The legality of a Scottish marriage

I should add quickly, before the Scottish mafia descends, that this story is about the legality of a single marriage, not Scottish marriages in general, and this marriage was Scottish only in the geographical sense. That is, the disputed wedding took place in Glasgow in 1910.

The difference between English and Scottish marriage law is the origin of the fame of Gretna Green. The English Marriage Act of 1754 imposed a strict rule of “no marriage under the age of twenty-one without parental consent”, and the traditional procedure of issuing public “banns” in the parishes of the two parties helped to enforce that rule. This law did not apply in Scotland, and it was possible to get married in Scotland on a much more casual basis. The geography of the Border between England and Scotland makes Gretna Green the southernmost crossing-point and the easiest one to reach from southern England, so it became a proverbial location for “runaway” marriages. The state of the law was amended in 1856 by “Lord Brougham’s Act” which provided that marriage in Scotland could be allowed only if both parties were either Scottish-born, or permanently resident in Scotland, or had resided in Scotland for a minimum of twenty-one days before the wedding. This would give angry parents a little time to track down the fugitives.

I have a copy of the Times for May 20th 1922 (when my mother was born), and I find in the law reports that Archibald Dickson Winterbottom was seeking the annulment of his marriage to Gladys Hughes Winterbottom.

Mr. Cotes-Preedy appeared in court for Archibald (“the petitioner”) and Mr. Preston appeared for Gladys (“the respondent”). Since this was an English court, and the petitioner was basing his case on an alleged breach of the Scottish marriage laws, Mr. Mcgillivray, a member of the English bar and the Scottish bar simultaneously, was also present in court to give testimony on the tricky legal points. Mr. Justice Hill was hearing the case.

Since the story which could be eked out of this report looked interesting, I tracked down a document from a Winterbottom genealogist which supplied more of the family background. Fortunately, because unaided speculation was already causing me to bark up a few wrong trees.

Archibald was born in Lancashire, but by the time he grew up his father William Winterbottom, a very wealthy businessman, had acquired Aston Hall in Derbyshire, which became their family home. He joined the Cavalry, and in 1910 he was stationed in Dublin.

Gladys was born in Paris of American parents, and seems to have crossed the Atlantic frequently. She married a fellow-American in 1904 and got divorced in America in 1908. The first date comes from the genealogist, the second from the Times. On her divorce, she returned to England and settled in Bearwardcote in Derbyshire. Living in the same county might have been something of an icebreaker when she went to Dublin and got acquainted with Archibald.

In the words of Mr. Preston, “The evidence is that he met her on the hunting-field and had known her for six weeks before they went through the ceremony.” According to “The Curragh Incident” by Sir James Fergusson, the officers at the Curragh, further inland, would frequently go out with the Kildare Hunt, with a territory which would have reached as far as Dublin. One diary, “after briefly noting details of training and inspections, records a cheerful succession of meets, point-to-points, tea-parties and dances”. In that social environment, Archibald came to know Gladys and decided to marry her, even though she was four years older than him. His father disapproved, and probably regarded Gladys as a gold-digger.

Archibald’s answer to this opposition was the resolve to get married in Glasgow and tell his father afterwards. I don’t suppose he was given enough leave to allow them to meet the “twenty-one days” requirement. They got round this problem by claiming “permanent residence”, giving false addresses. In her case, Port Logan in Wigtownshire. Port Logan is near Stranraer, which probably inspired the choice. They could have noticed the name, at least, in their passage from Ireland. Fortunately the only “proof of residence” required in 1910 was a sworn oath in front of the Sheriff-substitute. Nevertheless this shameless deception would be at the heart of the later legal tangle.

According to the genealogist, Gladys was already having a crisis of conscience about the legality of their marriage in 1913. The story in court is that these doubts began in 1915, and Archibald tried to resolve them by urging her to marry him again.. He later withdrew the offer because unspecified “difficulties” arose. One of them, I imagine, would have been the necessity of proving the first wedding to be invalid before the ceremony could be repeated, but perhaps he was no longer sure that he wanted to be married. They lived “under the same roof, though not as husband and wife” until 1919. She then left him, perhaps to go back to Paris. At least her counsel reports that he could not call her because she was very ill, and he had presented a French medical certificate to vouch for the illness. Now, in 1922, Archibald himself was trying to get the marriage invalidated on the grounds that the ceremony had been performed illegally. The case took the form of a suit against Gladys, in legal terminology a “petition for relief”.

Since his argument was based on the fact that Gladys had given a false address, Mr. Justice Hill questioned him very closely about his own involvement. It was a case of “What did he know and when did he know it?” He claims that he did not hear her giving a Scottish address before the ceremony, and “I knew nothing at all about it until I saw it on the register which I signed” (though he admits that he made no comment about it even at the time of signing). This innocent pose is very implausible, to be honest. He would have certainly had to think about some way of getting round the twenty-one day rule, and may well have made the suggestion himself. He would have had to give a false address on his own account at the same time, but neither side saw any advantage in bringing up that point explicitly.

