constitution of marriage

Question 1

which act amended the Marriage Scotland Act 1997

Answer 1

Marriage and CP act 2014

Question 2

definition of marriage

Answer 2

Voluntary union , still true today, cannot have any form of marriage or CP under duress, neither party can be coerced into this

Question 3

what does section 4(1) of the marriage and CP act 2014 outline

Answer 3

provides that references to “marriage” or “married couples in enactments (ie legislation) should be read as referring to oppsite an same sex couples respectiviely

Question 4

what is the nature of marriage

Answer 4

once you enter into the contract of marriage, it gives you a statue , you have certain rights and responsibilities ect that you do not have with other contracts

Question 5

which case shows that the courts apply quite differnt rules to the contract of marriage

Answer 5

Lang v Lang (1921) SC 44

Question 6

what is a a regular marriage

Answer 6

also known as “formal” marriage - regulated by the marriage (S) act 1997 (as amended by marriage and CP (S) act 2014

Question 7

what are the two forms of regualr marriage in scotland

Answer 7

1. Religious or belief marriage

2. Civil Marriage

Question 8

where are the preliminaries to the ceremony stated

Answer 8

section 3-7 of the 1997 the preliminary procedures to marriage, are the SAME for civil and religious/belief ceremonies and for opposite sex/same sex marriage

Question 9

Requirements of notice s.3

Answer 9

Both parties are required to give notice of intention to marry to the district in which they want to get married.
Certain documents must accompany the marriage notice
- birth certificates;
- decree of divorce or death certificate (if applicable);
- certificate of capacity if a party is domiciled abroad (not always necessary))
28 days is usually the MINIMUM time in which notice must be given.

Question 10

Marriage notice book s.4

Answer 10

Registrar enters the details (parties names, addresses, martial status, DoB and the proposed date of marriage of the parties) in a “marriage notice book”
the registrar must then display the names of the parties (no addresses) and the proposed date of the ceremeony in a “conspicuous” place at the registration office until after the wedding has passed

Question 11

what the objections to marriage s.5

Answer 11

Objections relating to minor inaccuracies, therefore

District registrar will notify the parties and, subject to the approval of the Registrar General, make the change

Objections relating to an impediment to marriage

therefore the celebrant and Registrar General will be notified and the Registrar General will investigate

Question 12

legal impediment of marriage , what are the grounds of objection section 5(4)

Answer 12

grounds of objection - section 5(4)
one of the parties is already married or in a CP
one of the parties will be under 16 at the time of marriage
one or both of the parties are incapable of understanifn the nature of marriage ceremony or of consenting to marriage
if one or both of the parties is not domiciled in scotland and their marriage would be void according to the law of their country

Question 13

what is the marriage schedule s.6

Answer 13

issued by the district registrar once he/she is satisfied that the parties have the capacity to marry and the marriage notice period (28 days) has passes
This is an important document as serves as initial record of marriage
Acts as lisence in religious and belief ceremonies

Question 14

who can solemnize a CIVIL marriage

Answer 14

for all civil ceremonies the rules are the same for same sex couples and opposite sex couples

Question 15

which section authorises district registrars and assistant registars to solemnize marriages

Answer 15

section 8 (1) (b)

Question 16

what does s8 (1B) (b) explicitly authorize,

Answer 16

it explicity authorises district registrars and assistant registrars to solemnize SAME SEX marriages

Question 17

who can solemnize a RELIGIOUS or BELIEF marriage (opposite sex couples )

Answer 17

a minister or deacon of the church of scotland, automatically authorized
a minister, clergyman, pastor, preist or other marriage celebrant of a religious or belief body prescirbed in regualtions made by the scottish ministers, body must request to be prescribed

Question 18

what is the procedure at religious or belief ceremony, section 13 (1) the marriage will not proceed unless

Answer 18

the parties must produce a marriage schedule
both parties are present
there are two witnesses professing to be over the age of 16

Question 19

what does section 6(5) of the 1997 act state

Answer 19

the date and the place of the marriage must be specified in the marriage schedule

Question 20

procedure at a civil ceremony

Answer 20

s.13(1) the marriage will not proceed unless…
a marriage schedule is produced (for civil ceremonies this will have been RETAINED by the district registar
both parties are present
there are two witnesses proffessing to be over 16 years of age

Question 21

where can a civil ceremony take place? s18

Answer 21

much more flexibility following the 2014 act
marriages can take place:
In a registration office
At an ‘appropriate place’
at an “appropriate place in scottish waters’

Question 22

where can civil marriages not take place

Answer 22

in a religious premises , s18(1A)

Question 23

what is the effect of registration

Answer 23

s23A marriage (s) act 1997, subject to section 1 and 2 of the act, where the particulars of any marriage at the cermeony in respect of which both parites wer epresent are entered in a register of marriages by .. an apporoprate registrar, the validity of that marriage shall not be questioned, in any legal proceedings whatsoever, on the ground of failure to comply with a requirement or restriction imposed by…this Act’

Question 24

what is the scope of s23A

Answer 24

Saleh v Saleh (1987)
there was a ceremony but no marriage schedule. No schedule = no registration
lack of registration crucial - s23A could not “save the marriage” of there was no registration
Lord Cylde gave examples of the types of situations in which 23 could ‘save’ a marriage

Question 25

Sohrab v Khan 2002

Answer 25

duress case in which no schedule had been produced at the ceremony
held: 23A cannot save a marriage where a marriage schedule was not in existence at the time of the ceremony
declarator of nulity granted