So mused the Roman author and natural philosopher Pliny the Elder (23/24-79 A.D.) in his Naturalis Historia (Natural History). It is unfortunate but perhaps fitting that Pliny would perish in Stabiae while attempting the rescue of a friend and his family by ship from the eruption of Mount Vesuvius, which had already destroyed the city of Pompeii. Two thousand years later, it seems that the passage of time has done little to diminish the power of Pliny’s observation.
We live in an uncertain world. Every day, people take – or, at the very least, consider taking – risks while facing a multitude of unknowns. At this very moment, a mother-of-three is on a hospital waiting list for an operation, wondering if it is worth the risk to take out a loan and instead go private. At the same time, a teenager worries about his future, undecided on whether he should pursue his dream of becoming a professional ballet dancer or instead opt for a career in cyber security. Given the ongoing redundancies in the humanities across the UK, I’m currently weighing up my own career options, wondering if it is worth the risk to remain on the academic job market, possibly waiting years for that elusive permanent position, or else attempt to forge a career outside of academia. Like many in my position, I’m uncertain.
Dealing with risk and uncertainty is a fact of life, despite making many of us feel deeply uncomfortable. Whether struggling to make life-changing decisions, experiencing difficult personal matters, or simply trying to cope with unfolding events or world-wide disasters, people regularly face and experience moments of risk and uncertainty; a reality not limited to a particular time, place or space.
As concepts, risk and uncertainty are traditionally applied to moments of environmental and economic crisis, both real and imagined. Terrorism, mass unemployment, inflation, public health emergencies and environmental catastrophes remain high on the agenda for governments and corporations around the world. Crippling concern about the devastating effects of climate change and our planet’s uncertain future has even recently gained a new name: eco-anxiety.
News anchors and journalists duly warn the public of such risks and uncertainties on a daily basis: ‘stay alert, control the virus and save lives’ is seared into the consciousness of most sentient beings in Britain by this point. Amidst the doom and gloom, it is no wonder that some warnings go viral, with RTE weather reporter Teresa Mannion declaring live on TV during the calamitous Storm Desmond in 2016: “Don’t make unnecessary journeys, don’t take risks on treacherous roads…and don’t swim in the sea!”
In recent years, historians have used the concepts of risk and uncertainty to uncover how natural and man-made hazards have threatened human endeavours and existence in the past. Much of this research focuses on how institutions and societies responded to various life-altering events throughout history – from mapping regional attempts to control the spread of bubonic plague during the fourteenth century to questioning how global responses to nuclear accidents shaped risk management strategies during the twentieth century.
This new series for HWO instead seeks to understand how ordinary people calculated risks and faced uncertainties in everyday life in the early modern world. Stretching from sixteenth-century Britain to eighteenth-century Mexico, its articles use the concepts of risk and uncertainty to show how ordinary people made – and often struggled to make – decisions that changed the entire course of their lives, and in turn, how they understood and viewed their position within their respective worlds. Risk and uncertainty became an increasingly familiar condition to ordinary people during the early modern period. The dissolution of traditional political and religious orders, the rise of new faiths and confessions, and the sudden acquaintance with other cultures through organic and forced means, transformed how ordinary men, women and children thought about and experienced risk and uncertainty in everyday life.
The early modern world also shares some features with our present reality: the displacement of people due to intolerance and persecution, the widespread belief in ‘alternative’ facts and the political use of doubt, and the persistent rollback on gender equality and women’s reproductive rights, foster complex questions regarding the meaning of risk and uncertainty in everyday life in both the early modern past and today. From the young woman risking a romantic relationship while weighing up the dangers of pregnancy and consequences of unwed motherhood, to the enslaved boy escaping captivity in an attempt to achieve a kind of liberty that had been stolen from him as a child, the historical record is full of hidden stories of personal risks and uncertainties that irrevocably shaped the lives of ordinary people.
From a purely academic perspective, risk and uncertainty are separate. The distinction proposed by the economist Frank H. Knight over a century ago has become classic. In the case of risk, the outcome is unknown, but the probability distribution governing that outcome is known. Uncertainty, on the other hand, is characterized by both an unknown outcome and an unknown probability distribution. In other words, risk is something that can be calculated but uncertainty defies calculation. According to sociologist Ulrich Beck, a risk society is a society increasingly preoccupied with the future (and also with safety) which generates the notion of risk. The concept of uncertainty, on the other hand, often refers to what is not known, and (for some) what cannot ever be known or quantified.
But for most people, risk and uncertainty are more or less synonymous: things that are uncertain are risky and vice versa. Whether that involves giving an unfaithful partner a second chance, or investing in cryptocurrencies in pursuit of profit, most of us have calculated risks and faced uncertainties at some point in our lives. They are, however, words that have gained heightened relevance in the past few years. As we slowly emerge from a devastating pandemic that affected people across the globe (though to varying degrees) we are now facing the uncertainties of Brexit, war in Europe and the threat of yet another public health crisis.
Studies also reveal that the uncertainty of the cost-of-living crisis is causing lasting damage to the mental and physical well-being of many people. A recent poll by Aldermore Bank found that a third of British people have not made any plans to mitigate the rise in living costs, while that more than a quarter believe their current financial situation is not sustainable. Many of us currently exist in a state of suspended uncertainty, aware of the risks that lie ahead yet unable to adequately plan for a rainy day. And torrential showers are forecast for the foreseeable future.
But while we are all aware of risks and uncertainties in our own worlds, we still know very little about how ordinary people calculated risks and dealt with uncertainties, on both a personal and shared level, in the past. Understanding how Viking warriors calculated risks when embarking on their first journey across unfamiliar waters in 793, or how seafaring merchants experienced uncertainties when boarding a ship to cross the Atlantic on a well-trodden route in 1793, is difficult to recover. What we do know for certain, however, is that personal experiences of risk and uncertainty shaped – and continue to shape – the lives of ordinary people in profound ways.
More than sixty years ago E. H. Carr wrote that ‘History consists of a corpus of ascertained facts.’ In school, we were taught to learn important dates and memorise the names of ‘important’ (predominately white, male) people. It wasn’t until I studied History at university that an eccentric lecturer told me that ‘nothing in History is certain’, and that ‘as historians it is our duty to question everything, even dates.’ (In a bid to impress I subsequently argued in a class presentation that the Irish abbot Columba travelled to Scotland in 568, not 563, and that this discovery changed the very course of Scottish history – incorrect, but at least I tried.)
While there is, of course, such a thing as ‘historical certainty’, historians are, to borrow the words of Elisabeth Engel, ‘uncertain narrators‘, faced with myriad silences, gaps, and inconsistencies in the historical record. How can historians possibly represent forgotten or overlooked lives? In many respects, the history of uncertainty is the history of the unknown – how ordinary people experienced and perceived uncertainties in their own lives is, of course, difficult to uncover, especially the further you look back in time.
It is much easier, however, to investigate how ordinary people calculated risks in their personal lives. In my own work, I research how ordinary women negotiated their legal status and property relationships in early modern Scotland. The restriction of women’s property rights within marriage meant that many calculated risks and planned ahead for future uncertain scenarios, including their husband’s untimely death. The certainty of mortality and the uncertainty of its timing meant that when a bride was drawing up her marriage contract with a notary, she was already anticipating the death of her future husband and her access to property as a widow. Without the security of a marriage contract, married women risked financial destitution on widowhood. In early modern Scotland, a bride knew that the death of a debt-ridden husband was potentially disastrous, so she mitigated against such a risk by securing ownership of her inheritance and use of her marital property in her marriage contract, before she had even walked down the aisle. During the early modern period, recourse to law for ordinary women was therefore essential in successfully managing perceived and real risks and uncertainties in daily life, and upon life-altering events.
According to Scott Gabriel Knowles, the ‘certainty’ of the historical record is an ‘artefact of a time when women, minority groups, workers, and nonhuman life/the environment were not part of the enquiry.’ Accepting a wide range of historical fields and methodologies – including gender, social, family, labour, queer, race and ethnicity, and many more – challenges the ‘certainty’ of history by adding complex and often marginalised perspectives, collapsing the idea that the course of history follows a definable progressive direction. Just like our modern world, history is complicated – we should embrace the uncertainty, fuzziness and speechlessness of the past in all its splendour.
