Scots family law is the body of laws in Scotland which regulate certain aspects of adult relationships and the rights and obligations in respect of children.
Marriage and civil partnership
Marriage
There are two types of recognised marriage in Scotland, informal and formal. Both are equally valid under Scots law but, as of 4 May 2006, only formal marriages can now be contracted in Scotland.
Before the Marriage (Scotland) Act 1939, Scots law, following the principles of canon law, recognised three types of informal marriage. Marriage per verba de praesenti was constituted where the parties, without any need of a witness, made a mutual declaration to take each other as husband and wife.Stair, Child & Family Law (Reissue), para. 531 (Online) Retrieved 23 February 2012 Marriage per verba de futuro subsequente copula was constituted when the parties, having agreed to marry on a future date, had sex.Stair, Child & Family Law (Reissue), para. 532 (Online) Retrieved 23 February 2012 It has not been possible to form either of these irregular marriages since 1 July 1940. Marriage by cohabitation with habit and repute was constituted when the parties agreed to live together as husband and wife and were generally reputed to be married amongst those who knew them well.Stair, Child & Family Law (Reissue), para. 533 (Online) Retrieved 23 February 2012 It has not been possible to form this type of marriage since 4 May 2006Family Law (Scotland) Act 2006, s. 3 but such marriages that were created before that day continue to be valid, as well as some after in certain narrow circumstances.Family Law (Scotland) Act 2006, s. 3(3)Stair, Child & Family Law (Reissue), para. 534 (Online) Retrieved 23 February 2012
Formal marriages are created under and according to the requirements of the Marriage (Scotland) Act 1977. A formal marriage may be formed through either a religious ceremony or a civil ceremony, but both must generally comply with the same procedural requirements. First, the parties must submit what is known as a "marriage notice" to the district registrar responsible for the area they intend to be married in along with birth certificates for each party.Marriage (Scotland) Act 1977, ss. 3(1) and 26(2). The district registrar will then enter the parties' details and the proposed date of the marriage in the local marriage notice book, which gives the public an opportunity to object to the marriage.Stair, Child & Family Law (Reissue), para. 525 (Online) Retrieved 23 February 2012 In order to allow a sufficient amount of time for potential objections to be filed, there is normally a 14-day waiting period between the day the marriage notice is received and the parties can marry, although the registrar can shorten this period in exceptional circumstances. After the 14-day waiting period and the registrar has determined that there are no legal impediments to the marriage, he will issue what is known as the "marriage schedule".Marriage (Scotland) Act 1977, s. 6(1) If the parties intend to have a religious ceremony, the marriage schedule acts as a licence authorising the celebrant to proceed, in which case the registrar will only issue it 7 days before the ceremony.Marriage (Scotland) Act 1977, s. 6(4)(b) If after 3 months no marriage schedule is issued because no religious ceremony is to occur, the registrar can require the parties to start again with a new marriage notice.Marriage (Scotland) Act 1977, s. 6(2)
Civil ceremony If the parties choose to have a non-religious ceremony, the district registrar will retain the marriage schedule. The ceremony is normally conducted by the district registrar at his or her office or at another government approved location in the district. The registrar may also conduct the ceremony anywhere in their district if one of the parties is suffering from a serious illness or injury.Stair, Child & Family Law (Reissue), para. 527 (Online) Retrieved 23 February 2012
Religious ceremony A religious ceremony is performed by a person who has been legally authorised by the government to sanction the marriage. The marriage schedule acts as a licence legally authorising the person to sanction the marriage. A religious ceremony may only be performed by (1) a minister of the Church of Scotland,Marriage (Scotland) Act 1977, s. 8(1)(a)(i) (2) a priest or other marriage celebrant of a religious body prescribed by regulations made by the Secretary of State,Marriage (Scotland) Act 1977, s. 8(1)(a)(ii) (3) another person nominated by a religious body and registered with the Registrar General of Births, Deaths and Marriages,Marriage (Scotland) Act 1977, s. 8(1)(a)(iii) or (4) any other person over the age of 21 who is temporarily authorised by the Registrar General.This provision is used only in exceptional circumstances. Stair cites the example of authorising a person who is a priest registered outside Scotland to marry relatives in Scotland. (Stair, Child and Family Law (Reissue), para. 528, footnote 6 (Online) Retrieved 23 February 2012)Marriage (Scotland) Act 1977, s. 8(1)(a)(iv) After the ceremony, the parties sign the marriage schedule, which must be returned to the district registrar within three days of the ceremony.Marriage (Scotland) Act 1977, s. 15(1)
