Introduction
7.1 Most of the law on the constitution of marriage is statutory. 1 However, the law on marriage by cohabitation with habit and repute still depends on the common law. In the context of a proposed codification of family law the question therefore arises whether this form of marriage should be left to depend on the common law, put into statutory form, with or without changes, or abolished.
Present law
7.2 If a man and a woman who are free to marry each other cohabit as husband and wife in Scotland for a considerable time and are generally regarded as being husband and wife they are presumed to have consented to be married, even if only tacitly, and, if the presumption is not rebutted, will be held to be married by cohabitation with habit and repute. 2 Although the marriage results from the combination of mutual consent and the outward elements of cohabitation and repute, without the need for a court decree, in practice a court decree of declarator is sometimes necessary before third parties will accept that the requirements for this type of marriage have been met. There are never more than a few declarators of marriage by cohabitation with habit and repute per year. 3 Section 21 of the Marriage (Scotland) Act 1977 requires the principal clerk at the Court of Session to send to the Registrar General for Scotland details of any decree of declarator of marriage by cohabitation with habit and repute including "the date, as determined by the court, on which the marriage was constituted" so that the marriage can be registered. As a marriage by cohabitation with habit and repute exists independently of any court decree of declarator, it follows that third parties, such as the trustees of occupational pension funds, may choose to accept the evidence of a marriage without requiring a court decree to be obtained. 4 It also follows that there are, at any one time, a number of undeclared and unregistered marriages by cohabitation with habit and repute.
7.3 The law on marriage by cohabitation with habit and repute gives rise to a number of difficulties. First, what is a sufficient length of cohabitation? No firm answer can be given. It was stated in the Inner House in 1909 that a period of 10 months was not enough. 5 More recently, however, a period of 10 months and 23 days was accepted as sufficient in the Outer House. 6 Secondly, what is sufficient reputation? Again no firm answer can be given. The fact that a few people know that the cohabitants have never been regularly married will not necessarily prevent a marriage, 7 but the repute of marriage must be "substantially unvarying and consistent". 8 Thirdly, when will the presumption of tacit consent be rebutted? Clearly the presumption will be rebutted if both parties deny, credibly, that they ever intended to get married. 9 Indeed, as both parties must consent, it should be sufficient if one party denies ever having had matrimonial intent, provided that he or she is believed. 10 The presumption will also be rebutted if the parties believed throughout the period of cohabitation that one of them was married to someone else, even if, unknown to the parties, that marriage had ended by death or divorce. 11 In theory the presumption ought to be rebutted if the parties thought that a regular ceremony was necessary for marriage and intended to go through such a ceremony at some time in the future. 12 In practice, however, judges have sometimes been prepared to hold a marriage by cohabitation with habit and repute established in this type of case.13 The presumption of tacit consent may also be held to be rebutted by evidence of the bad terms on which the parties lived together.14 There may, of course, be other situations where the presumption will be rebutted: it is all a question of evidence. A further problem is that of fixing the date of the marriage. There are cases and dicta which tend to push the date of the marriage back to the earliest possible date-for example, the date when cohabitation began or when an impediment to the marriage is removed-but, as a matter of logic, it seems odd to regard a marriage as constituted before the requirements for it (including a sufficient period of cohabitation in Scotland while the parties are free to marry) have been fulfilled.15
7.4 As a way of getting married, marriage by cohabitation with habit and repute has little to commend it. It is inherently vague and unregulated and causes difficulty and expense at a later stage. In reality this type of marriage is a way of conferring rights on some cohabitants, usually after the death of the other party to the relationship. It is as a protective mechanism for cohabitants that it must be judged.
7.5 One criticism of marriage by cohabitation with habit and repute as a protective mechanism for cohabitants is that it is not available to couples who have lived together without ever pretending to be married or acquiring the reputation of being married. This type of open cohabitation is increasingly common nowadays. 16 Whatever its merits as a protective mechanism in the past, marriage by cohabitation with habit and repute is an inadequate, and statistically insignificant, protection for cohabitants in the conditions now prevailing.
7.6 A second criticism of marriage by cohabitation with habit and repute as a protection for cohabitants is that, even among those who have had the reputation of being married, it operates in a capricious way because of the vagueness and uncertainty of the law and the emphasis on tacit consent. A cohabitant may lose protection simply because the couple were unaware that the man's prior marriage had been ended by divorce and continued to believe, throughout the period of cohabitation, that he was still married to his first wife. A person who thinks he is married to X cannot tacitly consent to marry Y. Much may depend on how a surviving cohabitant answers questions about the couple's attitude to a regular marriage. If he or she says "We intended to get married in a registrar's office but kept putting it off" it could be difficult, from a strictly logical point of view, to hold that there was a tacit consent to marriage. 17 An intention to get married in the future seems inconsistent with regarding oneself as married now.