A varied history of risk and uncertainty can provide alternative stories that foreground the rich diversity of human experience in the past. It also might help us think about our own position in the world today – as people with our own experiences of risk and struggles with uncertainty, though living in a different time and place. From the married woman fleeing her abusive husband in sixteenth-century London, to the enslaved woman petitioning for her freedom in eighteenth-century Mexico, this new series explores how ordinary men, women and children in the past understood and coped with risk and uncertainty during times of personal crisis and in everyday life. In doing so, it seeks to illuminate our own experiences of navigating an increasingly uncertain world.
This article originally appeared on History Workshop Online. To read other articles published in the series, click here.
If you are a woman who has publicly stated your intention to marry a man in 21st century Britain, you have probably been asked this question (or at the very least a variant of this question) by friends, relatives, or even strangers.
A 2016 survey found that around 90% of women in Britain take their husband’s surname on marriage. But this was not always the case. In the past, surname adoption on marriage was a highly variable and fluid cultural practice rather than a rigid, legally dictated one. In medieval England, many women kept their family names on marriage. In parts of early modern Britain, notably Scotland and Wales, most women kept their family names on marriage, while English women increasingly adopted their husbands’ surnames. Men sometimes even adopted the surnames of their wives, and it wasn’t uncommon for children and grandchildren to assume the surnames of their mothers and grandmothers.
That a woman took her husband’s name on marriage was a practice that I did not begin to question until my late teens. By the time I reached my twenties, I was labelled “a bit of a mad feminist” by a then boyfriend when I suggested that he could rightly take my name on marriage if he so wished. Others have told me to “think of the children”, insisting that it is only right for children to share a surname with their parents. Putting the interests of fictional children aside, it is a debate that has sparked heated discussion and fruitful debate whenever I’ve raised the topic with family, friends and strangers. (On a separate but related note, I’ve been called worse when suggesting that people should sign prenuptial agreements before ever getting married, but that’s a story for another day.)
The idea that a man and woman – and I’m specifically referring to heterosexual couples here for reasons that will become clear – unite as ‘one’ person in marriage through a shared surname can be traced back to legal and cultural practices in early modern England, most notably through the common law doctrine of coverture.
In a system of coverture, the husband and wife became ‘one’ person, with power and authority vested in the husband alone. Through coverture, the wife lost her right to own or use property without her husband’s consent, and any property she owned prior to marriage became under the ownership and control of her husband, with certain limitations on her inherited property. As well as losing her property rights, the entirety of a woman’s rights, obligations, and very existence were subsumed by those of her husband. According to Sara M. Butler, an English wife ultimately became “Mrs Him” under coverture. During the early modern period, female name changing therefore became closely connected to property rights and legal personhood, such that the person with the property and legal authority – usually the husband – was the holder and creator of the shared family surname.
Yet, before the doctrine of coverture became firmly cemented in legal thought, English women did not always take their husbands’ surnames on marriage. Prior to the Norman Conquest of England in 1066, it was quite common for women to keep their family surnames on marriage, and children even sometimes took the surname of their mothers. Surnames such as Margretson (son of Margret) and Madison (son of Maddy, nickname for Maud) are just a few of a great many examples of this type of naming. Medievalists have suggested that following the introduction of new restrictions on the inheritance and property rights of women following the rise of feudalism, it was becoming increasingly common for English women to take their husbands’ surnames on marriage. As English women increasingly lost their property rights on marriage, so too did they lose their family surnames.
As an English common law doctrine, coverture only affected English women and women living in English colonies. As a result, early modern England was the only country in Europe in which married women routinely took their husbands’ surnames. So what of women living elsewhere in Britain? In early modern Scotland, the topic of my own research, women kept their family names on marriage, a practice that remained in Scotland until the early twentieth century. In fact, it was considered unusual for a wife to take her husband’s surname on marriage in early modern Scotland. On certain occasions, Scottish men even adopted the surnames of their wives, especially when entering marriages with heiresses who owned significant amounts of land. Scots law (a legal system distinct from that of English common law) afforded married women with specific property rights that were not afforded to their English counterparts: neither partner to a marriage could dispose of land without the other’s consent and, if a wife predeceased her husband, her customary share of goods reverted to her kin. Scottish women therefore kept their family names upon marriage not as a gesture of independence, but as an indication of their less than complete absorption into the kindred, or ‘surname’, of their husbands.
Today, diverse communities across Britain maintain different cultural expectations with regards to female name changing on marriage. For instance, it is not part of historical Islamic norms or culture for a wife to take on her husband’s surname. Yet, despite these different views and practices, reference to “tradition” remains strongly embedded in British marriage practices and ceremonies. It remains tradition for a man to ask for a father’s permission to marry his daughter. It remains tradition for a father to walk his daughter down the aisle before ‘giving her away’ to her new husband. It remains tradition for three men – the father of the bride, the groom and the best man – to speak at the wedding reception. It is therefore not entirely surprising that it remains tradition for a woman to assume her husband’s surname on marriage.
While feminists and critics of marriage vocally condemn marriage as a patriarchal institution that overwhelmingly benefits men over women, it seems that many heterosexual couples continue to adopt a traditional outlook when planning their weddings and embarking on married life in 21st century Britain. In the 2016 survey, nearly three-quarters of married women aged 18 to 34 had taken their husband’s surname. Any woman in her twenties and thirties with an Instagram account will be familiar with pictures of old school friends wearing white wedding dresses and throwing bouquets of flowers towards the direction of their bridesmaids. The subtle name change usually appears online after the marriage certificate has been registered after the wedding. Given that the UK divorce rate is estimated at 42%, it is somewhat surprising that so many women continue to assume their husband’s name on the assumption of ‘till death do us part’, rather than ‘till divorce do us part’.
In recent years, magazine editorials, newspaper columns and online forums have discussed the reasons as to why most women in Britain continue to change their surname on marriage. Women themselves have also become increasingly vocal about their decision to change their name on marriage (or not), explaining their personal reasons for doing so, their expectations, and, for some, their regrets. I’ve noticed that female academics regularly ask for advice on social media on whether or not to take their partner’s surname on marriage. Some feminists are against it, arguing that it diminishes women’s academic and professional identities, while others argue that it is entirely up to women if they wish to change their surname on marriage or not. Despite such conversations, it remains the norm for the majority of heterosexual women to assume their husband’s name on marriage today, at least in Britain.
It is a topic that regularly comes up in conversation when I visit family in Ireland. My mother took my father’s surname on marriage in 1987 because she wanted to have the same surname as her future children. My sister, after marrying her long-term male partner in 2019, instead decided to keep her family name. Both decisions were deeply personal and decided on after much reflection. Nonetheless, it was my sister’s decision that raised some eyebrows. When she attempted to register with her new workplace shortly after her marriage, an official asked her why she had recorded her family name in her application, despite indicating that she was a married woman. The official then asked her if she could submit evidence of her subsequent divorce or name change from her husband’s surname back to her family name. For whatever reason, the official did not think that it was possible for my sister to be a married woman who kept her family surname.
While personal preference is, of course, an individual choice, we should remain mindful of the strongly gendered status quo of modern times when accepting certain marriage practices as representing the norm. Even today, it would appear unusual for a woman to ask for a mother’s permission to marry her son, or for a mother to walk her son down the aisle before ‘giving him away’ to his new wife. For many, a man taking his wife’s surname on marriage would be considered altogether radical. While there are no available statistics for the UK, a 2016 study revealed that only 3% of men in the US changed to their wives’ names on marriage.
In early modern Britain, female name changing, as a social and legal practice, was closely connected to property, patriarchy and personhood. The practice of female name changing on marriage did not fully take hold in England until the early modern period, and was primarily practiced in countries that followed English common law and recognised the doctrine of coverture. Female name changing on marriage is therefore a practice that reflects and reinforces a gender hierarchy that only truly began to take hold in parts of Britain over four hundred years ago.
We often assume that women’s rights have developed in a linear fashion, from ‘bad to good’ over time. But principles of coverture appear to have become more restrictive and unyielding over time, rather than less so. Rather than a practice steeped in tradition, female name changing on marriage is a relatively recent phenomenon. Perhaps it is time to look to history for inspiration.
