SCOTLAND
White Paper: Parents and Children
The Scottish Executive’s proposals for improving Scottish Family Law
(2001)
Full Paper: http://www.scotland.gov.uk/justice/familylaw/pac-00.asp
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OUR PROPOSALS
6.4 References in what follows to “recommendations” are to the relevant recommendations of the Scottish Law Commission’s 1992 report on Family Law (Scot Law Com No 135).
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(b) Parties of same sex
6.4.2 Recommendation 45 is that it should continue to be a ground of nullity of marriage that both parties are of the same sex. There were two responses to consultation that considered this requirement to be discriminatory. While we fully recognise that a same sex partnership may have similar characteristics to a partnership between opposite sex cohabitants, it is not the Executive’s policy to introduce same sex marriage into Scotland.
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Choice of Law and Private International Law
6.4.14 Recommendation 70(a) proposed that, subject to the Foreign Marriage Act 1892 as amended, the question whether a marriage is formally valid will be governed by the law of the place of celebration. We propose a statutory enactment of the existing law to this effect.
6.4.15 Recommendation 70 (b) proposed that the question whether a marriage is essentially invalid because either party was under a legal incapacity to enter into it or did not give a legally effective consent to it will be governed by the law of that party’s domicile immediately before the marriage.
6.4.16 This proposes that the question whether a marriage is essentially valid should be governed by the law of that party’s domicile immediately before the marriage. There is some uncertainty under existing law whether a party must also have capacity by the law of the place of celebration. We propose to legislate to give effect to this recommendation.
6.4.17 A marriage entered into in Scotland will be invalid, no matter what the domiciles of the parties, if, according to Scottish internal law, at the time when the marriage was entered into
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(d) the parties were of the same sex, or … .
6.4.18 This proposal gives the grounds under which a marriage celebrated in Scotland would be invalid. These exceptions to the general rule that capacity to marry is governed by the law of each party’s domicile are fundamental to the nature and basis of marriage, and are justified for reasons of public policy. We propose to implement these recommendations.
6.4.19 In Scots law, it is the settled position that the place of celebration of a marriage governs the formal validity of that marriage.16 We will also ensure that this position is set in statute (see paragraph 6.4.14 above). This means that a marriage in Scotland between parties domiciled outwith Scotland will be valid if it was entered into in such a manner as to constitute a marriage in Scots law. However, it has been suggested that there is some difficulty with this position, in particular in deciding what relates to formality and what relates to substance. Scottish courts have taken the view that parental consent is always a matter that pertains to the formality of marriage.17 However, the SLC has taken the view that it would be unsatisfactory to classify all requirements of parental consent automatically as formal requirements. (Recommendation No 72)
6.4.20 Some matters, such as the legal preliminaries to marriage (notices, time, place and nature of ceremony, witnesses, registration etc) relate to form. The SLC suggested that it would be unsatisfactory to classify a requirement that related only to marriages in a particular form or place as one which would result in legal incapacity. The SLC also did not wish to oblige Scottish courts to follow a particular foreign classification.
6.4.21 Instead, the SLC recommended that a foreign rule requiring a person under a certain age to obtain the prior consent of a parent or guardian before he or she can marry should be regarded as resulting in a legal incapacity for marriage if, but only if, it precludes a marriage by that person anywhere in any form while under that age. Such a solution would mean, for instance, that the rule of English law that requires parental consent to the marriage of a person under 18 would continue to be regarded in Scots law as one which did not result in a legal incapacity for marriage, because it applies only to marriages in certain forms in English law. Yet it would be consistent with Section 3(5) of the Marriage (Scotland) Act 1977, which requires foreign domiciliaries to produce certificates of capacity to marry under their own law. That provision was designed to discourage “runaway” marriages by foreign minors without parental consent.
6.4.22 There was overwhelming support from those who responded to this question in Improving Scottish Family Law. Therefore, we propose to legislate on these lines.
6.4.23 The SLC recommended (No 73) that where, on the application of the above rules, a marriage is initially valid it should not be annulled or declared null by a Scottish court on any ground. This proposes that the grounds available in Scottish courts for dissolving a valid marriage should depend on Scots law. This will not change existing practice in relation to grounds of voidability unknown to Scots law. Foreign nullity decrees would continue to be recognised if the court had jurisdiction. We propose to legislate along these lines.
6.4.24 The SLC recommended (No 74) that a foreign rule as to the validity or invalidity of a marriage will not be recognised or applied in Scotland where to do so would be contrary to Scottish public policy. We propose to legislate along these lines.