the interposition either of Church or of State to validate a marriage. Thus what was the law of all Europe, while Europe was barbarous, is now the law of Scotland only, when Europe has become civilized". Those who are interested in the topic of marriage can address themselves to the report of the Royal Commission on the topic which was set up in 1865. The first thing you have to remember was that I was talking about Irregular marriages, and the theory behind the Scottish law of marriages. However, if you read posts #1 and #2, you will see that irregular marriages were to use a term from Roman Catholic moral philosophy, deficient. They therefore were - in the eyes of the Church - not completely right. We therefore are now dealing with a completely different area, and that is the legitimacy of children. The Church - under the guise of being a moral policeman wished to regulate the fecundity of the population. The reason was simple, an unsupported mother and child was a burden on the Poors fund. There was also the theological understanding about the relationship between Scotland and God which was expressed in the Covenants, and even after they were no longer generally accepted had some emotional relevance to the fact that it was assumed that unless people had made some other arrangements for the care of their souls that they were Church of Scotland, and therefore under the discipline of the Kirk Session. The OPRs are only part of the story. Often for the full story, it is necessary to look up the Kirk Session minutes to see the background. This is a general article and I am not attempting to cover everything, but it will give you some idea of how things worked. Young Jeanie is in the Family way. After the baby is born she is summonsed to appear before the Kirk Session, which asks her who the Father is. Of course she can tell them to go to Hell; its none of their business. However she may be thrown out by her parents, and will be dependant upon the Parish for Charity. Not a clever move. She says a name. He is hauled in to the Kirk Session. If he admits it, then they may well be encouraged to get married. They will however be sentenced to appear as penitents in Church for so many Sundays. They are guilty of fornication. What however if he is the laird's son, and she a maid in the house. You can be damn sure that they will not get married, and he may well go off on his travels. The child will stay illegitimate. Let us say that the relationship is denied, and he has the reputation of coming from a good, but poor family, while her family are notorious in the district. He might be found not proven. The child remains illegitimate But let us say that the young buck is already married. Then they are a pair of Adulterers, who deserve death (Which of course doesn't happen and is dubious if it ever did). They will spend longer on the Penitents stool. The child will be illegitimate. All right, they are crafty, and they get married before the child is born. Well, the Kirk Session can count up to nine just like the rest of us. They have been guilty of Premarital fornication, and will go to the stool. Or, like Mr Robert Burns - with friends, they can be charged with contracting an irregular marriage, and he pays a fine into the poors box, and they get married. Now, when the baptism of the child is noted, that child is illegitimate, however marriage subsequently legitimates. Any way who cares? legitimacy only really matters if there is something to inherit. If I am a farm servant who moved every 6 months I have nothing to have inherited by my children. I may not bother getting married at all. I want the Children baptised? Well the 1714 Act Anent Baptism covers that by supplying others to present the child." Supplied by; Edward Andrews St. Nicholas Buccleuch Parish Church Dalkeith, Midlothian, Scotland Visit our Web site http://www.btinternet.com/~stnicholas.buccleuch/index.htm