Legal impediments to marriage There are six defined impediments to both regular and irregular marriage: the parties are too closely related;For a list of the forbidden degrees of relationship, see Schedule 1 Marriage (Scotland) Act 1977 one of the parties is already married;Marriage (Scotland) Act 1977, s. 5(4)(b) one or both of the parties is under the age of sixteen;Marriage (Scotland) Act 1977, s. 1(1) one or both of the parties legally lacks capacity to understand or consent to the marriage;Marriage (Scotland) Act 1977, s. 5(4)(d) one or both of the parties are domiciled in another legal jurisdiction and the party is impeded from marrying on another ground in that jurisdiction;Marriage (Scotland) Act 1977, s. 5(4)(f) or, the marriage is a sham marriage.Stair, Child and Family Law (Reissue), para. 630 (Online) Retrieved 23-02-2011
If any of these impediments exist when the marriage is solemnised it will make the marriage void.Stair, Child and Family Law (Reissue), para. 620 (Online) Retrieved 23-02-2011 It is not possible for a person under the age of sixteen to marry, even with parental consent. A party who lacks the capacity to understand or consent to a marriage cannot marry, although legal precedent in Scotland has established that it would take a significant degree of lack of understanding or diminished intelligence before the marriage would be considered void.Stair, Child and Family Law (Reissue), para. 627 (Online) Retrieved 23-02-2011 Extreme intoxication due to alcohol or drugs has been accepted as grounds by courts in the past.Johnson v Brown (1823) 2 S 495 Other legal grounds to claim a contract is void under Scots contract law, such as error, have less scope in regards to marriage. For example, a marriage contract is an exception to the general rule in Scots law that an error held by one of the parties induced by the fraudulent misrepresentation of the other makes the contract void.Lang v Lang 1921 SC 44 So, a marriage would not be void where a man married a woman because she told him she was pregnant with his child and actually she was not pregnant at all.
The only recognised ground where a marriage is voidable (i.e. the marriage exists until it is made void through a court order) is the incurable impotency of either spouse. The impotency must have existed at the time the marriage was solemnised and continue to exist at the time that a declarator of nullity is sought. Impotency in this case is distinguished from sterility and a refusal to have sex, both of which do not make the marriage voidable.Stair, Child and Family Law (Reissue), para. 632 (Online) Retrieved 23-02-2011
In the situation that a marriage is void or voidable, any legitimately interested party (usually one of the parties to the marriage) can seek a declarator of nullity of marriage from the Court of Session, which will acknowledge that their marriage is void and, in effect, never existed. When making such a ruling the judge has the power to make awards for financial provision, like in a divorce.Stair, Child and Family Law (Reissue), para. 621 (Online) Retrieved 23-02-2011
Civil partnership
The Civil Partnership Act 2004 created the status of civil partnership across the United Kingdom. It is distinct from marriage, although the rights and obligations between them are largely the same. The main difference between the two is that a civil partnership must be created through a civil ceremony.
The procedural requirements to create a civil partnership are largely the same as a marriage, except that the marriage notice is replaced with a "notice of proposed civil partnership" and the marriage schedule is replaced with a "civil partnership schedule".Stair, Child and Family Law (Reissue), para. 520C (Online) Retrieved 24 February 2012 The proposed civil partnership is advertised and a 14-day waiting period for objections from the public applies.Civil Partnership Act 2004, s. 92(5)(b) The district registrar has determined there are no legal impediment to the civil partnership will issue the civil partnership schedule after the 14-day waiting period elapsed.
The civil ceremony to create the civil partnership may occur at the district registrar's office or any other location within the relevant district agreed between the parties and the district registrar. The ceremony, however, cannot take place in religious premises.Civil Partnership Act 2004, s. 93(3) The parties, two witnesses over the age of sixteen and the district registrar will sign the civil partnership schedule and it will then be registered by the district registrar.Stair, Child and Family Law (Reissue), para. 520B (Online) Retrieved 24 February 2012
Legal impediments to civil partnership There are five legal impediments to forming a civil partnership in Scotland: the parties are not the same sex; the parties are too closely related;For a list of the forbidden degrees of relationship see Schedule 10 Civil Partnership Act 2004 one or both of the parties are under the age of sixteen; one or both of the parties are married or in a civil partnership; or, one or both of the parties are incapable of understanding or consenting to forming a civil partnership.Civil Partnership Act 2004, s. 86(1)
If any of these impediments exist when the civil partnership is created it will be void. In Scotland, there are no grounds which will make a civil partnership voidable.Stair, Child and Family Law (Reissue), para. 642B (Online) Retrieved 24 February 2012 If a civil partnership is formed in England and Wales or Northern Ireland and the civil partnership is voidable in those jurisdictions, it will also be voidable in Scotland.Civil Partnership Act 2004, ss. 124(1), 124(2)For a list of grounds which would make a civil partnership voidable in England and Wales see Civil Partnership Act 2004, s. 50(1)(a)-(e); for Northern Ireland see s. 174(1)(a)-(e)
Divorce and dissolution Divorce