Marriage Flashcards
Art 12 of the European Convention on Human Rights
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’
s. 26 Interpretation., Marriage (Scotland) Act 1977 c. 15
“marriage” means marriage between persons of different sexes and marriage between persons of the same sex;
s. 26 Interpretation., Marriage (Scotland) Act 1977 c. 15
s. 1 Law Reform (Husband and Wife) (Scotland) Act 1984 c. 15
(1) No promise of marriage or agreement between two persons to marry one another shall have effect under the law of Scotland to create any rights or obligations; and no action for breach of any such promise or agreement may be brought in any court in Scotland, whatever the law applicable to the promise or agreement.
(2) This section shall have effect in relation to any promise made or agreement entered into before it comes into force, but shall not affect any action commenced before it comes into force.
- It prohibits contractual and delictual remedies (Scots)
- English legislation only prevents agreements to marry operating as contracts
Any financial disputes resolve before marriage (couple engaged broke up but they bought a house)
general rules of law of property
Grieve v Morrison 1993 SLT 852
Shilliday v Smith 1998 SC 725
woman give his fiance money for works in the house (they intended to live there after marriage) they broke up she get the recompense (as she clearly did not intend the money to be a gift); unjustified enrichment
“matrimonial home”
means [subject to subsection (2), ]2 any house, caravan, houseboat or other structure which has been provided or has been made available by one or both of the spouses as, or has become, a family residence and includes any garden or other ground or building […]3 usually occupied with, or otherwise required for the amenity or convenience of, the house, caravan, houseboat or other structure [ but does not include a residence provided or made available by [a person for one]5 spouse to reside in, whether with any child of the family or not, separately from the other spouse ]4 s. 22 Matrimonial Homes (Family Protection) (Scotland) Act 1981
Subject to [subsections (5) and (5A)]11 below, in this section and in section 11 of this Act “the matrimonial property” means all the property belonging to the parties or either of them at the relevant date which was acquired by them or him (otherwise than by way of gift or succession from a third party)—
(a) before the marriage for use by them as a family home or as furniture or plenishings for such home; or
(b) during the marriage but before the relevant date.
s. 10 Sharing of value of matrimonial property or partnership property., Family Law (Scotland) Act 1985 c. 37
s.10(4) Fa
(1) In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property [or partnership property ]1 shall be taken to be shared fairly between [persons]2 when it is shared equally or in such other proportions as are justified by special circumstances.
(2) [Subject to subsection (3A) below, the]3 net value of the […]4 property shall be the value of the property at the relevant date after deduction of any debts incurred by [one or both of the parties to the marriage or as the case may be of the partners]5 —
(a) before the marriage so far as they relate to the matrimonial property [ or before the registration of the partnership so far as they relate to the partnership property]6 , and
(b) during the marriage [ or partnership]7 ,
which are outstanding at that date.
condictio causa data causa non secuta (condictio)
Where payment or performance has been given and the counterpart consideration has failed, the money paid or the value of the performance should be restored under principles of unjustified enrichment. Before Condictio is applicable it must be clear that the transfer of the property was subject to a mutually agreed understanding that it was made in consideration that the marriage would take place
Gifts (engagement ring)
Eng. s.3(2) (2) The gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason. Law Reform (Miscellaneous Provisions) Act 1970 c. 33
Scots no provision; Gold v Hume (1950) 66 Sh Ct Rep 85; Savage v M’Allister (1952) 68 Sh Ct Rep 11
Where a couple receive engagement presents from third parties, it is thought that these are returnable if the marriage does not take place
Stair I 7.7
s. 128 the Civil Partnership Act 2004
No promise or agreement to enter into civil partnership creates any rights or obligations under the law of Scotland; and no action for breach of such a promise or agreement may be brought in any court in Scotland, whatever the law applicable to the promise or agreement.
s.3(1) Marriage (Scotland) Act 1977
(1) Subject to subsections (2) to (4) below, each of the parties to a marriage intended to be solemnised in Scotland shall submit to the district registrar a notice, in the prescribed form, of intention to marry (in this Act referred to as a “marriage notice” ) [and]1 the prescribed fee, his birth certificate and…
(a) if previously married - a copy of the decree of divorce….. and if dead - spouse’s death certificate
s.3(5) Marriage (Scotland) Act 1977
A party to a marriage intended to be solemnised in Scotland who is not domiciled in any part of the United Kingdom is required, if practicable, to submit under subsection (….
