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Adult Relations - Marriage (Scotland)

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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    • Laws giving special status to one party (historically the husband) generally been repealed in terms of property and legitimacy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

Informações

Descrição
All references made to Marriage (Scotland) Act 1977 unless otherwise stated
Criado por
Usuário eliminado · abr 2017
Atualizado
7 abr 2017
Visualizações
35
Histórico
  • Criado por Ruaraidh Simpson · 6 abr 2017
  • Copiado por Ruaraidh Simpson · 7 abr 2017
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