Marriage in Scotland
A promise made that you will marry someone or becoming engaged to be married is a customary feature of Scots life. This promise used to be considered by the courts to be a binding one on the promisor. If the promise was broken an award in damages was available to the disappointed party. This has not been the law since 1984. Engagements therefore have no status in Scots law, although difficulties can occasionally arise about the true ownership of engagement presents where the parties have subsequently separated.
There are two types of marriage in Scotland: the regular marriage and the common law marriage. Regular marriages are by far the most common.
You must be sixteen years or over to marry in Scotland. Obvious though it may seem, you cannot get married if you are already married. Bigamy is a criminal offence in Scotland and can lead to a prison sentence. You are not allowed to marry certain people on the basis that they are related or have a close relationship to you. The list of prohibitions is quite large but in most cases is a matter of common sense. Thus you cannot marry your mother or sister but where you are unsure you should always check as the list includes such categories as a prohibition on marrying the son of a former husband in certain circumstances.
Before marrying you must submit a marriage notice to the registrar of the district in which you intend to marry. This requires to be done whether or not you marry in a registry office, church or elsewhere. Neither party needs to be domiciled in Scotland prior to marriage nor need you live in the Registry district. A fee is paid and the marriage notice displayed in the Registry office. Any person can then object to the marriage. The objection must be a valid one such as one of the parties is already married. If a valid objection is received it will be investigated. Occasionally, the Registrar investigates suspicious proposed marriages on his own account. A marriage cannot take place until the investigation has concluded. The Marriage Notice must be displayed for at least fourteen days.
When the fourteen days have expired and where there are no objections a marriage schedule is issued. The marriage schedule acts as a licence to marry. If the parties intend to marry in a religious place then the licence is given to the Minister, Imam, Rabbi etc.
For further information on the rules of marriage under Scots law, please contact our family solicitors on 0141 404 1091 or fill out our online enquiry form.
Common Law Marriage
It is still quite common to hear people speak of themselves as having a common law wife or husband. The term arises from the legal recognition that some partners live together as man and wife but may have never formally married.
If you are married at common law then you have the same rights as regularly married couples. Common law marriage is rare. The mere belief that you are married at common law does not mean that you are. It is likely that in most cases, couples who have never married but have long standing stable relationships including children remain single people in the eyes of the law.
Married by cohabitation by habit and repute is the legal term for a common law marriage. To be married at common law you would have to persuade the Court that you behaved in a way that was compatible with marriage and that your nearest friends and relatives also believed you to be married. This is a high test and whilst many relationships have all the qualities of a formal marriage they would normally fail on the second test.
There are only about five applications to the court a year to have a marriage recognised as a common law one. In one case the judge was persuaded that two Catholic divorcees who had swapped rings but never formally married were married at common law. Upon swapping the rings the male romantically exclaimed, ‘that’s it hen’, this helped to satisfy the judge of his intentions. As the couple were prevented from marrying in their church and did not wish a civil ceremony because of their faith they had set up home and lived as husband and wife. He called her ‘the missus’ or ‘the wife’ and in all the circumstances of the case the judge was persuaded that the couple had indeed been married at common law [“’That’s it hen’ convinces judge” Glasgow Herald, 8th April 2000].
Since 2006 it has no longer been possible to commence a common law marriage. Common law marriages commencing before 2006 will remain valid in most circumstances. The concept of the common law marriage will eventually disappear with the passage of time.
In order to prove a common law marriage an action must be raised in either the Sheriff Court or the Court of Session.
There is no concept of marriage annulment in Scotland. The Court can declare your marriage to be void however and this effectively annuls the marriage. A void marriage is one that never existed. You must always have the Court declare the marriage to be void before you remarry.
In very unusual circumstances it can be argued that even where you have gone through a legal marriage ceremony your marriage is void. Where one party is mentally ill and did not know what he or she was doing the court will hold that there was no consent to marry and that the marriage was void. In this case, the ill party will have had no capacity to marry.
A more intriguing possibility arises where the parties are drunk when marrying. If you wished to persuade a court you did not give your consent to a marriage you would have to also convince the court you were so drunk that you had no idea of what you were doing. This ploy would not work on the basis that you had four or five gins before the ceremony for courage!
Similarly, but very unusually, forcing someone to marry you may result in a void marriage. There have been no reported cases of a forced marriage in Scotland.
Finally, sham marriages are not recognised in Scotland. In one case the parties, who were devout Catholics, married in a registry office in order that one party could gain entry to the country. The marriage was one of convenience and a sham; the parties did not consummate the marriage or live together afterwards. The court held that in cases such as this no marriage had taken place.
The Catholic Church will occasionally grant a marriage annulment allowing a party to remarry in the Church. The effect of an annulment is to say, in the Church’s eyes, that the marriage never existed. Annulments are not recognised by the law. If you are granted an annulment you must also obtain a civil divorce. If you do not obtain a divorce you cannot remarry.
Sex and Marriage
A marriage need not be consummated. Where a party refuses to consummate the marriage this is a ground for divorce. If a party were unable to consummate the marriage through impotence that marriage may be voidable.
Sex with a third party is grounds for divorce. Where one party makes excessive sexual demands on the other that too may be a ground for divorce.
Where a man forces his wife to have sex against her will, that is rape.
There is no requirement to take your husband’s name after marriage. In Scotland you can call yourself whatever you like as long as it is not with the intention of fraud or deceit. Changing your name by deed poll is an English practice. There are no formalities for changing your name in Scotland.