Family law 101

Family Law –L1

Article 12 of the European Convention on Human Rights provides:

“Men and women of marriageable age have the right to marry and to found a family, according to the national law governing the exercise of this right”

An engagement is no longer a legally enforced contract which means no contractual remedies for breach of promise are not competent in Scottish courts. A promise or agreement to marry does not create rights or obligations in scots law and excludes delictual liability under Law Reform (Husband and Wife) (s) Act 1984

Recent developments

Marriage (S) Act 2002 – get married underwater at Deep Sea World or Edinburgh Zoo

Civil Partnership Act 2004 – so called “gay marriage” – ECHR driven

Gender Recognition Act 2004 – ECHR driven

Family Law (Scotland) Act 2006

  • Prohibited degrees relaxed slightly
  • Void marriages clarified, duress & error only, tacit reservation no bar
  • Irregular marriage abolished henceforth
  • Divorce & dissolution grounds relaxed
  • Unmarried fathers get PRRs if registered
    • s 11 Children (S) Act 1995 amended
    • Cohabitants rights much enhanced
    • Financial provision on divorce, dissolution changes

Adoption & Children (S) Act 2007

    • Reforms to
  • Adoption Support Services
  • Who may adopt
  • Grounds for dispensing with consent
  • Permanence Orders
  • 1978 Act repealed

Forced Marriage etc (P&J) (S) Act 2011 Lexis Nexis

Recent Examples of major Family Law Reform

  • Gender Recognition Act 2004
  • Civil Partnership Act 2004
  • Family Law (Scotland) Act 2006
  • Adoption & Children (Scotland) Act 2007
  • M&CP(S)A 2014

Formalities of marriage

M&CP(S) A 2014

  • An Act of the Scottish Parliament to make provision for the marriage of persons of the same sex;
  • to make further provision as to the persons who may solemnise marriage and as to marriage procedure and the places at which civil marriages may be solemnised;
  • to make provision for the registration of civil partnerships by celebrants of religious or belief bodies;
  • to make provision about gender change by married persons and civil partners;
  • to make a minor correction in relation to registration information; and for connected purposes.
  • Mge of related persons still banned, s1 amends s2 M(S)A 1977
  • References in existing legislation & documents to mge, widows, divorce etc includes mge as defined henceforth i.e. includes same gender

The Formalities of Marriage

  • Marriage is a contract but very different from any other business etc contracts
  • Marriage changes legal status of parties
  • Married persons instantly subject to mandatory legal regime governing relationships with each other, their children and others

Marriage will not be valid unless the parties have capacity to marry and the marriage conforms the formalities required by the law of the place where marriage is celebrated in Scotland.

Special mandatory rules govern constitution of this special contract. The rules govern; who may get married, How they get married, Where they do it, by whom (3rd party celebrant needed), the Terms and conditions (no choice)

Civil Partnerships

CPA 2004 ss87-100 – the provisions cover notice, objections, place of reg, offences (bigamy etc). Each of the parties to a marriage which is intended to be solemnised in scot, religious or civil ceremony MUST submit a notice of intention to marry to the district register.

 

 

Engagement gifts

Where a couple receive presents from 3rd parties it thought they are returnable if the marriage does not take place. Where a gift is made expressly or impliedly conditional on the marriage taking place, it must be returned if the condition fails.

  • Customary but not now or ever a legal requirement or status
  • E - personal & social commitment only
  • Damages for breach of promise to marry abolished 1984 (Scotland), 1970 (E&W)
  • per LR(H&W)Act 1984, s1, retrospective

Broken Engagement

  • Gifts?
  • Ownership?
  • Conditional? To be returned?
  • Any distinction between
  • gifts between fiancées [ring] &
  • gifts from others?

Ordinary law of property applies but leads to lack of clarity

Engagement Gifts?

