At the end of 2003, Scottish Snippets, the weekly newsletter from the Rampant Scotland website reported that the blacksmith at Gretna Green had performed his last marriage at the famous anvil (Scottish Snippets #357, 6 December 2003). The weddings had continued—as many as five thousand a year—despite the fact that the marriages, in more recent times, had no legal basis.

Marriage Forms and Practices
From the time of the Reformation and the founding of the Church of Scotland in 1560, marriage ceased to be a church sacrament. It became a civil matter based upon the consent of adult individuals. How the marriage took place, meaning its form, might have been regular or irregular, but it was a binding union.

A regular marriage took place before a church minister following the reading of banns. An irregular marriage came about in one of three ways: by mutual agreement, or by a public promise followed by consummation, or by cohabitation and repute. In all cases, for regular and irregular marriages, both bride and groom had to be free to marry, not within forbidden degrees of kinship and over the age of consent (12 for brides and 14 for grooms).

Marriage Registers
In the Scottish church, "marriage" registers are usually registers of the proclamation of banns; sometimes the marriage is recorded as well. Proclamations were often read in the parishes of the bride and the groom, helpful to genealogists. Sometimes irregular marriages were recorded in the kirk session records because a fine or some other discipline was imposed. In a lot of cases the marriage has no record at all and it has been suggested the rate of unrecorded irregular marriages may be as high as 30 percent (Leneman, L. “Marriage North of the Border”).

An Increase in Regular Marriages
The number of irregular marriages increased after 1689 when William III and his government approved the disestablishment of the Episcopalian church in Scotland. At least two-thirds of the Episcopal ministers were unemployed and many went to Edinburgh to seek other forms of work. Some went into business marrying people, those who did not want banns proclaimed or chose not to be married in their home parish but wanted some kind of service with a minister. Edinburgh was the center for most irregular marriages and after the 1730s the ministers were not necessarily Episcopal.

According to law, a minister performing irregular marriages could be disciplined, even transported. However, this neither stopped the ministers nor put an end to irregular marriages. There was for a time a fashion for marrying in an irregular way.

Needless to say, all was not happiness and bliss. There were disputes as to whether a marriage was legal. The Commissary Court of Edinburgh from 1560 to 1830 had the authority to find whether or not a marriage had taken place. Because marriage ceased to be a sacrament in 1560, divorce in Scotland could be granted from that date. The commissary court handled divorce cases as well. Decisions could be appealed to the Court of Session and, after the union with England in 1707, to the House of Lords; obviously a legal route taken only by the wealthy.

Finding Records of Irregular Marriages
There are two or three places to look, in the kirk session records of the home parish, in records of ministers or churches noted for irregular marriages, and in the records of the commissary court. Within the Scottish databases at Ancestry.com, and on the Scottish Parish Registers CD, West Lothian and Midlothian can be found the Calendar of Irregular marriages in the South Leith Kirk Session Records, 1697-1818 (Marshall, J.S. Edinburgh: Scottish Record Society, 1968). This source is also available in the Family History Library.

Here is one entry that gives lots of interesting facts and suggests additional avenues of research:

Thomas Kirk, a sergeant in Whyteman's regiment, and Marion Dalrymple, by Mr. James Cruikshanks, at Mountainhall, 13 Nov 1710. “The session being informed that she hath a husband alive in Spain, and that she can give no evidence of his death but only by her own words, referrs [sic] the affair to the presbytery for advice, and referrs [sic] her to the magistrats [sic] to be brought under caution to compeer [sic] befor [sic] the session when called.”

Conclusion
Scottish marriage law allowed couples to keep their options open and they did take advantage of being able to marry irregularly, especially in the 1700s. The numbers dropped in the 1800s and change came in 1939, when only the habit and repute form of irregular marriage continued to be recognized by the law. As for Gretna Green its fame dates from 1754 when Lord Hardwicke's Act came into effect with the purpose of eliminating clandestine marriages in England. Gretna became a popular destination for runaway couples and remained so long after the law changed the residency requirements in 1856.

Further Reading
"Scottish Ancestry: Research Methods for Family Historians," by Sherry Irvine (Ancestry, 2003)

Scottish Family History, by David Moody (GPC, 1988)

Sherry Irvine, CGRS, FSA (Scot) is an author, teacher, and lecturer specializing in English and Scottish family history. She is the author of Your English Ancestry (2nd ed, 1998) and Your Scottish Ancestry (1997) and she is a regular contributor to several journals including Genealogical Computing. Since 1996, she has been a study tour leader, course coordinator, and instructor for the Institute of Genealogy and Historical Research at Samford University. She teaches online for the family history program of Vermont College and has lectured at conferences in Canada, the United States, and Australia. She is past president of the Association of Professional Genealogists.