Marriage in Scotland

Marriage in Scotland is between a man and a woman. Civil partnerships became available to same-sex couples in December 2005 and grant rights and responsibilities identical to civil marriage.

Eligibility

There are residency conditions that have to be met before people can be married. If one of the people wanting to marry is subject to immigration control, notice of marriage can only be done at a designated register office, which both parties must attend together.

The marriageable age is 16. Marriage must be between two otherwise unmarried people. (foreign divorces are generally recognised, but existing foreign polygamous marriages prevent a marriage in Scotland as this would be treated as bigamy).

Certain relatives are not allowed to marry. Under Scots law, one may not marry one's:

• ancestor or descendant
• sibling
• aunt/uncle or nephew/niece
• adoptive parent
• adopted child

Additionally, the following marriages are not allowed except under certain circumstances:

• former spouse's descendant or ancestor
• ancestor or descendants's former spouse

The list of proscribed affinities was reduced in the early twentieth century by the Deceased Wife's Sister's Marriage Act 1907, the Deceased Brother's Widow's Marriage Act 1921 and the Marriage (Prohibited Degrees) Relationship Act 1931.

Marriage procedures

The Marriage (Scotland) Act 1977 is the main current legislation regulating marriage. The Marriage (Scotland) Act 2002 extends the availability of civil marriages to "approved places" in addition to Register Offices and any other place used in exceptional circumstances; religious marriages in Scotland have never been restricted by location.

Marriages can either be conducted by "authorised celebrants" (usually, but not always, a minister of religion) or by an "authorised Registrar".

Both parties to a marriage are required to independently submit marriage notice forms to the registrar of the district in which the marriage is to take place. In religious marriages a "Marriage Schedule" is completed by the parties involved and submitted to the local Register Office after the marriage so that it can be registered; the Marriage Schedule must be produced to the person performing the marriage otherwise it cannot take place. After the ceremony the Schedule is signed by the couple, their witnesses and the person performing the marriage. In civil marriages the Schedule is kept by the Registrar and signed after the ceremony. Unless specially authorised by the Registrar General, a minimum of 15 days notice must be given for a marriage but procedural requirements increase this for most marriages to 4–6 weeks to ensure that it can be determined that there is no impediment to the marriage. A list of forthcoming local marriages is displayed to the public at each Register Office.

Irregular and common-law marriages

Under earlier Scots law, there were three forms of "irregular marriage" which can be summarised as the agreement of the couple to be married and some form of witnessing or evidence of such. An irregular marriage could result from mutual agreement, by a public promise followed by consummation, or by cohabitation and repute^[1]. All but the last of these were abolished by the Marriage (Scotland) Act 1939, from 1 January 1940. Prior to this act, any citizen was able to witness a public promise. The tradition of eloping English couples searching for blacksmiths resulted legally from the fact that blacksmiths were necessarily citizens and could often be recognised by strangers by their presence at their forge.

A marriage by "cohabitation with repute" as it was known in Scots Law could still be formed; popularly described as "by habit and repute", with repute being the crucial element to be proved. In 2006, Scotland was the last European jurisdiction to abolish this old style common-law marriage or "marriage by cohabitation with repute", by the passing of the Family Law (Scotland) Act 2006.^[2]

Border marriages

In the eighteenth and nineteenth centuries, marriage laws in Scotland encouraged the practice of couples wishing to marry eloping from England to Scotland. With transport less developed, many of these marriages were at Gretna Green, the first Scottish settlement on the main West Coast route from England; hence the term Gretna Green marriage for marriages transacted in a jurisdiction that was not the residence of the parties being married, to avoid restrictions or procedures imposed by the parties' home jurisdictions.^[3] Other Scottish Border villages used for these marriages were Coldstream Bridge, Lamberton Toll (in Lamberton, Berwickshire), Mordington and Paxton Toll. Portpatrick in Wigtown was used by couples from Ireland, because of the daily packet boat service to Donaghadee.

Gretna's famous runaway marriages began in 1753 with the passing of Lord Hardwicke's Marriage Act in England. The Act required consent to the marriage from the parents if a party to a marriage was not at least 21 years old. However in Scotland it was possible for boys to get married at 14 years and girls at 12 years without parental consent. Some Gretna marriages were of (sometimes abducted) heiresses; e.g., the second marriage in 1826 of Edward Gibbon Wakefield to the young heiress Ellen Turner, the Shrigley abduction. Other motives for Gretna marriages were to avoid publicity or to marry immediately.

In 1856 Scottish law was changed to require 21 days' residence for marriage, and since 1929 both parties have had to be at least 16 years old (though there is still no parental consent needed). A further law change was made in 1940 to abolish these irregular marriages by declaration. The residential requirement was lifted in 1977.^[4]

Gretna Green remains as a favoured marriage location for marriage because of its romantic associations, with possibly one of every six Scottish weddings taking place at Gretna Green .

Benefits and consequences

Main article: Legal consequences of marriage in the United Kingdom

Upon death of one's spouse, bequests to the other spouse do not incur inheritance tax. Intestate property by default will go to the spouse. Also, there is partial inheritance of pensions.

Non-British spouses of British citizens may obtain residence permits.

Spouses are considered to have a duty of care towards each other, and certain social security benefits are calculated differently from those for single people.

Foreign citizens wishing to marry in the UK

From 1 February 2005, visitors who wish to be married in the UK that are a citizen of a country that is not a member of the European Economic Area (EEA), must apply for a visa before they travel. Without the visa the registrar will not be able to accept the notice of marriage and will not be able to perform the marriage ceremony.

If you are already in the UK, and you are a citizen of a country that is not a member of the EEA, you will need the approval of the Home Secretary to be married. This will be provided in the form of a certificate of approval.

Divorce

Divorce is allowed under certain circumstances as is civil re-marriage, though different religions and denominations differ on whether they permit religious re-marriage.

The Equal Marriage Campaign

In March 2009 the Equal Marriage Campaign was established by the NUS LGBT Scotland Campaign and is calling on the Scottish Parliament to amend legislation to allow same-sex marriage and mixed-sex civil partnership in Scotland with the support of policians, organisations and individuals across Scotland and beyond.^[5]

The Equal Marriage Campaign ran a Scottish Parliament petition which closed in September 2009 with over 1000 signatures.^[6]

See also

• Scots family law
• Civil partnership

References

1. ^ http://www.ancestry.co.uk/learn/library/article.aspx?article=8397
2. ^ Family Law (Scotland) Act 2006
3. ^ See Black's Law Dictionary.
4. ^ http://news.bbc.co.uk/1/hi/scotland/4711708.stm
5. ^ Equal Marriage Campaign Website
6. ^ Equal Marriage Campaign Website