7.7 A third, and possibly the most serious, criticism of marriage by cohabitation with habit and repute as a protective device is that it creates uncertainty and endangers subsequent regular marriages. It seems likely that in many cases of marriage by this method the couple never regard themselves as married at all, and that the idea of marriage first presents itself when the survivor consults a solicitor after the death of the other partner. People who do not think they are married do not think they need a divorce when they separate. The device of holding a couple to be actually married by cohabitation with habit and repute is therefore potentially dangerous. They may split up. One of them may marry someone else. That marriage will always be at risk from an attempt by the former cohabitant to establish a marriage by cohabitation with habit and repute. A woman could lose all her succession rights on the death of the man to whom she thought she had been married because another woman with whom her "husband" had formerly cohabited establishes a marriage by cohabitation with habit and repute.
Results of consultation
7.8 In the discussion paper we invited views on three options:
(1) retention unchanged,
(2) retention with changes (for example, specification of a minimum period of cohabitation) and
(3) abolition.
Most of those who commented on this question supported abolition. The criticisms of the existing law-vagueness, uncertainty, arbitrariness, illogicality, discrimination against open and honest cohabitation, difficulties caused by not knowing whether there is or is not a marriage-were accepted and reinforced by further examples. There was hardly any support for the option of retaining but reforming the law on marriage by cohabitation with habit and repute. The few who supported retention generally did so on the footing that it would be premature to abolish this form of marriage until there had been some reform of the rights of cohabitants generally in private law. We deal with this topic later.18 The results of consultation confirm, us in our view that this form of marriage is an archaism and should be abolished for the future-although. that should not affect any marriage already constituted by tacit consent coupled with the requisite cohabitation and repute before the date of commencement of the new legislation, even if no declarator had been obtained by the date of commencement.
Recommendation
42.(a) Marriage by cohabitation with habit and repute should be abolished as from the date of commencement of implementing legislation.
(b) Accordingly, it should no longer be possible to contract such a marriage after that date, but this would be without prejudice to the validity of any such marriage already contracted before that date (whether or not a declarator of marriage had been obtained).
(Draft Bill, clause 22.)
7. 10 It is perhaps worth pointing out that abolition of marriages by cohabitation with habit and repute would have little or no effect on the legal position of children which, under Scots law, is generally exactly the same whether or not their parents are, or have been, married to each other. 19 The children of a cohabiting couple have, for example, the same rights of aliment against both parents, and the same rights of succession in relation to both parents and other relatives, as if the parents were married to each other. So far as social, as opposed to legal, effects are concerned, it seems doubtful whether there would be any social advantages for children in a marriage by cohabitation with habit and repute. If the parents have successfully passed themselves off as married in their community then the children probably stand to lose rather than gain by any embarrassing disclosures made in an action for declarator of marriage. If the parents have not successfully passed themselves off as married in their community then there is little hope of establishing a marriage by cohabitation with habit and repute.
7. 11 It is also worth pointing out that abolition of this form of marriage would not affect any evidential value which long cohabitation and a reputation of being married may have in, for example, raising a presumption that a couple were married in a foreign ceremony of which records have not survived. 20
7.12 In the past marriage by cohabitation with habit and repute has sometimes proved useful as a way of, in effect, validating void marriages. However, there is now express statutory provision for the validation of marriages in Scotland which would otherwise be void because of some formal defect, such as failure to give adequate notice. 21 Moreover, a court granting a declarator of nullity now has the same powers to make orders for financial provision as a court granting a decree of divorce. 22 If the invalidity of a long and apparently regular marriage comes to light only on the death of one of the partners then the other would have the right, if recommendations made later in this report are implemented, to apply as a cohabitant for a provision out of the deceased's estate and, in such circumstances, could expect a generous provision. 23
7.13 Finally, we should note that there is an argument that the abolition of marriage by cohabitation with habit and repute would leave in existence an innominate class of irregular marriage by tacit consent 24 inferred from circumstances other than promise subsequente copula 25 or cohabitation with habit and repute. 26 We express no view on the merits of this argument. If it is correct, the need for reform of the law on irregular marriages is even greater than we had supposed. Clause 21 of the draft Bill (which lays down certain formal requirements for any marriage entered into in Scotland after the new legislation comes into force) should prevent this argument from causing difficulty in the future.