So the first thing the court needs to know is whether giving a false address really would invalidate the marriage. That is where Mr. Mcgillivray comes in. Technically as a witness for the petitioner and cross-examined by Mr. Preston. He confirms that the Scottish courts would at least “entertain” a suit like the one brought by the petitioner, citing a couple of recent cases. He also affirms that the allegation would be a possible line of defence against a prosecution for bigamy, should either party marry again.

Having failed to get a negative on this point, Mr. Preston tries a different tack when he opens his presentation. He questions whether the court has been given any decisive evidence that the address given really was a false one. Archibald says it was, but is that enough? It is in this context that Mr. Preston makes the comment about Archibald having known her for only six weeks. The case offered by the petitioner has not even tried to prove that her “usual place of residence” was elsewhere. Without that proof, the address given on the marriage certificate can’t be challenged. I can’t help thinking that the lady’s absence from court was rather convenient at this stage, since otherwise Mr. Cotes-Preedy would have been able to settle the point by cross-examining her. He’s complaining about that at the end of the hearing.

Mr .Preston submits that the petition be dismissed on the grounds that the “false address” allegation has not been proved. Mr. Justice Hill replies “I should like to hear you on your other submissions.”

Mr. Preston then submitted that “the petitioner was not entitled to the slightest sympathy, and it was doubtful whether any petition for relief had ever been put forward on such discreditable grounds.” Archibald had waited for nine years before complaining about the false statement made by Gladys, and it was a false statement which he had supported at the time. The Sheriff-substitute had been satisfied “and that satisfaction was founded on oath, and that oath was a perjury. No man in that or any other court could allege his own wrong- his own perjury- as ground for relief”.
Mr Cotes-Preedy; There is no allegation of fraud here.
Mr. Preston; He is here urging that what he did was false; he could not obtain relief otherwise. He comes here relying on a false statement, yet everyone must come to Court with clean hands.

Near the end of his presentation, Mr. Preston made a very careful statement of the difference between two kinds of marriage and the way they might be annulled (though he does not use that word). Some marriages were void from the very beginning, such as bigamous marriages, marriages within the prohibited degrees, and marriages with insane people. Such a marriage had never been a true marriage. The effect of “voiding” a marriage of that kind would be to make the children of the marriage illegitimate (which is what happened to Mary Tudor). Other marriages were “avoidable”. That is, they could be ended by divorce in the modern sense, but they were perfectly valid up to the moment of the divorce, and the divorce had no impact on the status of the children.

On that basis, he made a provocative charge against Archibald, who was trying to claim that his own marriage was illegal enough to belong to the first category. “The object of the present suit was to disinherit the eldest son of the marriage, who was the heir of his grandfather, who lived at Aston Manor, near Derby.” This prompted Mr. Cotes-Preedy to rise up again and complain; “My friend must not say that. That is not the object.” Mr. Preston apologised if he had said something he shouldn’t, but re-iterated his point more cautiously, pointing out that “if the petitioner succeeds he will bastardise his own sons.” “Disinherit” was certainly much too strong, because the grandson was not an obligatory heir (though Gladys might have thought so, which could explain her opposition to the suit). This was not ancient property, strictly “entailed” to pass to eldest son of eldest son. The actual effect of William Winterbottom’s will (in 1924) was to leave the income from his estate to his widow, dividing the estate after her death between his three children. The genealogy shows that the “eldest son of the marriage” later went to Eton, so he wasn’t left penniless, anyway.

Mr. Preston’s final submission was that “the petitioner was estopped from obtaining relief by his conduct and the long delay in bringing his suit and his lack of sincerity.”
Mr. Justice Hill; “That goes to the discretion of the Court. The question here is, have I any?... if I have any discretion here, I shall not exercise it in favour of such an odious application as this petition.” He ended the day by reserving judgment.

Given his last remarks, you will not be surprised to learn that the petition was finally dismissed. Perhaps Archibald should have gone for “desertion” instead. However, he married again later in life, while Gladys was still alive, so the couple must in the end have been separated one way or another.

Digby Cotes-Preedy later became a Judge, and his face can be seen in the National Portrait Gallery.

There used to be an awesome butchers in Gretna, went there years ago and bought way too much haggis and Lanarkshire sausage

Apart from that, neat story going on there, I would imagine it could form the basis of a decent novel.

a reply to: DISRAELI2
Excellent historical and genetic research! And the morals and morals in the society of that time were very sad.

a reply to: SprocketUK
What I remember is the caravan site at Gretna Green, just over the bridge, where we used to stop overnight on our way up to the Highlands. Now closed. A piper used to stand there earning some money.

originally posted by: DISRAELI2
a reply to: SprocketUK
What I remember is the caravan site at Gretna Green, just over the bridge, where we used to stop overnight on our way up to the Highlands. Now closed. A piper used to stand there earning some money.

It was always the first part we stopped on our way to the Highlands that felt proper Scottish, Gretna

I married Mrs Carpy in Gretna Green.

a reply to: Oldcarpy2

That is cool as anything!

Could only be topped by getting married by Elvis in Vegas

a reply to: SprocketUK

That was my first marriage......