Whether it happened behind closed doors or openly in public spaces, violence against women in intimate relationships occurred as much in the past as it does today. But modern terms like ‘domestic abuse’ or ‘intimate partner violence’ do not easily translate across history. Five hundred years ago, violence against women in intimate relationships was primarily seen as physical ‘correction’: husbands were entitled to discipline their wives and children, and occasional violence was acceptable and even expected in marriage. One historian, Judith Bennett, even depressingly argues that ‘wife-beating’ was ‘a normal part of marriage’ in medieval England.
In our modern era, our understanding of what constitutes abuse in intimate relationships has significantly broadened, encompassing physical violence, but also coercive control and other forms of non-physical abuse, such as emotional, verbal, financial, sexual and even digital abuse. It is also widely recognised that domestic abuse can affect men as well as women, and can occur in same-sex relationships as well as opposite-sex partnerships.
While social understanding and legal acknowledgement of violence against women in intimate relationships has significantly changed over time, important assumptions about domestic violence were forged centuries ago. A first step in tackling intimate partner violence in the 21st century is to understand where these ideas and attitudes have come from. Violence against married women is the most common type of intimate partner violence that appears in historical records. This article focuses on the long history of violence against wives in medieval (c.400-1500 AD) and early modern (c.1500-1800 AD) Europe, while referring to specific examples of court cases from early modern Scotland.
‘Man beating his wife with a stick, c. 1360’. (Source: Public domain via Wikimedia Commons)
In medieval and early modern Europe, a husband had the moral authority to exercise violence to discipline his wife, without resorting to undue force. Catholic and Protestant writers and thinkers discussed models of the ideal ‘godly’ household, with husbands situated at the top of the family hierarchy. The pronouncements on husbandly entitlements cited in Gratian’s 12th-century canon (ecclesiastical) law text Decretum informed generations of opinions:
“A man may chastise his wife and beat her for her own correction; for she is of his household, and therefore the lord may chastise his own… so likewise the husband is bound to chastise his wife in moderation… unless he be a clerk, in which case he may chastise her more severely.”
In other words, violence against wives was considered a necessary consequence of the gender hierarchy in society more generally: husbands were considered ‘kings’ of their households and wives and children were deemed ‘subjects’. A husband was therefore justified in using ‘moderate correction’ to ‘chastise’ his wife but was forbidden from inflicting any serious injury or harm.
By the early modern period, violence against wives was increasingly considered unfavourable and even unacceptable by various moralists and thinkers. The English Puritan William Gouge in his popular household manual Domesticall Duties (1622) argued that it was immoral for a husband to beat his wife. But the majority of Christian thinkers, Catholic and Protestant alike, tended to agree that the authority of the husband required occasional reinforcement with physical punishment, so long as he did not overstep the bounds of modesty and reason.
When violence by a husband against his wife did attract the notice of the courts, responses and penalties varied considerably. Church officials in church courts and magistrates in secular courts tended to agree on one matter: violence against wives had to be justified and motivated by the need to maintain discipline, not the result of uncontrollable anger. Throughout the medieval and early modern period, wife-beating was not considered illegal so long as the husband proved he was punishing his wife for her disobedience or negligence of duty. Secular and ecclesiastical court records across Europe contain thousands of instances of wife-beating. In many cases, the husband was simply reprimanded, fined, or forced to stake pledges from friends and associates to guarantee good behaviour in future.
If a husband exhibited extremely violent behaviours towards his wife, she could appeal to various legal and social measures to try and make him change his behaviours. At other times, a prying neighbour or an eavesdropping servant might intervene to protect a vulnerable wife from her aggressive husband by pushing him away or reporting him to local authorities. In 1651, a Scotsman called William McNair was questioned by church officials for repeatedly beating and ‘striking’ his wife. Neighbours alleged that they heard William regularly assault his wife behind closed doors, with his wife often crying for help late into the night. In response, William argued that he simply ‘corrected’ his wife for ‘not doing what she was told’, which he insisted was ‘lawful’ as her husband. According to William, he was rightfully protecting his household and his reputation.
On certain occasions, wife-beating could be formally charged as an assault, although such prosecutions were rare unless a husband’s violence resulted in his wife’s severe injury or death. A landmark case in medieval Scotland discussed the legal penalties to be imposed on men who were accused of killing their wives. In this case, a husband, who regularly gave his wife a ‘cuff’ to ‘correct her’, was accused of causing her death after she refused food and drink due to his abusive behaviours and subsequently died. In the end, the judges decided that the husband did not cause his wife’s death as he simply ‘chastised her’ as any ‘loving’ and ‘affectionate’ husband would do. If a husband was found guilty of causing his wife’s death, he would face a lengthy prison sentence or, at worst, execution.
A wife sometimes received equal blame for provoking her husband’s violent behaviour. In 1654, a Scotswoman called Jonet McCrae told church officials that her husband regularly beat her when he was drunk, and that:
‘whenever she flees, her husband follows her’.
While Jonet’s husband was criticised for his excessive drinking and violent behaviour, Jonet was urged to return to her marital home and told to ‘amend her faults’ and refrain from angering her husband in future. In 1654, a Scotswoman called Catherine McCray was similarly disciplined by church officials for ‘abusing her husband with her wicked tongue’, despite evidence suggesting that her husband regularly beat her while in a drunken stupor.
Husbands often justified their actions on the grounds that their wives had been unfaithful, or prone to excessive drinking or gambling. If a wife committed – or was perceived to have committed – adultery, or failed to manage her household affairs as her husband’s representative, then the violence employed by a husband was far more likely to be viewed as at least partially excusable in the eyes of the community, and of the law.
This is not to say that husbands were encouraged to physically discipline their wives with impunity, however. In fact, husbands who resorted to excessive violence were regularly reprimanded by neighbours, family members and local authorities. In 1642, a Scotsman called John Matman was banished from his hometown for reportedly placing a scold’s bridle – a metal device used by the church and legal officials to punish ‘gossiping’ women – on his wife’s head ‘out of his own drunken humour’. In 1655, John Ferguson was similarly disciplined by church officials for beating his wife while drunk and attempting to sell her to an English soldier for ‘half a croun’; the equivalent of around £13 today. Husbands who exhibited excessive violence and extreme cruelty towards their wives were seen as dangerous and uncivil, with men only entitled to discipline their wives within the boundaries of patriarchal authority.
‘16th-century scold’s bridle’. (Source: Kelvingrove Art Gallery and Museum, Glasgow, Scotland)
Many aspects of violence against wives seem constant over the centuries. The assumption that the woman was either primarily, or at least partially, responsible for the assault through their behaviour, or as a result of various aspects of their demeanour, persists to this day. In 2021, the World Health Organisation published statistics on violence against women in intimate relationships. Estimates suggest that about one-third (27%) of women aged 15 to 49 who have been in a relationship report that they have been subjected to some form of physical and/or sexual violence by their intimate partner, the majority of whom are male.
Historical cases of violence against wives in medieval and early modern Europe serve as a reminder of the long history of violence against women in intimate relationships. While attitudes have certainly changed – very few people would think it is acceptable for a man to beat his girlfriend or wife ‘within reason’ today – we still have a long way to go to fully eradicate domestic violence and abuse against women in intimate relationships. Challenging outdated, sexist attitudes of gender roles within relationships represents a small step towards building a society where women feel safe and secure, without living in consent fear of reprisal from an abusive partner. Perhaps now is the time to make the 21st century a century for women.
For centuries, nothing determined a Scottish woman’s identity more than her marital status. For a woman living in Scotland during the sixteenth century, her legal rights were inextricably connected to her relationship to a man: as a daughter to a father, a wife to a husband, or a widow to a former husband. Whether a woman was single, married, or widowed greatly defined her legal, social and economic opportunities during a time when men’s laws ruled women’s lives.
Prior to key legislative changes in the nineteenth century, Scottish legal rules concerning married women’s rights restricted a wife’s ability to own property, control real estate, enter into agreements, or initiate litigation without her husband’s consent. In other words, a Scottish wife – whether she was living in the thirteenth century or the seventeenth century – could not ever act in law as an independent person. But what of those married women who broke these legal restrictions and fought lawsuits against their own husbands?
While the legalities of separation and divorce continue to evolve today, it is fascinating to uncover how women managed the breakdown of their marriages in Scotland hundreds of years ago, including how separating and divorcing women sought to protect their rights during a time when they were afforded few.
The history of divorce law – who’s to blame?
