Marriage in Scotland
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Marriage in Scotland is recognised in the form of both civil and religious unions between individuals. Historically, the law of marriage has developed differently in Scotland to other jurisdictions in the United Kingdom as a consequence of the differences in Scots law and role of the separate established Church of Scotland. These differences led to a tradition of couples from England and Wales eloping to Scotland, most famously to marry at border towns such as Gretna Green. The legal minimum age to enter into a marriage in Scotland is sixteen years and does not require parental consent at any age.
In Scots law, there is a distinction between so-called religious marriages, conducted by an authorised celebrant, and civil marriages, conducted by a state registrar, but anyone over the age of 21 can apply to the Registrar General for authorisation to conduct a marriage under s12 of the
History
Middle Ages and early modern era
In the late Middle Ages and
In the Middle Ages, marriage was a sacrament and the key element in validity was consent. The sacramental status was removed at the Reformation, but the centrality of consent remained.
In the early modern era there was a stress on a wife's duties to her husband and on the virtues of chastity and obedience. How exactly patriarchy worked in practice is difficult to discern. Scottish women in this period had something of a reputation among foreign observers for being forthright individuals, with Pedro de Ayala, the Spanish ambassador to the court of James IV, noting that they were "absolute mistresses of their houses and even their husbands".[10]
Before the Reformation, the extensive marriage bars for kinship meant that most noble marriages necessitated a
Irregular and common-law marriages
Under early modern
A marriage by "cohabitation with habit and repute", as it was known in Scots law, could still be formed; popularly described as "
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's famous runaway marriages began in 1753 with the passing of
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.[16]
Gretna Green remains a favoured location for marriage because of its romantic associations, with Dumfries and Galloway (the council area containing Gretna Green) the most popular area to get married in Scotland in 2015 (4,395 marriages in Dumfries and Galloway, out of a total of 29,691 marriages throughout Scotland).[17]
Eligibility
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 descendant'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.
Procedures
Act of Parliament | |
Long title | An Act to make new provision for Scotland as respects the law relating to the constitution of marriage, and for connected purposes. |
---|---|
Citation | 1977 c. 15 |
Dates | |
Royal assent | 26 May 1977 |
Status: Current legislation | |
Text of statute as originally enacted | |
Text of the Marriage (Scotland) Act 1977 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk. |
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; 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.
Benefits and consequences
Upon death of one's spouse, bequests to the other spouse do not incur
Foreign citizens wishing to marry in the UK
From 1 February 2005, visitors who wished to be married in the UK that are citizens 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 would not be able to accept the notice of marriage and would not be able to perform the marriage ceremony.
Visitors who are already in the UK, and are citizens of a country that is not a member of the EEA, would need the approval of the
From 4 April 2011, the requirement for a Certificate of Approval was abolished by the United Kingdom Parliament through a Remedial Order under the Human Rights Act 1998.
Divorce
Divorce is allowed under certain circumstances, as is civil remarriage, though different religions and denominations differ on whether they permit religious remarriage.
Same-sex marriage
On 4 February 2014, Scotland became the 17th country to permit marriage between same-sex individuals.[2] Since the Scottish Government had announced a consultation on legalising same-sex marriage in September 2011, the Government's initial view was stated to be in favour of legalisation of both civil and religious same-sex marriage, but allowing religious bodies to opt out of performing same-sex marriages if they so wished. As passed in 2014, the law establishing marriage equality in Scotland did not require religious institutions to hold ceremonies on their premises.
The consultation of 2011 provoked widespread debate and garnered 50,000 responses. The Equality Network gathered over 20,000 responses in favour of the change with a significant majority (18,500) submitted via the Equality Network's Equal Marriage consultation website.[18] Scotland For Marriage, a coalition of religious bodies opposed to the change, submitted around 20,000 postcards to the Scottish Government in addition to a 9,000 signature petition.[19][20]
After analysis of the responses, the Scottish Government announced it intended to go ahead with the legalisation of same-sex marriages, though with plans to put in safeguards to prevent religious bodies that do not wish to carry out such ceremonies from being prosecuted. They found that, of respondents in Scotland, 36% of those were in favour and 64% against the proposals when considering all submissions - standard responses, postcards and petitions. When standard responses alone were considered, 65% were in favour and 35% against the proposals.[21]
The Marriage and Civil Partnerships (Scotland) Bill was put before the Scottish Parliament at the end of June 2013 and passed in February 2014.[22]
See also
- Dorothea Christina Thomas
- Scots family law
- Civil partnership
- Marriage in England and Wales
- Marriage in Northern Ireland
References
- ^ "Scottish government launches gay marriage consultation". BBC News. 3 September 2011. Retrieved 20 January 2021.
- ^ a b "Scotland becomes 17th country to approve same-sex marriages". Reuters. 4 February 2014.
- ISBN 0199563691, p. 271.
- ISBN 0199563691, p. 272.
- ^ Probert, Rebecca, Marriage Law & Practice in the Long Eighteenth Century: A Reassessment (CUP, 2009) chapter 3
- ^ ISBN 0748614559, pp. 62-3.
- ISBN 0199563691, p. 270.
- ^ J. R. Gillis, For Better, For Worse, British marriages, 1600 to the Present, (Oxford: Oxford University Press, 1985), p. 56.
- ISBN 383091699X, 494.
- ISBN 0199563691, p. 274.
- ISBN 0199563691, p. 273.
- ^ "Irregular marriage and the kirk session in Scotland". ScotlandsPeople. 1 October 2021. Retrieved 3 October 2022.
- ^ Family Law (Scotland) Act 2006
- ^ See Black's Law Dictionary.
- ^ J. R. Gillis, For Better, For Worse, British marriages, 1600 to the Present, (Oxford: Oxford University Press, 1985), p. 195.
- ^ "UK | Scotland | Valentine's Day influx at Gretna". BBC News. 14 February 2006. Retrieved 20 January 2021.
- ^ "Archived copy" (PDF). nrscotland.gov.uk. Archived from the original (PDF) on 27 March 2015. Retrieved 13 January 2022.
{{cite web}}
: CS1 maint: archived copy as title (link) - ^ "Equal Marriage public consultation closes | Equal Marriage". www.equalmarriage.org.uk. Archived from the original on 22 February 2012. Retrieved 13 January 2022.
- ^ "Scotland for Marriage launched on St. Andrew's Day". Archived from the original on 26 April 2012. Retrieved 16 December 2011.
- ^ "Bogus names discovered on petition that attacked gay marriage - Politics - Scotsman.com". www.scotsman.com. Archived from the original on 7 January 2012. Retrieved 13 January 2022.
- ^ "Same sex marriage to be legalised". www.scotland.gov.uk. Archived from the original on 25 July 2012. Retrieved 13 January 2022.
- ^ "Scotland's same-sex marriage bill is passed". BBC News. 4 February 2014. Retrieved 20 January 2021.