Introduction
8.1, We deal with private international law questions relating to marriage later. 1 In this part of the report, therefore, it is assumed that there are no foreign aspects to complicate matters: the marriage in question is celebrated in Scotland between parties who are domiciled in Scotland.
8.2 Some rules on nullity of marriage are already in statutory form in Scotland. Section 1(2) of the Marriage (Scotland) Act 1977 provides that a marriage is void if either party is under the age of 16 and section 2 provides that a marriage is void if the parties are within the prohibited degrees of relationship laid down in the Act. Section 23A of the same Act provides that the validity of certain marriages is not to be questioned on the ground of certain formal defects. 2 However, most of the rules on nullity of marriage still depend on the common law. One of the early reports of the English Law Commission was on nullity of marriage 3 and it led to the Nullity of Marriage Act 1971 (now consolidated in the Matrimonial Causes Act 1973). We have not engaged in a similar law reform project on nullity of marriage until now because it did not seem to us that it was of high priority. Problems are very infrequent in practice. However, a proposed codification makes it necessary to consider putting the existing law into statutory form. This provides a useful opportunity to reform some aspects of the present law-notably the law on sham marriages and the law on nullity for impotency-which are unsatisfactory. For the rest, not much more is envisaged than a restatement, with clarification of doubtful points where appropriate, of the existing common law. The proposals which we made, to this end, in the discussion paper proved uncontroversial.
8.3 All that is required here is an enactment in statutory form of the existing rule of law that a marriage is void if either party to it is, at the time of the marriage, already married. As we have noted, we deal with private international law questions later. 4 We recommend therefore that
43. It should continue to be a ground of nullity of marriage that either party is at the time of the marriage already married.
(Draft Bill., clauses 20 and 21(1).)
Nonage
8.4 We are assuming for present purposes that the policy on the minimum age for marriage is unchanged since the Marriage (Scotland) Act 1977 was enacted. On this basis all that is required is a re-enactment of the existing rule that a marriage is void if either of the parties is. at the time of the marriage, under the age of 16. We recommend therefore that
44. It should continue to be a ground of nullity of marriage that either party is, at the time of the marriage, under the age of 16.
(Draft Bill, clauses 20 and 21(1).)
8.5 In the discussion paper we made the assumption that public policy in this country on the question of same-sex marriages was unchanged since the enactment of the Marriage (Scotland) Act 1977. section 5(4)(e) of which provides that there is a legal impediment to a marriage if both parties are of the same sex. Few of our respondents questioned this assumption. However, one or two suggested that the law should be changed so as to allow marriage between persons of the same sex. One or two others thought that this was a question which might have to be re-examined in the future but did not advocate change at the present time. Since the discussion paper was published, the question whether a genetically male transsexual, living life socially, physically and psychologically as a woman, has a right under the European Convention on Human Rights to marry a man has been considered by the European Court of Human Rights. 5 The court by a majority of 14 to 4 held that the denial by English law of such a right was not a violation of article 12 of the Convention (right to marry). Article 12 referred to the traditional concept of marriage between persons of opposite biological sex. 6 A dissenting opinion pointed out that several European states had acknowledged, subject to certain conditions, the right of a transsexual to marry. someone of the opposite social sex but same biological sex. A transsexual who had undergone gender reassignment surgery, as the applicant had in this case, had no realistic possibility of marrying someone of the opposite biological sex and the only humane solution was to allow marriage with someone of the opposite social sex. This case gave rise to a good deal of comment in the media, much of it sympathetic to the case for same-sex marriages, at least where genuine transsexuals are concerned. We have some sympathy with the view that the existing law can operate in an inhumane way in certain situations and we agree with those consultees who suggested that this was a topic which might merit further consideration at some time in the future. However, we would clearly not be justified in recommending any change in the law on such a highly controversial matter in this report. We therefore recommend that, at least for the time being
45. It should continue to be a ground of nullity of marriage that both parties are of the same sex.
(Draft Bill, clauses 20 and 21(1).)
Prohibited degrees of relationship
8.6 The Marriage (Scotland) Act 1977 provides that a marriage is void if the parties are within the prohibited degrees of relationship set out in the Act. 7 In the case of blood relationships this means that a person cannot marry his or her parent, grandparent, or great-grandparent; child, grandchild or great-grandchild; brother or sister; uncle, aunt, nephew or niece. 8 We do not suggest any change in these rules.
