Common law marriages

speleobat2 · Post by **speleobat2** » Sat Oct 13, 2007 2:27 am

Did common law marriages exist in Scotland in the mid to late 1800's?

I was working on stray Clerihews today and found a Peter Clerihew, wife Ann, and daughter Isabella on the 1871 Census. I couldn't find them anywhere after that and also couldn't pull a birth certificate for Isabella or a marriage cert. for them. I finally located a death cert. for Peter for May of 1871 showing his wife as Ann Donald. On a hunch, I searched for Isabella's birth cert. under her mother's maiden name and there it was. She was illegitimate. I found both Ann and Isabella on the 1881 Census as Donalds.

This made me curious about common law marriage. I know people fudged things on the census forms, but would Ann have had a legal claim to Peter's name as a common law wife? They may or may not have been together for several years. Isabella was born in 1866.

Carol

Falkyrn · Post by **Falkyrn** » Sat Oct 13, 2007 2:08 pm

various forms of "irregular" marriage have been recognised by law in Scotland for centuries although not (often) accepted by the church

speleobat2 · Post by **speleobat2** » Sat Oct 13, 2007 5:28 pm

Hi RJ,

I guess what I'm wondering is: Was there a law that spelled out what constituted a "common law" marriage? How many years would a couple have to live together, for example?

A couple of our neighbors were living together but not married when we first moved here. They said that under Alabama law, if you spent one night together you were considered "married common law", but they didn't know how far that would actually go in court!

Carol

Falkyrn · Post by **Falkyrn** » Sat Oct 13, 2007 8:57 pm

There was no specific period which would recognise an irregular marriage and neither were there any specific laws which enshrined or set out the specifics of what became known as "common law marriages" .... In england and wales the marriage act of 1753 effectively ended recognition of various forms of irregular marriage although in Scots Law this recognition continued into the 21st century until the recent passing of the Family Bill legislation.

In the majority of cases the most common form of irregular marriage was "by habit and repute" ie by their actions of living together as man and wife and the perception by their friends neighbours etc that they were indeed man & wife. ... It's difficult to say what the law would determine a sufficient period to establish such "habit & repute" although I would doubt that one night would do it.

Post by **AnneM** » Wed Oct 17, 2007 7:09 pm

Hi there

There will very shortly be a revised FAQ on irregular marriage in Scots Law posted on the site. I've had really good luck in having been unwell while simultaneously trying to sell my house with all that entails and also having an internet breakdown. Watch that space.

Anne

speleobat2 · Post by **speleobat2** » Wed Oct 17, 2007 8:32 pm

Anne,

Isn't there some sort of medal you can collect--for endurance, maybe!

Carol

Post by **AnneM** » Wed Oct 17, 2007 10:38 pm

Just for whinging!!