Finding evidence for divorce of Hugh Sillars and Agnes Macculloch in mid-19th Century Scotland?

Question

This question involves some of the same family as an earlier question of mine (Finding New York City/State records relating to Sellars family (British subjects) births/deaths mid 19th century?) but is intended to be standalone.

My 4th great grandparents Hugh Sillars and Agnes Macculloch were married on 15 Aug 1830 at Irvine, Ayrshire, Scotland.

Hugh and Agnes had five children:

• Robert Sillars born 15 Oct 1830, and christened 7 Nov 1830 at Dundonald, Ayrshire, Scotland with parents Hugh Sillars and Agnes Mcculloch
• Agnes Sillars born 13 Apr 1833, and christened 28 Apr 1833 at Dundonald, Ayrshire, with parents Hugh Sillars and Agnes Mccully
• Hugh Sellars born 03 May 1835 at Govan, Lanarkshire, Scotland with parents Hugh Sellars and Agnes Mcculloch
• Jane Cowan Sellars born 28 Dec 1836 at Govan, Lanarkshire, Scotland with parents Hugh Sellars and Agnes Mcculloch
• Margaret Sellars born 21 Feb 1844 at Glasgow, Lanarkshire, Scotland with parents Hugh Sellars and Agnes Mcculloch

I see the family in the 1841 Scotland Census where Hugh Sillars 37 born about 1804, an S Carp J [which I think is short for a Ship Carpenter Journeyman], is living at Slip Dock, Barony, Lanarkshire, Scotland with his wife Agnes Sillars 30 and children Robert Sillars 9, Agnes Sillars 8 and Hugh Sillars 6.

The 1844 christening is the last time I see the names of Hugh Sellars and Agnes Macculloch linked in a record and I suspect that they may have divorced.

To support my theory that their marriage foundered I have three pieces of evidence:

• Agnes Macculloch marries Robert Thomson on 16 Nov 1846 at Dundonald, Ayrshire, Scotland
• The 1855 New York State Census finds Hugh Sellars 52, Ship Carpenter, born in Scotland, living at Albany City, Ward 6, Albany, New York, USA with his wife Mary Sellars 50 (born in England) and four others Harriet Martin 32 Moody M Hale 54 Elizabeth A Hale 18 and Elick Crawford 26
• The 1865 New York State Census finds Hugh Sellars 60, Ship Carpenter, born in Scotland, living at Albany City, Ward 6, Albany, New York, USA with his wife Mary Sellars 60 (born in England) and two others: William H Hall, aged 8, recorded as Hugh's son (?) and Caroline R Foster, aged 7, a Boarder. Both Hugh and Mary are recorded as having been married twice.

All was not settled on the work front for Hugh either because on 5 Apr 1848 he applied for a form of bankruptcy called Cessio Bonorum as both a partner of H. Sellars and Co, and as an individual. This suggests why emigration to the U.S.A. may have appealed to him.

If I have surmised correctly above, where would I look for a record of the divorce? I am also interested to know whether any alternative theory of "double bigamy" would have any credibility in that time and place?

Answer 1

A brief overview can be found in the FamilySearch Wiki Article: Scotland Court Records under the section Divorces. For the period of this question, in the civil courts, divorces are granted by the Court of Sessions (since/from 1830).

Surviving Scottish Court records are held at the National Archives of Scotland. It used to be difficult to find records because (like probate records and divorce records in the USA) not many of the records were indexed. Mark D. Herber, the author of Ancestral Trails (2004), my go-to reference on British Genealogy, has a brief summary of the Scottish Civil Courts on pages 699-700, and refers his readers to Cecil Sinclair's Tracing Scottish Local History: A Guide to Local History Research in the Scottish Record Office for a detailed explanation and descriptions of the courts and how to search the records.