Civil marriage place
s.18 Marriage (Scotland) Act 1977 (no religious permises)
s.8 Marriage (Scotland) Act 1977
Persons who may solemnise marriage
religious or belief body
means an organised group of people—
(a) which meets regularly for religious worship; or
(b) the principal object (or one of the principal objects) of which is to uphold or promote philosophical beliefs and which meets regularly for that purpose;
s. 26 Interpretation., Marriage (Scotland) Act 1977 c. 15
s.9 Marriage (Scotland) Act
Registration of nominated persons as celebrants - amendments pending
s.13 Marriage (Scotland) Act 1977
solemnisation: according to act, both party must be present; witnesses over 16 and approved celebrant
s.15(2) Marriage (Scotland) Act 1977
(2) The parties to the marriage shall, within 3 days thereafter, deliver the Marriage Schedule, or send it by post or arrange that it is delivered, to the district registrar.
s.23A Marriage Scotland Act 1977
Validity of registered marriage
Saleh v Saleh 1987 SLT 633
scope of s.23A
Sohrab v Khan 2002 SLT 1255
There must be a marriage schedule which can be produced at the solemnisation of the marriage
s.24 Marriage Scotland Act 1977
Offences; enter marriage if know that other party is already in marriage or civil partnership; conviction of indictment (not exceeding 2 years or fine); summary conviction (not exceeding 12 month or fine); falsifies pr forges Marriage Schedule
per verba de praesenti
marriage - declaration abolished 1939
per verba de futuro subsequente copula
promise to marriage followed by sexual intercourse abolished 1939
marriage by cohabitation doctrine
must made pretence of being married;valid; Vosilius v Vosilius 2000 SCLR 679; s.21 declarator (a) a marriage by cohabitation with habit and repute …s.3(1) Family Law (Scotland) Act 2006 cease ; exception married abroad - think valid but invalid under the law where wedding took place, the party must day. If one party find out before the death the exception does not apply
Part 2 of Marriage and Civil Partnership Act 2014
religious and beliefs registration of civil partnership
s.95A Civil Partnership 2005
they cannot be find invalid but can be guilty of offence if not comply with registration formalities
s.20A The Marriage (Scotland) Act 1977
grounds on which marriage void (2) This subsection applies if at the time of the marriage ceremony a party to the marriage who was capable of consenting to the marriage purported to give consent but did so by reason only of duress or error.
(3) This subsection applies if at the time of the marriage ceremony a party to the marriage was incapable of—
(a) understanding the nature of marriage; and
(b) consenting to the marriage.
Mahmud v Mahmud 1994 SLT 599
forced by parent (send to another country, cut from financials);declarator was granted even though the marriage was consummated
Buckland v Buckland [1967] 2 All ER; [1968] P 296
eng. Court held that before it is relevant the fear must have been unjustifiably imposed
s. 1 Forced marriage protection orders, Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 asp 15 (Scottish Act)
(1) The court may make an order for the purposes of protecting a person (a “protected person”)—
(a) from being forced into a marriage or from any attempt to force the person into a marriage, or
(b) who has been forced into a marriage
- applicable to civil partnership as wells (s.123(1) Civil Partnership Act 2004)
Sham marriage
saying yes but meaning no (common law - was)(immigration) - abolished
s. 5 Same sex marriage: further provision, Marriage and Civil Partnership (Scotland) Act 2014 asp 5 (Scottish Act)
(1) For the avoidance of doubt, the rule of law which provides for a marriage to be voidable by reason of impotence has effect only in relation to a marriage between persons of different sexes.
Marriage by cohabitation with habit and repute
prospectively abolished