The legal history of divorce – and marriage – in Scotland is long and complicated. Following the Reformation of 1560 – when Scotland transformed from a Catholic nation to a Protestant state – divorce was permitted as marriage was no longer considered a sacrament. After 1560, married persons (regardless of gender) could now divorce their spouses on the grounds of adultery, with a statute of 1573 allowing spouses to seek a divorce on the grounds of desertion after four years. It would not be until 1938 that a Scottish woman could seek a divorce on the grounds of cruelty.
In the early modern period, the law demanded that “blame” be attributed to either the husband or wife when the marriage irrevocably broke down. Whoever was to “blame” for the breakdown of the marriage would subsequently face severe consequences on their property and person.
Scottish divorce decreets made the guilty party legally dead in relation to their spouse. If, for example, a wife committed adultery, she lost her dowry (property or money a bride brought to her husband on their marriage), she no longer had an interest in her husband’s moveable property, and she lost her right to terce – lifelong use of one-third of her husband’s lands – along with any land she held jointly with her husband. She also lost custody of her children.
If a husband committed adultery, the wife maintained a right to all her conventional provisions as if he were dead and she retrieved all the goods gifted to her at and since the marriage. She also retained lifelong rights to her husband’s property, including a share of his moveable estate and use of his land. On rare occasions, she could retain custody of her young children, but only if she could prove that her husband was an unfit parent due to excessive violence, neglect or other behaviours unbecoming of a suitable guardian.
A wife could also seek a judicial separation from her husband. If a judicial separation was granted, the husband was ordered to separate himself from his wife and was subject to sanction if he did not adhere. In a proven case of judicial separation, the court possessed the power to make decisions regarding aliment (care provision) to be paid to the pursuer, and the custody, maintenance and education of children born of the marriage.
A judicial separation ordered one spouse to separate from the other ‘a mensa et thoro’ – this meant the parties remained legally married in law, but no longer had to cohabit as husband and wife. It would not be until the Conjugal Rights (Scotland) Amendment Act of 1861 that a wife could dispose of her property as if unmarried, after successfully being awarded a judicial separation.
Who was to “blame” for the disintegration of the marital relationship therefore mattered a great deal in the past, especially to women.
His property – or hers?
Hundreds of years ago, women typically fought with their husbands over money, sex, excessive drinking and violence before the courts – matters that continue to be debated in solicitors’ offices and courtrooms to this day. The kirk session, a lower-level church court headed by kirk elders, sought to foster harmony between warring husbands and wives before referring difficult suits to the presbytery or, finally, Edinburgh’s commissary court, which held exclusive jurisdiction over matters concerning divorce and separation. In 1560, William Rantoun attempted to initiate divorce proceedings against his wife, Elizabeth Geddes, before St Andrews’ kirk session. In response, Elizabeth countered her husband’s divorce suit, accusing him of the ‘abominable crime’ of adultery.
In her counter claim, Elizabeth alleged that her husband of two years had wrongfully withdrawn his affections and abstracted from her company, leaving her ‘utterly destitute of his solace and entertainment.’ She also claimed that her father had provided William with 200 merks in dowry upon her marriage – the equivalent of roughly £2,500 today – and that in return William had endowed her with joint rights to a house in St Andrews. Elizabeth further alleged that William had since moved a local woman named Margaret Aidname into the house, and that her husband spent frequent periods of time – sometimes weeks – in her company. In the record, the clerk notes that Elizabeth stated aloud that ‘I aught and should be separated and divorced from him and liberty to be granted to me to marry again’. She also requested the return of her dowry in full.
Frustratingly, Elizabeth Geddes disappears from the record thereafter. We don’t know if she successfully sued her husband for divorce, acquired a judicial separation instead, or if they subsequently reconciled. We also don’t know if she regained her dowry in full, or if she managed to assert her rights to her house in St Andrews. But what we do know is that many Scottish women like Elizabeth attempted to protect their reputation and rights upon the irrevocable breakdown of their marriage during the early modern period, with some even mustering the courage to challenge their husbands’ authority and rule in public.
The kirk sessions were usually the first point of contact for wives who sought to divorce their husbands. Presbytery courts, on the other hand, regularly heard challenging or puzzling suits referred by the kirk sessions. In 1687, Marie Dhonchie Roy was granted permission by the presbytery of Dingwall to seek a divorce from her cheating husband, Kenneth McCurchie, before Edinburgh’s commissary court. Marie’s case had been referred from Inverness’ kirk session, revealing how women interacted with various judicial authorities when seeking a final break from their spouses.
Yet, despite the introduction of divorce laws in the late-sixteenth century, a relatively small number of women successfully divorced their husbands on the grounds of adultery or desertion in Scotland prior to the nineteenth century. The high cost of litigation meant that it was often only wealthy women who could achieve a divorce before Edinburgh’s commissary court, as has been explored in depth by the historian Leah Leneman. Most women instead sought a judicial separation from their husbands. This meant that the parties were not required to live together and behave like husband and wife; in the eyes of the law, however, they were still technically married and could not remarry another person.
Many ordinary women sought to highlight their husbands’ maltreatment to secure a favourable financial settlement, if not a judicial separation or divorce. In 1589, Elspeth Dundie, the wife of Duncan McGrigor, alleged before Perth’s kirk session that her husband hit her, plundered her house, and had ‘done many other injuries to her.’ Elspeth asked the kirk elders if they could ‘modify her something to live on’, an arrangement that would avoid without the cost and hassle of seeking an expensive judicial separation or divorce before Edinburgh’s commissary court.
Recognition and rights
Divorce law in Scotland has, of course, significantly changed since the sixteenth century. Today, there is only one ground for divorce in Scotland, the irretrievable breakdown of the marriage, which is proven in one of four ways: adultery of the other spouse; “unreasonable behaviour”; one year’s separation if the other spouse consents; or two years’ separation if the other spouse does not consent. Divorce law no longer strips the “guilty” party of their assets, and parties can now apply for legal aid from the Scottish Legal Aid Board if they are unable to fund the costs themselves. Women who find themselves trapped in unhappy or abusive marriages can also seek assistance and advice from feminist organisations, such as the Scottish Women’s Rights Centre or Scottish Women’s Aid.
Prior to the introduction of “no fault” divorce in England and Wales in April 2022, a spouse had to prove that the marriage had irretrievably broken down, which could be shown in one of five ways; the adultery of the other spouse; “unreasonable behaviour”; desertion by the other spouse; two years’ separation if the other spouse consents to the divorce; or five years’ separation in which case no consent is needed. In Scotland, the separation grounds were shortened from two years and five years respectively in 2006.
The introduction of “no fault” divorce in England and Wales on 6 April 2022 is the result of years of campaigning by the legal community. Legal practitioners have argued that the current fault-based system in England and Wales is unnecessarily provocative, in that couples have to appropriate blame for the breakdown of the marriage.
There has been some pushback, however, from Scottish legal experts to the introduction of a “no fault” divorce system in Scotland, particularly given the gendered implications of the change. Family law specialist Lucia Clark argues that husbands could potentially initiate divorce proceedings without citing any particular reason for the breakdown of the marriage. Given that women continue to face a motherhood penalty, gaps in work, and remain primarily responsible for the care of children following the breakdown of a relationship, the change in divorce law in England and Wales could leave women who perhaps wish to remain married left worse off financially as a result of the divorce.
Over the past two centuries, Scottish feminists and their supporters have campaigned for women’s right to own property, to seek marital separation and divorce, and to obtain custody of their children before the courts. But women’s struggles for equality in Scotland is not a modern phenomenon.
Hundreds of years ago, women discovered ways to manoeuvre within and around the Scottish legal system in order to gain some form of relief from their marital problems. Just like women today, many were successful in obtaining economic support, if not a final break from their spouses.
When Jonet Pollock brought suit before Glasgow’s commissary court in 1694, she listed a string of accusations and complaints against her ex-partner, William Jamieson. In her complaint, Jonet insisted that William had refused to pay an outstanding debt due to her, despite the fact she had obtained a favourable ruling from the commissary judge four years previous. Secondly, Jonet argued that William had refused to pay child maintenance following the birth of their son John Jamieson in 1690, alleging that she was owed money for solely providing their son with food, clothing and shelter. Finally, she accused William of breach of promise of marriage, alleging that he had promised to marry her in 1691, and that he had since refused to complete the bond of matrimony with her before church and congregation. As a result, Jonet sought maintenance and damages worth roughly £21 Sterling – a large sum roughly equivalent to £2,500 today – as compensation.
