... The marriage was legal if you declared yourselves to be married in front of two witnesses, it didn't matter where. There was no requirement for anyone else to be present.
Then you had to register the marriage, and to do that you had to get a warrant from the sheriff, who would take a statement from the witnesses to the effect that yes, they had seen and heard you declare yourselves married.
After 1855 it wasn't a case of not being able to afford to register. You were legally obliged to register a marriage, whether by a minister or by declaration. ...
Forfarian, I regret having to disagree but my understanding (and I did research this some time back) is that there was
no requirement for marriages by declaration to be registered and therefore
no requirement for a Warrant of Sheriff (Substitute) to be obtained - and, indeed,
no requirement for there even to be witnesses present to a declaration of marriage for such to be legal under Scots Law (marriage being regarded as a matter of mutual consent between two individuals).
However, once Statutory Registration was introduced in Scotland in 1855, there is no question but that many (though far far from all) couples who wished to marry (or who had already married) 'without the benefit of clergy' also
wanted to have a formal piece of paper to prove that they were married.
But such a couple could only have their marriage formally registered in the Statutory Registers (which was
not compulsory) if they could prove to the Registrar that they actually had married each other e.g. by declaration. 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 - naturally the Sheriff Substitute would want a couple of witnesses to attest to that fact before granting the Warrant), and
(b) then to take the Warrant along to the Registrar and have the marriage registered.
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 whether or not it had received a Warrant of Sheriff Substitute and whether or not it had been registered, and there was no requirement for either.
This state of affairs continued until the Marriage (Scotland) Act, 1939 came into effect in July 1940 - it introduced formal provision for Civil Marriage.
Of course for decades before this people in Scotland wanted something which was effectively the equivalent of the English Registry Office marriage of the time; so people
almost got around the letter of the law by a standard procedure of the declaration being made in front of two witnesses often in a solicitor's office or even in the office of the Sheriff Substitute using a
pro forma often produced by the Sheriff's office, the Sheriff Substitute then immediately issuing them with his Warrant, and then the couple promptly high-tailing it to the (often nearby) Registrar's Office and getting their marriage registered and receiving a marriage certificate (and perhaps they then went out for tea and cakes - or something stronger - to celebrate!)
The major drawback to all this from a genealogical point of view is that the marriage certificate
(a) bears a reference to the Warrant of Sheriff Substitute, and
(b) bears the legend that it was an Irregular Marriage.
Of course there was nothing whatsoever 'irregular' about the marriage in any normal sense of the word. That was a hangover from the church which regarded any marriage which its ministers didn't perform as 'irregular'. Indeed it is my understanding that the reason why civil marriage was not introduced until so very very late in Scotland was due to continued opposition from the church - and that this was even part of the reason for the delayed introduction of Statutory Registration in Scotland (1855 cf 1837 in England & Wales) which finally got through for 1855 only after proposed provisions for civil marriage had been removed from the legislation.
The words 'Irregular Marriage' and the reference to 'Warrant of Sheriff Substitute' have misled many family historians into thinking that there was something suspect about such a marriage. This was not the case - they were normal, proper, commonplace everyday events.
I post this only because there are many misconceptions about marriages by declaration, Irregular Marriages, and Warrants of Sheriff Substitute so it is important to try to get the facts as accurate as possible.
If anyone believes that I have erred in the (admittedly over-simplified) statements above I stand ready and willing to be corrected.
JAP