However, the indexing situation seems to be much improved in the last ten years. The National Archives of Scotland's Research Guide to Divorce and separation records offers a history and review of the records held, and refers the readers to Tristam Clarke (ed) Tracing Your Scottish Ancestors for detailed instructions on how to search. Of their holdings, the NAS's guide says:

1830/5-1984 From 1935 to 1984, individual divorce cases are listed in our electronic catalogue and can be found by searching for either party involved in the action. From 1830/5 to 1934, the printed general minute books of the court (CS17/1) lead to card indexes and bound indexes to the cases. Case papers can be either 'extracted' or 'unextracted' processes. For extracted processes the judge's verdict can be found in the Register of Acts and Decreets (CS45), using the last date for a case in the minute book. Note that if children are involved in a divorce, the case papers are normally transferred to the NAS only when the youngest has attained the age of 16, so you may have to search through the indexes on this basis. Sometimes the letter 'R' is used alongside entries to show that case papers were 'Retained', while in others the eventual year of transmission is shown in round brackets. Many of the cases involving children are extracted processes.

That's all well and good if you can go to the NAS, but what about those of us who are searching online from afar?

• The FamilySearch Wiki says that "The Family History Library does not have divorce records for Scotland."
• The Records Availability Page on Scotlands People does not list divorces in their table.
• Searching the Card Catalogue at Ancestry.co.uk, keyword "Divorce" finds divorce records for England and Wales, but not Scotland. A search for "Court of Sessions" also yielded no results.
• Find My Past's Search A-Z of Record Sets yields two books and a set of census records for Scotland; no court records.

All of the evidence about divorces I have found so far have been through newspaper articles. In the USA newspapers published court calendars which listed the names of divorcing couples that were scheduled to appear before the courts. For the USA, especially New York State, a superb free source is Old Fulton NY Post Cards / Fulton History.com -- for Scotland, perhaps the British Newspaper Archive? (not free, alas) Coverage is never complete so it's always a 'lucky dip' but having the dates can lead to other records. It's important to remember that divorce is a multi-step process with a petition for the divorce, followed by the divorce being granted (or not) sometime later (typically a year later in the USA).

For the secondary question -- the grounds for divorce and other matters -- Herber says:

Marriages could be annulled by the church courts and they could also grant separation a mensa et thoro, on similar grounds as the English Courts.... Divorce was available in cases of adultery and desertion (of four years) and from 1938 for cruelty.

The FamilySearch Wiki has an article Divorce in England and Wales but there is no corresponding article for Scotland.

I was wondering if your couple had gotten a "poor man's divorce" by separating, especially since the period of separation was four years, but I don't know if that will fit with your timeline. Of course there's no guarantee that the last child born is actually the child of the father reported in the christening record, nor are those records evidence for a couple residing together.

Also of interest for the wider social history:

• Meagan L Butler, ‘Adultery in the Working Class: Divorce in Victorian Scotland, 1830-1880’; abstract and link for request for a PDF available at academia.edu.
• Meagan L Butler, ‘Married Women and the Law: a comparative study of marriage and divorce law in Nineteenth-Century United States and Scotland’
• Meagan L Butler's profile page at academia.edu for a list of her other research

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An update about the access to divorce records held by NRS, published by Chris Paton on The British GENES blog (Tuesday, 3 November 2015): Access to Scottish divorce records to be restricted

Chris posted information from National Records of Scotland's Head of Public Services, Anne Slater, explaining why NRS has removed records from the site and explaining the new processes to request records.

Answer 2

Details about Divorce in Scotland are to be found on the National Archives of Scotland (National Records of Scotland) web-site. However, it appears that the indexes are not on-line - "From 1830/5 to 1934, the printed general minute books of the court (CS17/1) lead to card indexes and bound indexes to the cases." This is then confirmed by the "Tracing" book mentioned below for the post-1830 era - you start with printed books.

The book "Tracing Your Scottish Ancestors - The Official Guide" suggests strongly to me that, as often the case, Scots Law was ahead of that in England & Wales, as in referring to the pre-1830 divorce situation, it says "many lesser folk such as tradesmen can be found raising actions. A small proportion even had their case paid for by the parish poors' fund." (My italics).

As a result I shall modify my mental reaction to the original question. If the case were in England, I would have said it was 99% certain to be bigamy. I still have no feeling for the numbers of divorces in Scotland but it looks like divorce is a distinct possibility. Even if finding the details is not that practical.