Marriage in Scotland is recognised in the form of both civil and religious unions between individuals. Due to Scotland's history as a previously independent country, the laws around marriage developed differently in Scotland compared to other jurisdictions that also became part of the United Kingdom. This was partly a consequence of differences in Scots law and also the role and influence of the national church of Scotland, the Church of Scotland. The tradition of couples from England and Wales eloping to Scotland to marry at border towns such as Gretna Green was due to England, at the time, having much higher minimum ages for marriage without parental consent than were required in Scotland, and Scotland recognising irregular marriages by assertion before a witness until 1939 (see below). Today the difference in minimum ages is much closer with the legal minimum age to enter into a marriage in Scotland being sixteen years without requiring parental consent while England and Wales today allow marriage at eighteen.
In Scots law, there is a distinction between so-called religious marriages, conducted by an authorised celebrant, and civil marriages, conducted by a state registrar, but anyone over the age of 21 can apply to the Registrar General for authorisation to conduct a marriage under s12 of the Marriage (Scotland) Act 1977, and no form of religious ceremony is necessary. Since a decision of the Registrar-General in 2005, statutory references to religious marriages must be "read in" as referring to "religion or belief", in order to ensure compatibility with the Human Rights Act 1998 and allow humanists to conduct legal humanist marriages, which like civil marriages are also non-religious. As of 2017, the Humanist Society Scotland conducted more marriages each year than the largest religious body, the Church of Scotland.
Civil partnerships became available to same-sex couples in the United Kingdom in 2005 and grant rights and responsibilities virtually identical to civil marriage. In September 2011, the Scottish Government launched a public consultation on the introduction of same-sex marriage, with the Scottish Government indicating it "tend[ed] towards the view that same-sex marriage should be introduced". On 4 February 2014, the Scottish Parliament passed a same-sex marriage bill by a vote of 105 to 18.
History
Middle Ages and early modern era
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.E. Ewen, "The early modern family" in T. M. Devine and J. Wormald, eds, The Oxford Handbook of Modern Scottish History (Oxford: Oxford University Press, 2012), , p. 271. 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,E. Ewen, "The early modern family" in T. M. Devine and J. Wormald, eds, The Oxford Handbook of Modern Scottish History (Oxford: Oxford University Press, 2012), , p. 272. although recent scholarship suggests this idea is the result of late 20th-century New Age mythology.Probert, Rebecca, Marriage Law & Practice in the Long Eighteenth Century: A Reassessment (CUP, 2009) chapter 3 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.J. E. A. Dawson, Scotland Re-Formed, 1488-1587 (Edinburgh: Edinburgh University Press, 2007), , pp. 62-3.
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.E. Ewen, "The early modern family" in T. M. Devine and J. Wormald, eds, The Oxford Handbook of Modern Scottish History (Oxford: Oxford University Press, 2012), , p. 270. Weddings were often elaborate occasions for public celebration and feasting.J. R. Gillis, For Better, For Worse, British marriages, 1600 to the Present, (Oxford: Oxford University Press, 1985), p. 56. 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.M. Rackwitz, Travels to Terra Incognita: The Scottish Highlands and Hebrides in Early Modern Travellers' Accounts c. 1600 to 1800 (Waxmann Verlag, 2009, , 494.
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".E. Ewen, "The early modern family" in T. M. Devine and J. Wormald, eds, The Oxford Handbook of Modern Scottish History (Oxford: Oxford University Press, 2012), , p. 274.
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. 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.E. Ewen, "The early modern family" in T. M. Devine and J. Wormald, eds, The Oxford Handbook of Modern Scottish History (Oxford: Oxford University Press, 2012), , p. 273.
Irregular and common-law marriages
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. All but the last of these were abolished by the (2 & 3 Geo. 6. c. 34), 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 local property-owning citizens, and could often be recognisable to strangers by their presence at their forge. Culturally, blacksmiths were long considered to have supernatural powers, which may also have influenced the tradition.
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.Family Law (Scotland) Act 2006
Border marriages
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.See Black's Law Dictionary. Other Scottish Border villages used for these marriages were Coldstream Bridge, Lamberton Toll (in Lamberton, Berwickshire),J. R. Gillis, For Better, For Worse, British marriages, 1600 to the Present, (Oxford: Oxford University Press, 1985), p. 195. 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 the Clandestine Marriages Act 1753 (26 Geo. 2. c. 33) 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.
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).
Eligibility The marriageable age is 16. Marriage must be between two otherwise unmarried people. (Foreign divorces are generally recognised, but existing foreign polygamous marriages prevent a marriage in Scotland as this would be treated as bigamy).
Certain relatives are not allowed to marry. Under Scots law, one may not marry one's:
ancestor or descendant sibling aunt/uncle or nephew/niece adoptive parent adopted child
Additionally, the following marriages are not allowed except under certain circumstances:
former spouse's descendant or ancestor ancestor or descendant's former spouse
The list of proscribed affinities was reduced in the early twentieth century by the Deceased Wife's Sister's Marriage Act 1907, the Deceased Brother's Widow's Marriage Act 1921 and the Marriage (Prohibited Degrees of Relationship) Act 1931.
Procedures
The Marriage (Scotland) Act 1977 (c. 15) is the main current legislation regulating marriage. The (asp 8) extends the availability of civil marriages to "approved places" in addition to Register Offices and any other place used in exceptional circumstances; religious marriages in Scotland have never been restricted by location. Marriages can either be conducted by "authorised celebrants" (usually, but not always, a minister of religion) or by an "authorised Registrar".