  • From 3rd parties
  • Unclear –
    • Probably outright gifts to one or other or both, but depends on context of gift
    • Possibly returnable if conditional on Marriage which doesn’t occur esp gifts from 3rd Parties [unjust enrichment?]
    • Rebuttable Presumption that gifts are outright?
    • Between the engaged couple –
    • Unclear –
    • - Probably outright gifts to each other not returnable, depends on context of gift
    • Possibly returnable if conditional on Marriage which doesn’t occur
    • Sutherland discusses conflicting Scots authorities re-engagement ring at para 12.010

Wedding gifts

In Shilliday v Smith 1998 - a women provided her fiancé with funds so they could improve the house in which the INTENDED to live AFTER they were married. When the marriage didn’t take place she obtained recompense for the expenditure since it was clear that she had NOT intended the money to be a gift and that the payment was conditional on marriage taking place. If did marry, property would be matrimonial. Sums given by lady to fiancée for improvements to his house which was to be the matrimonial home, were returnable when couple split without marrying.

There must be no impediments which include non-age, prohibited relationships or mental capacity.

 

 

 

 M(S) A 1977 as amended by M(S) A 2002 & M&CP(S) A 2014

This is for Regular Marriage

(Irregular marriage, no formalities, but now)

N.B. observation of formalities will not cure legal impediments.

N.B. mere observation of formalities will not cure any fundamental legal impediments.

Thus where separated-at-birth-twins married not knowing they were siblings, marriage annulled, void ab initio

English High Ct case, revealed in January 2008

Details emerged in course of HoL debate on whether birth certificates of AID/IVF children should disclose donor ID info.

Preliminary Formalities common to both involve –

  • prior notice to Registrar, s3 MSA 1977
  • public intimation, s4 MSA 1977
  • opportunity for objections, s5 MSA 1977
  • completion of Marriage Schedule, s6 MSA 1977

What about Civil Partnerships?

    • CPA 2004, ss87-100
    • Equivalent provisions
    • Covers
          • Notice & Notice Book
          • Public intimation of notice
          • Objections
          • Place of registration
          • CP schedule
          • Correction of errors
          • Offences [e.g. “bigamy*”], s28 M&CPSA 2014

 

 

 

 

 

 

 

Prior Notice to Registrar, s3 MSA 1977

  • Submit to Registrar –
  • statutory form of Notice of Intention to Marry & CP was min of 14 days now 28 days per M&CP(S)A 2013, s18.
  • plus fee,
  • birth certificates,
  • (ex spouse’s or ex CP’s death certificate or proof of divorce or dissolution of CP),
  • official proof of freedom to marry if not UK domiciled

Prior Notice & Nationality

  • New – ss17 & 25 M&CPSA 2014 inserts new provisions in MSA 1977 & CPA 2004

R given power to require evidence of nationality of the parties to mge or CP

Public Intimation, s4 MSA 1977

  • Registrar receives marriage notice
  • R enters details in Marriage Notice Book
  • MN Book may be inspected by objectors
  • MN also displayed by R in a conspicuous place at R’s office
  • MN displayed until after marriage

Objections, s5 MSA 1977

  • Written objection may be submitted by anyone up to solemnisation of marriage
  • Some require investigation
  • If based on mental capacity, must be vouched by medical certificate
  • If legal impediment alleged (age, married, related) must fwd to RG & marriage not to proceed until RG satisfied
  • If objection is re-documentary inaccuracy, may be dealt with by correction
  • Minimum 28 days between notice and marriage or CP allows for objections
  • Notice period may be shortened on special application, s6(4)(a) MSA 1977
  • CP equivalent is s91 CPA 2004
  •  RG must approve.
  • No reasons specified in statutes but e.g. if parties very ill.

 

 

 

 

Marriage Schedule, s6 MSA

  • MS is licence or permission to marry
  • Issue of MS follows on from previous steps
  • R issues MS if satisfied that parties free to marry
  • MS authorises marriage
  • & (after) MS records details for posterity & public knowledge
  • CPA 2004, s94 for CP schedule

Two types of marriage

Religious/belief & Civil

Marriage Schedule, s6 MSA

  • If civil, R retains MS for completion & recording in office after civil ceremony
  • If religious/belief, MS given to couple to pass to celebrant to complete, MS is celebrant’s permission to conduct

Wrong Procedure?

