Adult Relations - Nullity of Marriage (Scotland)

Void Marriage
1. Prohibitions
  1. Nonage
    1. i.e. the minimum age for marriage
    2. s.1(1) & (2) Marriage (Scotland) Act 1977
      1. no person domiciled in Scotland may marry before the age of 16
      2. A marriage solemnised in Scotland between two persons either of whom is under the age of 16 shall be void
  2. Forbidden Degrees of Relationship
    1. s.2 Marriage (Scotland) Act 1977, void if (i) solemnised in Scotland, or (ii) if either party is domiciled in Scotland
    2. Consanguinity
      1. i.e. related by blood, 'half-blood' relations included, meaning when two parties share one parent but not the other
    3. Adoption
      1. only applies to the adoptive parent(s) and child(ren), meaning two persons who share adoptive parents can marry (provided no other consanguinity)
    4. Affinity
      1. being relationships by way of marriage and civil partnership, subject to exceptions
        e.g. s.2(1A) providing that where the partners have not lived as a family (i.e. the younger did not live in a family as a child of the elder when the younger was under 18) and both are now over 21, they may marry and the marriage will not be void
        Relationships specified in sch.1 para.2 Marriage (Scotland) Act 1977
  3. Prior Subsisting Marriage or Civil Partnership
    1. s.5(4)(b) Marriage (Scotland) Act 1977
      1. there is a legal impediment to marriage if one of the parties is, or both are, already married (or in a civil partnership)
    2. Burke v Burke 1983 SLT 331
      1. Husband who lived with wife(1), married wife(2) having told her that he was divorced from wife(1)
        Wife(2) discovered that no divorce had taken place and sought both a declarator of nullity and aliment for her child who had been conceived during the marriage to wife(2)
        wife(2) did not have to prove validity of marriage to wife(1), onus lay on H to prove marriage to wife(1) was void, which he was unable to do
      2. Doctrine of 'omnnia praesumuntur rite et solemniter acta esse' applied, meaning 'all things presumed to have been solemnly done with the usual ceremony'
        Declarator, aliment awarded and £2.5k in damages awarded for delict
2. Defects in Consent
  1. Intoxication
    1. s.20A(3)
    2. Johnston v Brown (1823) 25 495
      1. Effects of drugs or alcohol may be sufficient to lack capacity provided that the abuse is extreme
      2. Mrs Brown obtained declarator for nullity upon complaining that at the time of ceremony and for three days thereafter she was intoxocated
        Therefore lacked capacity to consent at the time of the ceremony
  2. Error
    1. s.20A(1)(2) & (5)
    2. i.e. by nature of ceremony or identity of the other party
      1. Ceremony; A believes ceremony with B to be merely a betrothal
      2. Identity; involving cases of impersonation
    3. McLeod v Adams 1920 1 SLT 229
      1. Defender deserted army, using false name to avoid detection
      2. told a widow that he was a sergeant in the Black Watch
      3. They married, and the defender deserted wife taking her savings with him
      4. No operative error in the circumstances, considering the woman learly wanted to marry the an in front of her and there was no error as to the identities of the parties
    4. Lang v Lang 1921 SC 44
      1. Fraudulent misrepresentation
      2. H married W under the impression that she was pregnant with his child
        she was in fact pregnant with another man's child
      3. Irrelevant that an error as to qualities was induced by fraudulent misrepresentation or concealment of facts by spouse concerned, no grounds for nullity
  3. Duress
    1. i.e. force and fear
      1. subjective common law test
        was the particular person overcome by force and fear rather than the reasonable person
        Duress may emanate from a third party (e.g. parents, pressure must go beyond reasonable parental influence)
        Forced Marriage (Protection and Jurisdiction) (Scotland) Act 2011 exists to enable a court to make forced marriage prevention orders in an attempt to prevent situations of duress
    2. Sohrab v Khan 2002 SCLR 663
      1. absence of free consent through threats of mothers suicide and other parental pressure
      2. marriage declared void on grounds of improper solemnisation and duress
    3. Mahmood v Mahmood 1993 SLT 889
      1. test established were threats sufficient to overcome the will of the pursuer?
      2. threats in present case could be considered to satisfy test for a woman of such age and cultural background
      3. Consent need not be enthusiastic, reluctant consent is consent provided that it is genuine
    4. Mahmud v Mahmud 1994 SLT 599
      1. "the consent had been vitiated by pressure amounting to force with the result that the pursuers own will was truly overborn"