Unsurprisingly, William refuted these claims on both his character and his property. In response to the second charge, William insisted that he had visited Jonet’s household in 1692 and had offered to take their son into his household and bring him up so ‘[he] might be frie of alimenting [maintaining] the bairn [child] in all tyme thereafter.’ And while William accepted that he was indeed John’s father, he argued that he had never agreed to marry Jonet, and that she had instead fabricated the claim following their tryst and subsequent falling out.
This complaint, just one of thousands heard in courtrooms across early modern Scotland, paints quite a picture. On the one hand, it depicts a bitter, personal dispute between two individuals who were engaged in a lengthy legal battle over issues surrounding parental rights and responsibilities, marriage, and debt – matters that continue to be heard in lawcourts to this day. On the other hand, it reveals that women sought legal intervention when they felt wronged, especially when dealing with issues concerning their complex status and rights. In the end, the judge ultimately sided with Jonet, ordering William to pay the outstanding debt and child maintenance until their son had reached the age of fourteen, though the compensation was admittedly reduced. The judge did, however, acquit William from paying damages for breach of promise of marriage, finding no evidence that he had promised to take Jonet as his lawful wife. Even without entirely favourable resolutions, civil legal records tell us much about women’s access to justice and the routes for redress that were available to them during the early modern period.
My research seeks to bring to life the experiences of thousands of ordinary women as they negotiated their legal status and property rights before the burgh (town) and commissary (consistorial) courts of early modern Scotland. During this period, the burgh and commissary courts were key sites for the provision of law and civil justice within urban and rural communities, and therefore regularly dealt with matters that pulled in women and their rights. Despite their inferior legal status and property rights within a patriarchal society, women were found in all forms and manners of civil legal matters and disputes – as pursuers, defenders, witnesses and even legal representatives of their husbands, children and kin relations. Though they did not appear in the same numbers as men, women’s legal action was not exceptional, nor was it prevented.
Some women were involved in a high number of pleas, such as Bessie Lindsen who appeared before the burgh court of St Andrews on nine separate occasions in 1601 when embroiled in a variety of property quarrels involving neighbours and kin relatives. Others were fleetingly involved when their circumstances drastically changed, such as Agnes Crawford who secured a yearly maintenance payment of £31 Sterling – roughly equivalent to £4,100 today – before Glasgow’s commissary court in 1616 after her husband of thirty-one years abandoned her, apparently without reason. Whether claiming their share of inheritance, protecting their property within marriage, or pursuing their unruly husbands for spousal abandonment, women were pulled into a wide range of legal negotiations and disputes throughout their lifetimes, with their complex rights to property demanding particular attention before the courts.
In the popular imagination, Scottish women are often remembered as victims or rebels of a patriarchal social order. Museums display the tools that were used to silence and punish disobedient women throughout history, while students at schools and universities are taught about the thousands of women who were persecuted during the Scottish witchcraft panics. Today, feminist activists are even campaigning for a national memorial to the thousands of people (mainly women) who were persecuted for the crime of witchcraft in early modern Scotland. But that is only half the story.
While Scottish court books are filled with countless tales of women branded as witches, scolds and sinners, thousands of ordinary women also left their mark, and the purpose of my research is to uncover the everyday (and often relatively mundane) matters that concerned women during this period. Whether appearing through a lawyer, voicing their complaints independently, or avoiding lawsuits entirely, women in early modern Scotland clearly knew their way around the patriarchal legal system; not all fell victim to it.
I’m really grateful to Women’s History Network for their support and encouragement of my research into women’s access to justice in early modern Scotland. This Fellowship enables me to complete my monograph and other related publications/activities over the next year. Thank you!
On the 6 and 7 May 2021, the ESRC project held a two-day symposium on the theme of gender and justice in Scotland in historical and legal perspective. Day one included three panels – a first on intimate lives, a second on employment opportunities, and a third on seeking justice – that explored women’s rights in Scotland from the medieval to modern period.
The first panel on women’s intimate lives brought together Caroline Derry and Fergus Smith to explore how women’s private lives were mediated before the courts during the nineteenth century. Derry discussed a prominent case heard before the Court of Session in 1810 – Woods and Pirie v Cumming Gordon – which detailed the experiences of two schoolmistresses (Misses Jane Pirie and Marianne Woods) whose school had been forced to close when the defender (Dame Helen Cumming Gordon) withdrew her granddaughter following suspicions of sexual impropriety. It was noted that Dame Gordon’s granddaughter Jane Cumming was, in fact, the illegitimate child of Dame Gordon’s eldest son, George, and his 15-year-old Indian “lover”, begotten while the young man was stationed in Patna in the service of the East Indian Company. Seeking thousands of pounds in damages, the two schoolmistresses claimed that their reputations had been irreparably destroyed as a result of the allegations, and in the end, the schoolmistresses won their case by a vote of four to three. Derry highlighted that while the judges of the Court of Session drew upon specific legal rules, authorities and techniques to assess the evidence, they also used and articulated their understandings of gender, class, ethnicity and empire within the records.
Smith then took us to the lives of poor women in the nineteenth-century sheriff courts to explore how gender intersected with ideas surrounding class and poverty. Smith gave an overview of his research into the tens of thousands of surviving civil jurisdiction records from the nineteenth-century sheriff courts, finding that women were highly visible as litigants across the period. For instance, of the 18,000+ cases sampled across five different sheriff courts, Smith discovered that at least 20% of all cases involved at least one woman, and that single mothers regularly secured legal aid when pursuing care provision from unwilling fathers.
A second panel on employment opportunities included papers by Alice Krzanich and Amber Rose Maggio. Krzanich explored the working lives of female domestic servants in the nineteenth century, arguing that while the hiring contract supported and reinforced patriarchal ideals within the household, it also provided a level of protection to women who were ultimately treated as contractual workers before the courts. She argued that female domestic servants regularly took their masters or mistresses to court when they felt wronged and that, in fact, the contract set significant limits on the employer’s authority. Whilst Krzanich explored women’s employment rights in the past, Maggio brought us forwards to women’s representation in the legal profession today. The majority of law graduates and solicitors in Scotland are female. Yet, Maggio argued that women still continue to be underrepresented in the legal profession in Scotland. She further contended that women’s participation in both the administration of justice and legal educational institutions are a prerequisite for access to justice in all areas of the law. For Maggio, the ‘leaky pipeline’ that sees women falling out of the legal system must address historical factors and current social developments in order to bridge the gap in women’s legal careers.
A third panel on seeking justice included papers by Sierra Dye and Laura Bell. Dye took us back to the late medieval/early modern period to explore how women defended themselves against accusations of witchcraft before the courts. Whether undermining the reliability of witness testimony or pursuing suits of defamation and slander as a way to remove and reverse the stigma of witchcraft accusations, women manoeuvred their way around the patriarchal legal system; not all fell victim to it. Bell then turned to look at how women interact with the legal system today when reporting Image-Based Sexual Abuse (IBSA) – what she argues should be understood as an act of violence against women. While the law is more robust in Scotland regarding this issue than in England or Wales, Bell argued that allegations of IBSA are still rarely prosecuted, with the law struggling to grapple with the high volume of reported cases in our increasingly digital world.
Day two included three panels – a first on children and reproductive rights, a second on cohabitation, and a third on judicial separation and divorce – and a roundtable. The panel on children and reproductive rights brought together Elly Nowell and Ruth Friskney. Nowell explored reproductive autonomy and the right to choose a caesarean, noting that medical paternalism intersects with misogyny to produce long-lasting sites of discrimination against women. She argued that women are rarely informed of the risks of pregnancy or childbirth, and that a vaginal delivery is viewed by medical practitioners as ‘morally preferable’ to a caesarean section. Reproductive autonomy is not only a gendered issue but also a racial one. For instance, while the UK’s maternal death rate is low, black women are four times more likely to die during pregnancy, childbirth and for up to six weeks after, than white women. Moving on to unpick the barriers to children’s participation rights, Friskney explored key problems with child contact and failures to protect women and children affected by domestic abuse in Scotland today. While the United Nations Conventions on the Rights of the Child established a range of participation rights for children (such as a child’s right to participate in major decisions about their lives through to broader political participation rights for children), Friskney argued that children are often ignored or overlooked in contact and residence cases, and that children’s participation rights are often subject to dispute. In her paper, Friskney called for the urgent need to improve the status of children not only in implementation but also in the making of family law.
