Adult Relations - Marriage (Scotland)

Adult Relations - Marriage (Scotland)

1. What is a Marriage?

   • "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
   • "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
   • "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

2. Importance of Marriage

   • Laws giving special status to one party (historically the husband) generally been repealed in terms of property and legitimacy
     • Some of these laws do remain in certain areas (e.g. immigration and tax) though their significance has been much reduced
       • These laws are now often made available to couples "living together as husband and wife" (e.g. domestic abuse protection)
   • Marriage remains the paradigm against which all other relationships are tested (social importance)

3. Right to Marry - Art. 12 ECHR

   • ""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"
   • Derived from WWII in relation to Nazi laws dictating that Jews were non-German, and that German citizens could not marry non-Germans
   • Can give grounds to those of a diminished mental capacity who believe they have the capacity to marry
   • 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

4. Engagements

   • No promise of marriage or agreement to marry shall have effect to create any rights or obligations
   • No action for breach of any such promise or agreement may be brought in any court in Scotland
   • s.1(1) Law Reform (Husband and Wife) (Scotland) Act 1984
   • Ordinary rules of property apply
     • Gifts
       • Unconditional - no return
       • Conditional - unjust enrichment
         • 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

5. Preliminaries of Marriage

   • 1. Notice - s.3
     • Fee of £30 each
     • Necessary documents
       • Birth Certificates
       • Divorce or dissolution papers (if applicable)
       • Certificate of capacity (if not domiciled in Scotland)
     • Marriage notice book and list of proposed marriages - s.4
   • 2. Objections - s.5
     • Any person in writing claiming a legal impediment as defined in s.5(4)(a)-(f)
   • 3. Waiting period- s.6(4)(a) & s.19(1)
     • list must be displayed for 28 days before marriage can go ahead
       • UNLESS s.6(4)(a)(i)&(ii) or s.19(1)(a)&(b) apply
   • 4. Marriage Schedule produced

6. Civil Marriage

   • Place - s.18 (note s.18A repealed)
     • Registrar's office
       • or approved place in registrar district
     • Authorised Registrar's office
       • approved place in authorised registrar district
   • Celebrant - s.8(1)(b) & s.17
     • s.17 - auhtorisation of registrar's by Registrar General
     • s.8(1)(b) - district registrar's and assistant registrar's appointed under s.17
   • Form of ceremony - s.19(2)
     • conditions for solemnisation

7. Religious Marriage

   • Celebrants - s.8
     • Minister of CoS
     • other celebrant of religious or belief body prescribed by SoS
     • Registered under s.9 or temporarily authorised by s.12
     • Same-sex couples - s.8(1B), identical however Scottish ministers may not solemnise
   • Form of Ceremony
     • Preliminaries - s.13
       • must have schedule
         • both parties present
           • two persons professing to be 16 years or older
     • Form of Ceremony - s.14
       • religion recognised by State?
         • must therefore carry out a ceremony which does not conflict with the rules of that religion
     • Registration - s.15