Constitution of Marriage

Question 1

Basic definition

Answer 1

Hyde v Hyde - ‘Voluntary union for life of one man and one woman to the exclusion of all others’

Question 2

Nature of Marriage

Answer 2

It is a contract between two individuals. Comes with rights and responsibilities, and gives you a status.

Question 3

Lang v Lang

Answer 3

Sailor married woman on thought pregnant with his child, she wasn’t. Tried to get out of marriage with misrepresentation and essential error. Court have strict view on marriage though.

Question 4

Regular Marriage

Answer 4

There can be both religious/belief or civil marriages. Contain a preliminary procedure.

Question 5

Requirement of Notice

Answer 5

Both parties must given intention to marry in district they want to. (Birth certificate, decree of divorce/death, capacity certificate if applicable)
28 days prior to marriage, which allows for due diligence so marriage is valid.

Question 6

Marriage Notice Book

Answer 6

Registrar enters details into marriage notice book. Must be displayed in conspicuous place to allow for objections.

Question 7

Objections to Marriage

Answer 7

Minor administration errors, parties are notified and then subject to approval of register general change made.
Major errors which may impede the marriage, they will investigate and do everything within power to stop the marriage.
Grounds for objection S5(4)
Forbidden degrees
Already married
Under 16
Incapable of understanding
Not domicile in Scotland and void in relation to their own law except in same sex marriage

Question 8

Marriage Schedule

Answer 8

Issued once satisfied they have capacity to marry, and marriage notice has passed. Marriage must happened within 3 months of the document being issued. Important document

Question 9

Who can solemnise/celebrate a marriage?

Answer 9

Depends on what type whether civil or religious/belief

Question 10

Solemnise a Civil Marriage

Answer 10

Same for both/opposite sex couples. District registrar/assistant in accordance with S17

Question 11

Solemnise a religious/belief marriage - opposite sex

Answer 11

S8 contains list of who can.

ii) Body must request to be prescribed. Make sure not doing it for profit, recognised and organised group.
iii) Body not covered by others
iv) Visiting celebrant

Question 12

Solemnise a religious/belief marriage - same sex

Answer 12

Prior to change in legislation a lot of pushback from religious organisations. It is an opt in system unlike opposite sex marriage.
(1D) Don’t have to even if body has opted in

Question 13

Procedure at religious/belief marriages

Answer 13

Parties must produce marriage schedule, be present and two witnesses claiming to be over 16.
Register needs to be returned in 3 days
Date and place need to be specified in marriage schedule S6

Question 14

Procedure at civil ceremony

Answer 14

Same procedure.
But 2014 office, appropriate place/Scottish waters
Can’t be on religious grounds at all.

Question 15

Validity of marriage

Answer 15

Validity not questioned on failure to comply with a requirement or restriction imposed by act. Can’t be invalid due to small error.

Question 16

Cases for Validity

Answer 16

Saleh v Saleh - No marriage schedule, no registration. Doesn’t cover this but does cover:
Schedule issued prior to time limit
Wasn’t an approved celebrant
No marriage schedule at wedding, but then produced and signed soon after.
Shoran v Khan - No marriage schedule in existence at the time so simply didn’t exist.