A second panel on cohabitation included papers by Deborah Siddoway and myself. Siddoway explored how the two marriages of Captain John Campbell of Carrick – a member of the Scottish gentry – ultimately led to the enactment of the Clandestine Marriages Act of 1753 in England and Wales. Uncovering the convoluted history of Campbell’s marriage entanglements, Siddoway examined the evidence that was heard before the House of Lords; this included the letters that he wrote to both of the women who claimed to be his wife, and testimonies of the hardship that the decision inflicted on one of the women (including the bastardisation of her children, the loss of her husband’s pension and the disastrous injury to her reputation). I then turned to briefly chart the changing definition of cohabitation in Scots law throughout history. The Family Law (Scotland) Act of 2006 contends that a cohabiting couple are two persons living together ‘as if they were husband and wife’, a legal phrase that, in fact, can be traced back to the medieval period. I argued that further legislative reforms to the law of cohabitation in Scotland must take into consideration the risks in defining cohabitating relationships as comparable – yet unequal – to marriage, and must recognise the adverse effects on women’s rights within the long history of this struggle.
The final panel on judicial separation and divorce brought together Mairi Hamilton and Rosemary Elliot. Focusing on the records of cases of judicial separation on the grounds of cruelty during the nineteenth century, Hamilton explored women’s accounts of abusive behaviours before the commissary and sheriff courts. While the law was indeed a ‘patriarchal structure’, Hamilton also noted that women were not entirely powerless, with many appearing as agents in negotiation with legal authorities. Elliot then turned to explore women’s rights in relation to divorce in Scotland between 1955 and 1975, finding that the proportion of divorces initiated by women increased from just over half to three quarters, and the largest increase was in divorces brought on the grounds of cruelty. She argued that as divorce became more liberal, the state – through the courts – increasingly sought to regulate the types of arrangements which should be made by divorcing couples where children were involved. Elliot considered what implications these changes had for women seeking divorce, particularly those with children.
The whole symposium raised a number of interesting questions and conversations. Jane Mair then led a final roundtable discussion that sought to tie together the various themes and issues that were raised throughout the event. The importance of collecting data was highlighted by Mair, as legal practitioners are often faced with a lack of statistics when attempting to grapple with issues that affect women’s access to justice in modern day Scotland. A key point raised by Mair centred on the benefits reaped when historians and legal scholars work together when discussing women’s rights across time and place. What does thinking about women’s rights in the medieval period mean for our understanding of contemporary issues? And what does thinking about women’s rights today mean for our understanding of the past? In order to understand how the law functions today, we agreed that we must look to the past. Women throughout history have struggled to achieve and, on many occasions, gain access to justice; a matter that persists today. Legal practitioners and government officials, and so on, are grappling with the same or similar issues as their equivalents were in the past; from single mothers seeking care provision from unwilling fathers, to women reporting their violent partners for domestic violence and abuse. Women today also continue to face barriers in comparable ways to their historical sisters; from abandoned wives seeking legal aid to pursue recalcitrant husbands, to widows securing legal representation to settle their marital estates. While the tide is certainly shifting, there is still a long way to go.
The recognition that gender intersects with race, ethnicity, class and status was also raised in the roundtable. Women are often viewed as a homogenous group of people with shared interests, yet the papers raised important issues with regards to wider factors that influence women’s rights. It was also noted that the long history of women’s rights is a story of both continuity and change. As raised by Krzanich, women’s rights have not necessarily developed in a teleological fashion, from ‘bad to good’ over time, but the law – both past and present – is capable of being mutually supportive to and discriminatory against women. We often look to moments throughout history where women gained a significant financial or legal advantage, such as the Conjugal Rights (Scotland) Act of 1861 or the Married Women’s Property (Scotland) Act of 1882, without fully understanding how these pivotal moments transformed women’s access to justice in practice. In Scotland today, there is an underlying assumption that gender equality has been achieved – at least in a legal sense – without recognising the barriers that women continue to face on a daily basis. In 2021, women (especially single women and lone parents) are more likely to live in poverty than men and women on the whole continue to face the brunt of caring responsibilities, especially when a relationship breaks down. These stark inequalities have only been further highlighted over the past year due to the COVID-19 pandemic, the consequences of which will not be fully understood for years to come.
Rebecca Mason is the recipient of an Economic and Social History Postdoctoral Fellowship 2020/21 and a historian of early modern gender and law based at the University of Glasgow.
*First published on the University of Glasgow School of Law Blog on 18 December 2020*
Picture: David Allan, The Black Stool (The Stool of Repentance), 1795. National Galleries of Scotland, Accession number: D 4373. Source: https://www.nationalgalleries.org/art-and-artists/8323/black-stool-stool-repentance. Here we can see a young mother weeping while cradling her new-born infant, while her own mother furiously glares at the alleged father of the child. The young bachelor is being publicly reprimanded by an elder of the kirk session, while his own parents hang their heads in shame beneath him.
Cohabitation in Scotland: Lessons from history
Cohabitation, in very broad terms, can be defined as an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. Throughout history, couples cohabited, rather than married, for a variety of reasons, often due to existing impediments to marriage or lack of resources to fund the costs of a wedding ceremony. Today, many couples in Scotland choose to cohabit to test their compatibility before they commit to marriage. For others, the decision to cohabit is a lifelong choice as the social capital of marriage has waned to a simple representation of commitment (Kok and Leinarte 2015: 508). With short-term and life-long cohabitation on the rise, nearly 18% of families in Scotland today are headed by a cohabiting couple (ONS 2020). As more and more people opt out of marriage in favour of cohabitation, how has the Scottish legal system grappled with the regulation of such private relationships? This essay shows that the legal regulation of cohabitation in Scotland is, in fact, a historical issue dating back to the reform of marriage law in the early modern period. It traces the long history of cohabitation in Scotland from the early modern period to the present day and investigates the changing effects of cohabitation on the property rights of women throughout history. In providing this crucial background, it situates ongoing debates surrounding the reform of cohabitation law in Scotland in historical perspective, and explains why this debate presents as a feminist issue.
Cohabitation and marriage: What’s the difference?
Cohabitation in Scotland has a very long history which is intimately tied to the history of marriage and the regulation of marriage. After the Scottish Reformation of 1560, issues relating to marriage fell under spiritual and secular jurisdictions. In early modern Scotland, parental consent was not strictly necessary to conduct a valid marriage. Marriage was made by the free consent of two marrying parties, provided they were of age (12 for a girl, 14 for a boy), not already married, and not within the prohibited degrees of kinship (blood relatives) or affinity (in-laws). Legal writers of the time – such as Sir Thomas Craig in his Jus feudale (c.1606) – tended to agree, however, that a father could reasonably disinherit his son if he married without seeking prior permission. While parental consent was not required, it was encouraged.
At the apex of the hierarchy of marriages were those that were conducted in a ‘regular’ manner. A regular marriage – according to church, law and state – constituted a public proclamation or the reading of the banns (the promise to marry) on three consecutive Sundays in the parish church, followed shortly after with a ceremony presided by a minister in front of reputable (male) witnesses. Many young couples who followed this path to marriage also wrote an antenuptial marriage contract, which specified the property rights of both parties within the marriage and upon its eventual conclusion at the death of either spouse. Marriages conducted before the congregation and community offered immediate social status and legal rights to spouses, as well as any children born as a result of the union.
Yet, as consent alone was the main concern in Scots law in terms of establishing a binding marriage, other forms of marriage – known as ‘irregular’, ‘disorderly’ or ‘clandestine’ marriages – were considered valid. Irregular marriages were established by the act of giving present consent (marriage de presenti) or the promise of marriage followed by sexual intercourse (promise subsequente copula). Marriage by cohabitation with habit and repute was also, on many occasions, understood as a legitimate form of marriage, though subject to significant legal scrutiny. Where a man and woman lived together, treated each other as husband and wife, and were ‘repute and haldin’ by their neighbours and kingroup as a married couple, the law upheld their marriage and the legal benefits that it entailed (Barclay 2019: 174-176). For instance, a 1503 act concerning wives’ terces entitled women who were ‘repute and haldin’ by the community as lawful wives to claim the right of terce (a customary share of their husband’s land upon widowhood), till the contrary be proved. While it remains difficult to assess the frequency of cohabitation in Scotland in the past, historians Leah Leneman and Rosalind Mitchison estimated that during the eighteenth century in Troqueer in southwest Scotland, irregular marriages made up at least a third of all marriages in the parish (Leneman and Mitchison 1989: 79-103).
