Irregular Marriage

Question 1

Marriage by declaration

Answer 1

They merely declared one another as husband and wife, no need for sex or cohabitation. Must be free to marry, and consent is essential. Difficult to prove though abloishes by Marriage (Scotland) Act 1939

Question 2

Marriage by promise

Answer 2

Promise to marry at future date and then sexual intercourse, no witnesses needed abolished by Marriage (Scotland) Act 1939

Question 3

Marriage by Cohabit and Repute

Answer 3

Abolished by Family Law 2006. Marriage by tacit agreement of parties to marry presumed from a period of cohabitation with habit and Repute that they were husband and wife (Present themselves as husband and wife)

Question 4

Nicol v Bell

Answer 4

Cohabitation and the habit and repute doesn’t itself constitute marriage, but if tacitly interchanged consent then it would consistute. To rebut put prove no consent at all but need more as cohabitation and repute is sufficiently established to be a tacit expression of matrimonial consent

Question 5

Requirements 1

Answer 5

There must be cohabitation as husband and wife, shared living space. Nicol v Bell

Question 6

Requirement 2

Answer 6

Must be in Scotland

Dysart Peerage Case - Has to be in the realm of Scotland

Question 7

Requirement 3

Answer 7

Must endure a reasonably long time
Kamperman v McIver - 6 1/2 months could be fine depending on quality
Shaw v Henderson - 10 months and 23 enough
Wallace v Fife Coal Co - 10 not enough

Question 8

Requirement 4

Answer 8

Must be free to marry
Low v Gorman - Whole relationship adulterous even after impediment removed it broke down
S v S - Nothing changed once the impediment had been removed

Question 9

Requirement 4

Answer 9

Held as Husband and Wife
Dewar v Dewar - assumed married, some people knew they couldn’t be in it
Low v Gorman - Must be general, unvarying, undivided

Question 10

Rebutting presumption of tacit consent

Answer 10

If there was proper intention to get married at some point and held it off for other things.

If they were not ready for marriage or deferred it for practical reasons presumption is likely to be rebutted - Mackenzie v Scott

However if they regarded themselves as married but didn’t believe formal ceremony needed then unlikely to be rebutted Dewar v Dewar

Question 11

Where does it need to be raised?

Answer 11

S21 Marriage of Scotland

Question 12

Is it actually abolished?

Answer 12

If cohabitation began before 2006 then it is still cohabit and repute.
If began before and ends after could be

It can still have effect s3(4) Family Law act