  • Some incorrect procedural formalities not fatal
  • if MS recorded
  • but impediments make marriage void regardless

Religious – Religious or Belief Marriage or CP

  • Sch is celebrant’s licence/authority
  • Sch specifies specific place & date only
  • So long as place is specified in sch, needn’t be church, no restrictions on where a religious or belief ceremony held although religious premises may not be used for civil ceremony.

The district registrar issues the marriage schedule to the parties. The schedule acts as a licence to the celebrant to solemnise the marriage. R ceremony can be carried out at any time. An authorised celebrant person is (1) minister of the Church of Scotland (2) celebrants nominated by other religious bodies as a marriage celebrant and registered as such by the registrar general under s9 of MSA 1977.

 

 

The Celebrant

  • Ss 8 & 9, MSA 1977 & s87 CPA 2004 govern qualifying celebrants
  • Organisation must now apply [except for C of S] re-opposite sex mges
  • Above provisions now continue for opposite sex mge only, s12 2014 amending s8 MSA 1977

Celebrant – same sex mge or CP

  • The religious or belief body must apply [as with opposite sex mge]
  • C of S not automatically approved to do same sex mges unlike for same sex mge where it is
  • Nothing in new s8 shall force any organisation to apply
  • Nothing in new s8 requires any individual to participate in creation of same sex unions [mge or CP]

Other religious/belief bodies not C of S & not prescribed generally

  • Specific persons nominated by such may seek RG approval per s9
  • RG must be satisfied or rejects
  • Approval granted for 3 years maximum

- If celebrant is fit and proper & ceremony appropriate (parties are present, consent exchanged & witnessed & declaration of consent made by parties.

Celebrants can be removed from list, s10 MSA 1977

If they ask to be removed, nominating body asks, ceremony inappropriate, Celebrant is no longer fit & proper person, commits 1977 Act offence, operating for profit. Any other appropriate reason s9(5) MSA 1977, Public Register kept by RG of those authorised to do same sex & opposite sex mges.

Civil P’ship

  • May now be religious/belief too
  • List of such non-municipal celebrants necy
  • s24 M&CPSA 2014 inserts ss94A-E into CPA 2004

 

 

 

Celebrants

    • Entitled to receive notice of proposed removal
    • May appeal to Scottish Ministers
    • May not conduct marriages until notice withdrawn or restored to the list
    • Religious bodies must notify any changes of their own or celebrants’ details per s11

Religious/Belief Marriage – the celebrant

  • Emergencies, s12 –
  • RG may temporarily authorise any p >21 to conduct specified marriage(s) during a specific period
  • CP equivalent, s94E CPA inserted by s24 2014

Celebrants & human rights

M&CP(S) Act 2014, ss12, amends s8 MSA 1977

    • Religious [& belief] bodies will apply
    • Initiative with them to seek blanket authority but no individuals compelled thereby
    • Individuals may also apply but not compelled thereby to perform same sex unions
    • s16 2014 [re-ECHR guarantees] applies to celebrants too [freedom of thought, conscience, religion, expression]
    • Thus no compulsion

Religious/Belief Marriage – The Ceremony

  • Sch must be produced to celebrant, s13
  • Both parties must be present
  • 2 witnesses professing to be 16, too, must be present
  • Celebrants must perform ceremony approved by their “church”, s14

 

 

Ceremony must not be inconsistent with

  • parties present &
  • witnesses present,
  • exchange consent there & then before witnesses & celebrant,
  • Declaration by celebrant that parties are H & W, or married.
  • all per s9(3) 1977 Act as amended
  • Sch to be signed by
  • Parties, Witnesses, Celebrant
  • Sch registered, within 3 days,
  • R records Sch
  • R may issue notice requiring Sch, offence if no compliance, ss16 & 24

Registration protects from challenge re-defective formalities, s23A

  • Formal procedural (not impediments) defect may be an offence, s24;
  • but validity of the marriage is not affected due to s23A
  • s23A protection derives from registration
  • See s95A of 2004 Act for CP equivalent.