Marriage by cohabitation and repute was understood as a legitimate – albeit irregular – form of marriage in Scotland until 2006, when it was finally relegated to the history books. At the same time, the 2006 Family Law (Scotland) Act introduced new rights defining the legal position of a cohabitant when their cohabitating relationship ended following separation or death of either party. Section 25(1) of the Act defines a ‘cohabitant’ as either member of a couple consisting of a) a man and woman who are (or were) living together as if they were husband and wife; or b) two persons of the same sex who are (or were) living together as if they were civil partners. Although section 25 still includes elements (a) and (b), since the Marriage and Civill Partnership (Scotland) Act 2014, (b) is treated as having been deleted. In other words, both same sex and opposite sex cohabitation in Scotland is defined in relation to marriage. But what exactly does it mean to live as a married couple?
This narrow definition of ‘cohabitant’ has been criticised in recent years by family law experts and feminist academics (Mair and McCarthy 2016). The Scottish feminist policy organisation Engender recently criticised the definition of cohabitants in the Act as ‘outdated and increasingly open to conflict, given the evolving and increasingly individualised ways in which married couples define their relationship’ (Engender 2020). In the early modern period, women were expected to conform to strictly gendered behaviours surrounding their position and role within the family in order to acquire the legal and social status of ‘wife’. Antiquated notions of gender roles within relationships and families continue to affect the rights, status and progression of women in Scotland today. Even with women’s greater participation in the workforce, the division of paid and unpaid work carried out within the household remains highly gendered, with women making most of the unpaid domestic contributions and bearing the weight of caring responsibilities (Garland 2015: 311). The presumption that we collectively share a notion of what it means to live as ‘husband and wife’ in modern day Scotland can, in fact, be traced to conversations of what it meant to be married in the early modern period.
Regulating marriage and intimate relationships in the past
Unmarried cohabitation is often seen by many as a modern phenomenon, but in fact it has long historical precedents in Scotland. The regulation of marriage and intimate relationships has been identified as a central part of the Kirk’s remit following the Scottish Reformation of 1560. Much of the business of the kirk session, the lowest in the Presbyterian hierarchy of church courts, involved sanctioning those who failed to abide by church discipline. Illicit sexual intimacy between opposite sex couples – ranging from fornication (sex outside of marriage) to adultery (sex with another while married) – was subject to church discipline in the kirk sessions. Women and men who had sex outside of marriage – often discovered after a woman had given birth to a child outside of wedlock – were prosecuted as ‘fornicators’ by the kirk sessions, and were expected to pay a fine and perform public penance before the congregation. Women and men who committed adultery were also subject to church discipline, with repeat offenders ultimately excommunicated or even banished from the parish. Sex and procreation within a lawful marriage between a man and a woman was viewed – by the Kirk and by society in general – as the only legitimate site for intimate expression and reproduction.
As well as policing illicit sexual behaviour, kirk elders investigated and questioned couples whose claim to marriage was tenuous or, in many cases, did not cohere with church requirements. Irregular marriage did not conform to church and state regulations and was thus viewed as legally and morally controversial. A 1661 act against clandestine and unlawful marriages stated that couples who married in a clandestine way were to be imprisoned for three months and fined relative to their rank and status, ranging from 100 merks ‘for each person of inferior quality’ to £1,000 Scots for noblemen. Yet, despite being subject to state regulation and church discipline, a clandestine marriage was still legally valid. The kirk sessions faced the arduous task of distinguishing cases of sexual non-conformity (i.e. fornication or adultery) from cases of marital non-conformity (i.e. irregular marriage by promise or marriage by cohabitation), as the two could potentially overlap. Local authorities feared that irregular marriage could be (and indeed often was) an attempt to cover up fornication which had led to pregnancy outside of wedlock (Leneman and Mitchison 1993: 846; Barclay 2019: 165). In June 1577, Thomas Bishop confessed his ‘cohabitation and carnal deal’ with Violat Dog before Perth kirk session, and in doing so promised to pay 40 shillings Scots to the poor and complete the bond of matrimony with Violat within 15 days. Yet, according to the parish registers, Thomas and Violat had already married three months previous in March. The couple may have admitted to cohabiting prior to marriage before the kirk session as Violat was visibly pregnant much too soon after their official ceremony.
The fear that a married person might cohabit with a person other than their spouse was crucial to the regulation of marriage and intimate relationships. Those couples who cohabited while already married to another were treated severely by church and secular courts as they were committing the sin of adultery or, in some cases, bigamy. In St Andrews burgh (town) court in 1600, Elizabeth Fallins and George Ochiltrie were permanently banished from the city for their ‘wyld and abominable lyf in cohabiting togither’ for many years. The issue here was not that Elizabeth and George were simply living together as unmarried persons, however. The town bailies alleged that Elizabeth was ‘alreadie mareit to ane uther man’ and that she had not secured a divorce before Edinburgh’s commissary court, which held jurisdiction over matters relating to matrimony. The town bailies even publicly reprimanded and fined the man providing shelter to the cohabiting couple, perhaps as a warning to others who opened their households to suspect individuals. Those unmarried couples who quietly cohabited together without raising the attention of the kirk or their community remained largely unobserved by local authorities and are therefore largely absent from the historical record.
Living as ‘husband and wife’: Quantifying claims
A woman’s decision to either marry or cohabit with a live-in partner had – and still does to this day – very real implications for her access to property. The institution of marriage, while restricting women’s property rights and legal status within marriage during the early modern period, clearly provided women with significant advantages to be exploited at law. Antenuptial marriage contracts consistently note that the man was ‘takeand the burden upon him’ for his future wife. Husbands were also expected to provide their wives with clothing and aliment (care provision) relative to their rank and status and could find themselves before the law if they refused to adequately do so during marriage. Husbands were responsible for their wives’ debts, including those conducted by them as single women before marriage. Upon widowhood, women held concrete rights to their marital property, including one-third of their husbands’ moveable estate – which increased to one-half if no children were born of their marriage – as well as liferent rights to land (both terce and jointly-owned land). Divorce was permissible in Scotland on the grounds of adultery from 1560 and on the grounds of desertion from 1573. If a wife successfully divorced her husband on the grounds of adultery or desertion, she maintained legal right to all her conventional provisions as if he were dead and reclaimed ownership of all property gifted to her at and since the marriage. It seems that for a cohabiting woman to reap the legal benefits afforded to a wife in early modern Scotland, she ultimately had to prove that she was ‘repute and haldin’ by the community as married.
But how could an early modern woman prove before the law that she and her partner lived ‘as man and wife’, and that their cohabitation was an irregular form of marriage? Women in cohabiting relationships usually appeared before the courts when legal action was triggered as a result of their radically uncertain marital status, often following abandonment. In 1699 Mary Lyon alleged before the Court of Session – Scotland’s highest civil court – that her live-in partner James Gordon, a widower, had wrongfully seized her property and unceremoniously turned her away from their household. While she admitted to cohabiting with James for several months, caring for his children and sharing his bed, she alleged that James had promised marriage ‘by a writ under his hand’, and that after living ‘as man and wife’ James had wrongfully seized her property and turned her out of their home. As Mary had provided evidence that her partner James had promised marriage but later reneged on his promise, and that the community had ‘repute and haldin them as man and wife’, the Lords ordered James to pay Mary 200 merks yearly in aliment (care provision). Whilst they stated that James deserved to be punished for ‘abusing her so’, they added that ‘women who prostitute themselves are not to be encouraged nor rewarded’, explicitly admonishing those women who lived with a partner before legitimizing their marriage before the church and state. In a similar case brought before the Court of Session in 1710, Anna Cameron, while heavily pregnant, raised a summons of aliment against her partner John Innes for £50 Sterling after John abandoned her and their children. Anna asserted that while she was irregularly married to John ‘by an Episcopal minister, and without proclamation’, she could prove that they had cohabited ‘as man and wife’ for more than three years. Uneasy with Anna’s precarious marital status, however, the Lords instructed her to prove that her cohabiting relationship was an irregular marriage before the Commissaries in Edinburgh. Edinburgh’s commissary court held exclusive jurisdiction in cases of a strictly consistorial nature, such as marriage, divorce, separation and legitimacy. Women who claimed to be part of a cohabiting union were expected to prove before the commissaries that their conjugal union was an irregular form of marriage before the Court of Session could decide on whether or not they were due aliment. Amongst legal thinkers, the controversy arose over the issue of how to differentiate cohabitation, as a form of irregular marriage, from illicit sexual or intimate relationships, such as fornication or concubinage (Leneman 1999: 672). Repeated references in legal writings to women ‘ensnaring’ young men into situations where they might be found married, whilst the men thought they were simply engaging in a casual relationship, highlights the sexual double standard underlying women’s behaviour and choice of partner in the past. In the past, cohabitation only gave women specific rights to property when it was recognised as a form of marriage.
