Adult Relations - Marriage (Scotland)

What is a Marriage?
1. "Marriage is understood by Christendom [as] the voluntary union for life of one man and one woman to the exclusion of all others" - Hyde v Hyde 1866
2. "Marriage is in itself an institution and creates a status which the State recognises as affecting the rights and capacities not only of the parties to the marriage but of many others" - Lang v Lang per LJC Scott Dickson
3. "Married couples are 'life-long sharers of the privileges and burdens attached by law to the married state. Marriage is neither more nor less than that. No conditions can be attached to it" - Lang v Lang per LP Clyde
Importance of Marriage
1. Laws giving special status to one party (historically the husband) generally been repealed in terms of property and legitimacy
  1. Some of these laws do remain in certain areas (e.g. immigration and tax) though their significance has been much reduced
    1. These laws are now often made available to couples "living together as husband and wife" (e.g. domestic abuse protection)
2. Marriage remains the paradigm against which all other relationships are tested (social importance)
Right to Marry - Art. 12 ECHR
1. ""Men and woman of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right"
2. Derived from WWII in relation to Nazi laws dictating that Jews were non-German, and that German citizens could not marry non-Germans
3. Can give grounds to those of a diminished mental capacity who believe they have the capacity to marry
4. Courts have stated that this does not give same-sex couples the right to marry, however this will become harder to enforce given the nature of modern national law
Engagements
1. No promise of marriage or agreement to marry shall have effect to create any rights or obligations
2. No action for breach of any such promise or agreement may be brought in any court in Scotland
3. s.1(1) Law Reform (Husband and Wife) (Scotland) Act 1984
4. Ordinary rules of property apply
  1. Gifts
    1. Unconditional - no return
    2. Conditional - unjust enrichment
      1. Grieve v Morrison 1993 SLT 852
        Purchase of property by engaged couple, title taken in joint names
        Partly paid by female partners proceeds from the sale of a previous property
        Marriage did not take place, woman failed to recover proceeds
        No establishment that transfer of proceeds for purchase was made on condition that the marriage would take place
        Court order of division and sale under which both parties obtained half of the proceeds from the sale of the new house
Preliminaries of Marriage
1. 1. Notice - s.3
  1. Fee of £30 each
  2. Necessary documents
    1. Birth Certificates
    2. Divorce or dissolution papers (if applicable)
    3. Certificate of capacity (if not domiciled in Scotland)
  3. Marriage notice book and list of proposed marriages - s.4
2. 2. Objections - s.5
  1. Any person in writing claiming a legal impediment as defined in s.5(4)(a)-(f)
3. 3. Waiting period- s.6(4)(a) & s.19(1)
  1. list must be displayed for 28 days before marriage can go ahead
    1. UNLESS s.6(4)(a)(i)&(ii) or s.19(1)(a)&(b) apply
4. 4. Marriage Schedule produced
Civil Marriage
1. Place - s.18 (note s.18A repealed)
  1. Registrar's office
    1. or approved place in registrar district
  2. Authorised Registrar's office
    1. approved place in authorised registrar district
2. Celebrant - s.8(1)(b) & s.17
  1. s.17 - auhtorisation of registrar's by Registrar General
  2. s.8(1)(b) - district registrar's and assistant registrar's appointed under s.17
3. Form of ceremony - s.19(2)
  1. conditions for solemnisation
Religious Marriage
1. Celebrants - s.8
  1. Minister of CoS
  2. other celebrant of religious or belief body prescribed by SoS
  3. Registered under s.9 or temporarily authorised by s.12
  4. Same-sex couples - s.8(1B), identical however Scottish ministers may not solemnise
2. Form of Ceremony
  1. Preliminaries - s.13
    1. must have schedule
      1. both parties present
        two persons professing to be 16 years or older
  2. Form of Ceremony - s.14
    1. religion recognised by State?
      1. must therefore carry out a ceremony which does not conflict with the rules of that religion
  3. Registration - s.15

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Adult Relations - Marriage (Scotland)

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