      2. Judgement notes that one cannot assume that a male will be stronger than a female less swayed by conscience
  4. Capacity to Consent
    1. s.20A(1) where ss.(3) applies
      1. Party incapable of
        (a) understanding the nature of marriage
        (b) consenting to the marriage
    2. Lang v Lang 1950 SLT (Notes) 32
      1. Heavy burden lies on any person denying the validity of a marriage to establish that one or both of the parties were incapable of understanding the nature of marriage as a result of mental impairment or mental illness at the time of the ceremony
        If the burden can be discharged the marriage shall be void
  5. Sham Marriage
    1. "If a party to a marriage purported to give consent to the marriage other than by reason only of duress or error, the marriage shall not be void by reason only of that party's having tacitly witheld consent to the marriage at the time where it was solemnised"
    2. At common law recognised that tacitly withholding consent to marriage meant the marriage was null
    3. The Sham Marriage Doctrine - i.e. saying 'yes' when meaning 'no'
      1. Subject to s.20A(4) doctrine may still be applicable where consent has been tacitly withheld and there is a positive intention not to be married
    4. Orlandi v Castelli 1961 SC 113
      1. British wife Italian husband married to obtain renewed visa for husband
      2. No Copula Carnaris (consummation) nor marital cohabitation
      3. No mutual marriage consensus/civil ceremony and so did not constitute a marriage un Catholicism
    5. Akram v Akram 1979 SLT 515
      1. Lack of real consent on the basis that muslim marriage did not follow registration
    6. Hakeem v Hussain 2008 SLT 515
      1. meaning of consent
      2. couple married in registry office signing schedule which was then registered, could not escape marriage on argument that religious ceremony had not taken place
    7. H v H 2005 SLT 1025
      1. Hakeem v Hussain overturned by extra division
      2. Marriage held void for lack of consent as religious marriage meant consent before God, which had not occurred. Fraudulent and irreligious scheme
Voidable Marriage
1. Incurable Impotency
  1. inability to achieve full penetration of the vagina by the penis on at least one occasion
    1. Inability not refusal - important
      1. if parties are capable but choose not to then the marriage is not voidable
  2. N.B. s.5 CP Act 2014 same-sex couples excluded from impotence for purposes of voidable marriage
  3. Personal Bar
    1. a spouse may be personally barred from obtaining a declarator of nullity on the ground of incurable impotence where, having the knowledge of both the impotence and the availability of a legal remedy, the pursuer has approbated the marriage or taken advantage of the benefits of a matrimonial relationship that it would be unfair or inequitable to permit the pursuer to treat the marriage as null
    2. Knowledge
      1. Knowledge of impotency when entering into a marriage contract will result in personal bar. In doing so the pursuer adopts or expressly agrees with the defenders failure to perform a condition whose failure would otherwise have entitled the pursuer to have the marriage resolved.
        This situation works conversely, i.e. an impotent spouse who enters a marriage with a potent spouse with knowledge of their own impotency is personally barred from seeking a declarator on grounds of his or her own impotency
      2. L v L1931 SC 477
        H impotent through paralysis, parties had cohabited for two months prior to marriage and W was aware of H's condition
        Entered marriage to obtain support for herself and for an illegitimate child which she had with another man
        Parties lived together for over four years after marriage, held barred having had knowledge of H's impotency and that it would be inequitable for a declarator to be founded on such a basis
    3. Children
      1. Personal bar will arise where the pursuer has homologated the marriage by agreeing to adopt or have a child by artificial insemination
      2. For case, refer back to AB v CB
    4. Delay
      1. delay itself is not enough, but if it would result in serious prejudice to the defender, it could be
      2. AB v CB 1961 SC 347
        Husband claimed declaration of nullity for wife's impotency having already known of her impotency
        Had co-operated in the artificial insemination of his own semen as well
        Held H had approbated and adopted marriage as valid
      3. Allardyce v Allardyce 1954 SC 419
        Pretended marriage between P+D null and void by reason of D's impotency and inability to consummate marriage by carnal copulation
        Declarator granted, both parties awarded compensation

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Adult Relations - Nullity of Marriage (Scotland)

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