Registration of Sch

    • s23A protection is re-procedural formalities, not for legal impediments
    • Not legal impediments such as
          • Nonage,
          • prior marriage, prohibited degrees of relationship etc

 

 

 

 

 

 

Saleh v Saleh, 1987 SLT 633

  • Registrar unable to issue MS due to doubtfulstatus of one p,
  • Couple proceeded to ‘marry’ in Mosque anyhow
  • without 1977 Act formalities being observed.
  • Mge couldn’t be reg’d – no MS!
  • One party to the ‘mge’ sought nullity,
  • Nullity granted as s23A couldn’t apply where Mge not even reg’d.
  • s23A could excuse various things (e.g celebrant not officially approved) only so long as MS had been issued, parties present, MS completed & reg’d.

Sohrab v Khan 2002

[16 year old Asian girl, quickly arranged marriage to avoid man’s deportation, “usual” threats included her mother’s suicide. The marriage was vitiated for lack of consent.]

  • Also void due to gross procedural irregularity not curable by s23A –
  • No marriage schedule at time of rushed Glasgow mosque ceremony,
  • The MS which was obtained & registered referred to a date after the actual ceremony!
  • Thomson asserts that such a marriage could be saved eventually by MCHR if not for element of duress but MCHR incompetent for cohabitation after May 2006 per FLSA 2006, s3.

CIVIL Marriage – The Ceremony etc

  • 1977 Act, ss17-20
  • 2002 Act added s18A* to 1977 Act but now repealed by 2014 s21
  • Sch obtained as for religious but R keeps it as R performs ceremony
  • Place of Marriage governed by s18 & 18A* – Reg. Office or
    • *per 2002 Act prior approved/licensed venues, now repealed by M&CPSA 2014, s21

 

 

 

 

Venue

  •  Reg. Office or
  • Appropriate place
  • Not religious premises
  • Agree it with R
  • 2002 licence sysVenue – s18(3)&(4) MSA 1977

Application for other place may be made if one p unable to attend or ill or delay undesirable, subject to extra expense reimbursement (no official time restriction but office hours no doubt).

  • This would be “one-of”
  • Approval of other regular venues is LA function per 2002 Act but now repealedtem with permits granted by LA, repealed
  • Offences per s24  e.g. to solemnize Marriage without a sched or without being approved celebrant or in an unauthorised location, s24(1)(f) MSA 1977
  • Venue [Civil Mge]
    • M&CP(S) A 2014, s21
    • Major changes [much of s18 & s18A MSA 1977 repealed]
    • Henceforth at a Reg Office or an agreed, appropriate place rather than LA ‘approved/licensed’

(same as religious otherwise)

  • Both parties to be present,
  • 2 witnesses to be present (16)
  • Parties declare free to marry, no impediments
  • Consent exchanged before celebrant & witnesses
  • Celebrant pronounces couple as married
  • All sign MS,
  • R registers MS,
  • validity of marriage protected by s23A if marriage is registered,
  • s23A applies to protect from procedural challenge only (not impediments)

What about Civil Partnerships?

    • Since 2005 per 2004 Act.
    • No religious/belief option hitherto but see M&CP(S) Act 2014 s24(2) intros new s93A CPA 2004 to change this
    • Previously Civil exclusively
    • Same elements [but no official civil ceremony, just sign the register!]
    • M&CP(S) Act 2014, ss8-11 gives option to convert CP to Mge

CPA 2004, ss87-100

  • Equivalent provisions
  • Covers
  • Notice & Notice Book, Public intimation of notice, Objections, Place of registration CP schedule, Correction of errors, Offences [e.g. “bigamy”, common law abolished, now s28 2014 Act

M&CP(S) Act 2014, ss8-11 gives option to covert CP to Mge

    • specifies qualifying CPs e.g. if reg’d in Scotland
    • Govt to make regs covering specified aspects of process, see
    • legal effects of a converted CP e.g. to be treated as a Mge from date of reg’n of CP
      • s95A is equivalent of s23A protection for flaws in procedural formalities.
    • Although no official, statutory ceremony most Registrars do something ‘attractive’ similar to civil
    • See Dundee Registrar’s free promotional DVD!
    • Keen to attract customers
    • Wedding & CP services are big business for the local economy [flowers, catering, hotels, ‘costumes’ etc]