Burns’ bairns and bedroom tales, examined from a 21st century family law perspective

On 25th January, many will be celebrating the life of Robert (or “Rabbie”) Burns, Scotland’s National Bard. Burns was an extraordinary poet of considerable literary talent. His legacy and works, including Tam o’ Shanter and Auld Lang Syne, are renowned across the world and are an intrinsically linked part of Scottish culture. But what of the character of the man behind some of the best-known poems ever written?

“A man’s a man for aw that”

Many have written, through a modern lens, of the perceived flaws in Burns’ character and his life choices. He is often cited as a prime example of human weakness. Burns did not shy away from admitting the aspects of his character which may be frowned upon by others, with the directness, honesty and sincerity he displayed in many of his works.

Burns’ many children

It is documented that Burns fathered (at least) twelve children. His first child, Elizabeth, was born to one of his family’s servants, Elizabeth Paton. He had nine children to the love of his life, Jean Armour, whom he eventually married. Only three of those children survived past infancy. Before marrying Jean, Burns fathered a child to another servant, May (or Peggy) Cameron. Jenny Clow, another servant girl, gave birth to a son (Robert Burns Clow) and local barmaid Ann Park gave birth to a daughter (Elizabeth) after Burns married Jean.

If Burns had lived in twenty first century Scotland, he would have a legal obligation to aliment (i.e. provide financial support) for each of his children until they reached the age of twenty five if they remained in full-time education in accordance with Section 1 of the Family Law Scotland Act 1985. He would require to pay child maintenance to each mother and for each child until that child reached the age of 20 (provided that child remained in full-time non-advanced education). Burns would also have responsibilities and rights in respect of each child in terms of Sections 1 and 2 of the Children (Scotland) Act 1995, including safeguarding their health, development and welfare, providing them with direction and guidance and maintaining personal relations with them.

Burns’ marriage to Jean – could divorce be on the cards if he lived in 21st century Scotland?

So, what of Burns’ wife, Jean Armour? Jean stood by her husband until his passing on 21st July 1796, aged thirty-seven. Had Jean lived in twenty first century Scotland and not been so loyal, perhaps seeing her marriage in a different light, she would have had a multitude of grounds upon which she could prove irretrievable breakdown of her marriage to Burns.

If Jean separated from Burns and they lived apart for more than two years (or a year if Burns consented), then decree of divorce could be obtained.

Although a less common basis for proving irretrievable breakdown of marriage in modern Scotland, Jean would have ample evidence to prove adultery. By all accounts, Burns pursued passion with women as energetically as he did his poetry, which inspired some of his best work. Jean would only need to lodge the written confessions of her husband to his philandering with other women and fathering children to some after her marriage to place a court in no doubt of the veracity of her claims.

Might Jean also be able to establish irretrievable breakdown of marriage based on Burns’ unreasonable behaviour? Burns himself admitted to married life being difficult for him. In his words “But how capricious are mankind, now loathing, now desirous! We married men, how oft we find the best of things will tire us! ” It is well known that Burns liked to drink a lot. As he said in one of his poems “the cock may craw the day may daw and ay we’ll taste the barley bree.” Burns was also a self-confessed sex addict and, by the sounds of it, could be quite persistent. Although there is no direct evidence that Burns was abusive to Jean, his works reflect a questionable attitude towards women by modern standards. In the song “My Wife’s a Wanton Wee Thing”, the husband of the poem solves the issue of his wife’s inebriation and “loose behaviour” with a threat of violence: “she play’d the loon or she was married, she’ll do it again or she die.” The poem ends with the husband losing his temper and admitting “I took a rung and I claw’d her.” Jean might well be able to construct a case to prove that she ought not to be expected to live with Burns in the circumstances, had she desired to divorce him.

Concluding remarks

While it is evident that Burns was not infallible, and his character divides modern experts, it is true that his legacy will live on for many years to come. What is certain though is that Burns would have the potential to keep family lawyers very busy if he lived in twenty first century Scotland!

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