As well as affecting the rights and status of women, cohabitation also impacted on the property rights of any children born from the relationship. The children of cohabiting couples attempted to establish their legitimate family status before the law in a bid to secure inheritance rights in the past. In 1711, Lydia Forbes, the daughter of the recently deceased Captain Charles Forbes, initiated litigation before the Court of Session against her aunt – her father’s sister – Jean Forbes, alleging that, as the legitimate daughter and sole heir of her father Charles, she was entitled to assume control of his estate. Jean, on the other hand, asserted that her niece Lydia was, in fact, illegitimate and had no rights to her father’s estate. The issue at hand here centred on the legal status of her father’s and mother’s relationship. Lydia provided four male witnesses – her father’s landlord, a tailor, and two soldiers – to support her inheritance claim. The men told the court that they had seen Charles and Jean – Lydia’s father and mother – ‘converse together as man and wife’ for three or four years, and that they were ‘reputed by the neighbourhood as such.’ The men agreed that Charles had ‘owned the said Lydia for his daughter’ and that they had ‘never heard her called a bastard’. One of the men even asserted that Lydia’s mother would sit at the head of the table while nursing Lydia on her lap, and that they regularly heard Charles say that ‘he behoved to go to Jean to get a recruit of money’, which shows he allowed her the management of his purse. By citing evidence of her mother’s respected position within the household as a dexterous household mistress and caring mother, Lydia attempted to strengthen her legal claim to her father’s estate as his legitimate daughter.
In her response, however, Jean Forbes asserted that Lydia’s mother ‘was in the repute of a miss and whore to the Captain’ and that even after his death she did not put in a claim to terce or any share of his moveables ‘as a married woman certainly would have done.’ She also alleged that Charles had designated Lydia as his ‘natural daughter’ – i.e. illegitimate – in his will and testament, and produced a certificate to prove that Lydia’s mother was confined in the correctional house of Bridewell in London as a ‘bad woman.’ In her defence, Lydia asserted that her parents had cohabited as ‘man and wife’ and were ‘holden and reputed’ by the community as such – this alone, she argued, presumed a solemnisation of their marriage, without the necessity of further proof. While she admitted that her father Charles had disowned her mother later on in life, she asserted that ill-feeling could not dissolve the marriage bond, ‘for parties wearying of one another sets them not at liberty.’ Yet, as Jean submitted evidence that proved Charles had designated Lydia as illegitimate in his will and testament, the Lords decided to rule that the cohabitation, in this particular case, did not amount to a lawful marriage, and therefore granted full control to Jean Forbes as her brother’s next of kin. Lydia, as a result of her mother’s tenuous claim to marriage, was ultimately unsuccessful in securing rights to her father’s estate.
While it is impossible to attempt to recover empirical ‘truth’ from stylised legal records, it is worthy to focus on the manner of the descriptions contained within them and unpick the gendered behaviours that cohabiting women emphasised in their legal pleadings. Women who cohabited with live-in partners without completing a regular marriage before the Kirk stressed that they had adhered to behaviours that were traditionally performed by wives, including caring for children, sharing a marital bed, and managing the household economy. When the relationship irrevocably broke down, cohabiting women argued that their partners had withdrawn the promise of marriage, through no fault of their own. Proving that they were ‘repute and haldin’ by the community as irregularly married in order to receive some form of financial benefit before the law remained at the forefront of women’s legal pleadings.
Conclusion
In the past, women clearly struggled to gain some form of financial benefit following the breakdown of a relationship that was not legitimised before the church and state. Women today continue to struggle to secure property rights following the breakdown of a cohabiting union. When a couple decides to divorce in Scotland, the Family Law (Scotland) Act 1985 ensures that assets acquired during marriage are generally shared equally, and disadvantages and advantages can be accounted for, at least financially. If a cohabiting couple separate, the woman is left with much less certain financial protection than that afforded to divorcing spouses, despite the fact that the relationship is functionally identical to many marriages. Eilidh Dickson, Engender’s Policy and Parliamentary Manager, has recently asserted that ‘[w]hen opposite sex cohabitants separate, they face the same gendered realities as married couples – men leave largely with their earning potential intact, while women have experienced a motherhood penalty, gaps in work, and remain responsible – sometimes even more so – for the care of children’ (Dickson 2020). The law currently assumes that cohabiting couples have made a conscious decision to avoid the legal regulation of the state and therefore avoid financial obligations to one another. This can lead to significant injustices for women and children, particularly in cases where a mother has given up or reduced her work to raise a family.
The Scottish Law Commission recently reported on the lack of public awareness and possible misconceptions of the rights of cohabitants in Scotland and across the rest of Britain today (SLC 2020). There is considerable confusion amongst the Scottish public concerning the legal status of cohabitants, with a majority (57%) reporting the belief that cohabiting couples have a ‘common law marriage’ that gives them the same rights as married persons. Similarly, a significant number (35%) of those questioned inaccurately believed that a woman who had cohabited with her partner for more than ten years would have the same rights as a married woman in relation to property on the death of her partner. The persistent myth that a couple would become common-law married by virtue of performing certain behaviours rather than as the result of acquiring a status, and would then acquire the bundle of rights and duties of marriage, remains deeply ingrained in national consciousness (Chambers 2017: 150-151).
Women often only become aware of their limited rights within cohabiting partnerships when the relationship abruptly ends. For both opposite and same sex cohabitating couples to gain some form of financial provision following the breakdown of their relationship, they are required to prove that they had lived together in a relationship that resembles a marriage. Further legislative reforms to the law of cohabitation in Scotland must take into consideration the risks in defining cohabitating relationships as comparable, yet unequal, to marriage, and recognise the adverse effects on women’s rights within the long history of this struggle. Drastically amending the reference to living together as ‘husband and wife’ in Section 25 of the 2006 Family Law (Scotland) Act would represent a step away from privileging marriage as the default mode for adult life, and remove any confusion to the persistent myth of the existence of ‘common law marriage’ in modern day Scotland.
Works Cited
Barclay, Katie. ‘Marriage, Sex and the Church of Scotland: Exploring Non-Conformity Amongst the Lower Orders’, Journal of Religious History 43:2 (2019), 163-179.
Chambers, Clare. Against Marriage: An Egalitarian Defence of the Marriage-Free State (Oxford 2017).
Garland, Fae. ‘Gender Imbalances, Economic Vulnerability and Cohabitation: Evaluating the Gendered Impact of Section 28 of the Family Law (Scotland) Act 2006’, The Edinburgh Law Review 19:3 (2015), 311-332.
Kok, Jan and Leinarte, Dalia. ‘Cohabitation in Europe: a revenge of history?’, History of the Family 20:4 (2015), 489-514.
Leneman, Leah. ‘Wives and Mistresses in Eighteenth-Century Scotland’, Women’s History Review, 8:4 (1999), 671-692.
Leneman, Leah and Mitchison, Rosalind. ‘Clandestine Marriage in the Scottish Cities, 1660-1780’, Journal of Social History, 26:4 (Summer 1993), 845-861.
Leneman, Leah and Mitchison, Rosalind. Sexuality and Social Control: Scotland 1660-1780 (Oxford 1989).
The Scottish Feminist Judgments Project (SFJP) led by Sharon Cowan (University of Edinburgh), Chloë Kennedy (University of Edinburgh) and Vanessa Munro (University of Warwick). See Coyle vs Coyle 2004. Source: https://www.sfjp.law.ed.ac.uk/ Accessed 1 December 2020.
Women, Marriage and Law in Scotland 