8.7 In the case of relationships by marriage the only restrictions are on marriage with a former spouse's child, grandchild or parent, 9 and even in these cases the law was relaxed in 1986. 10 In the case of a former spouse's child or grandchild, marriage is now permitted provided that both parties are at least 21 years of age at the time of the marriage and
"the younger party has not at any time before attaining the age of 18 lived in the same household as the other party and been treated by the other party as a child of his family. 11
Whether this restriction is necessary or desirable is a question on which different views could be held, but it is not manifestly unreasonable and, as the law was reformed as recently as 1986, we do not think that this would be an appropriate time to re-open debate on this issue. In the case of a former spouse's parent, marriage is now permitted provided that both parties have attained the age of 21 and the marriage is solemnised
(a) in the case of a man marrying the mother of a former wife of his, after the death of both the former wife and the former wife's father;
(b) in the case of a man marrying a former wife of his son, after the death of both his son and his son's mother;
(c) in the case of a woman marrying the father of a former husband of hers, after the death of both the former husband and the former husband's mother;
(d) in the case of a woman marrying a former husband of her daughter, after the death of both her daughter and her daughter's father. 12
These restrictions seem odd and unreasonable. As we were beginning work on our discussion paper we were referred by a Member of Parliament to a case involving a constituent of his, where the restrictions had caused difficulty and distress.
8.8 The case involved a woman who divorced her husband and obtained custody of the children of the marriage. She was greatly supported in looking after the children by her former husband's father and mother. She in turn provided support when her ex-mother-in-law became ill. Some time after the death of the ex-mother-in-law the woman and her former husband's father decided they would like to marry each other but found that they could not because the woman's former husband was still alive. Section 2(1B) of the Marriage (Scotland) Act 1977 provides, as we have seen, that a marriage between a woman and the father of a former husband is permissible only
"after the death of both the former husband and the former husband's mother."
8.9 Other cases where the restrictions in section 2(1B) might seem even more unreasonable can readily be imagined. Suppose that a man aged 40 marries a woman aged 25 who has never known her father. The wife is killed in a road accident and, some time later, the man and his former wife's mother, who is closer to his own age, want to get married. Why should it matter whether the former wife's father, who might not even know that she ever existed, is alive or dead? What is the point of this restriction on a marriage between two people who are both unmarried and unrelated by blood? Or suppose that a man divorced his wife in 1970. She remarried and went to live in London, taking the son of the marriage with her. In 1977 the son married. He continued to live in London and saw very little of his father. In 1980 the son and his wife were divorced. In 1983 the son's former wife moved to Scotland. She and her former father-in-law began to see more of each other. They would now like to marry each other. Why should they have to wait until both of their former spouses are dead?
8. 10 It is worth noting that a person can marry his or her former cohabitant's parent, without restriction. It is also worth noting that sexual intercourse between a person and the parent of his or her former spouse is not incest, so that in all the examples given the couple could cohabit as husband and wife without committing any offence. All that the law does is to prevent them from marrying each other.
8.11 Section 2(1B) is the result of an amendment introduced at the report stage in the House of Lords, at a time when the Bill in question did not yet extend to Scotland. 13 It was a compromise amendment designed to meet objections which had resulted iii the defeat of an earlier proposal to allow people to marry the parent of a former spouse. The reasons for the rejection of the earlier proposal were that to allow such marriages
"would endanger roles within the family and would open up possible erotic overtones." 14
The type of case which concerned the objectors was explained by Lord Meston as follows. 15
"One can take a typical example. A young, couple marry. They may go to live with the parents of, say, the young husband. There may be a weak, immature perhaps teenage daughter-in-law who may be very vulnerable to the influence of her father-in-law. There is a situation of proximity and dependency. If a relationship did develop between the young husband's wife and his father, there are two subsisting marriages which potentially would be ended by divorce. "
The question which must be asked is whether the prohibition in section 2(1B) is likely to prevent this type of situation. Are the parties likely to know the law at the time when an attachment is developing? Even if they do, is that likely to prevent the attachment developing further? It must also be asked why this situation, unfortunate and distressing though it may be, is regarded as so much worse than any other situation in which an attraction between two married people results in the break-up of the two families? Why does the parent-in-law relationship itself justify a restriction? Would the situation be so much less distressful if the younger man were the older man's foster son or brother or nephew or business partner or close friend? Would it be so much less distressful if the young woman were the son's cohabitant rather than his wife?
8.12 These issues were considered in the report entitled No Just Cause by a group appointed by the Archbishop of Canterbury to look into the law of affinity in England and Wales. 16 A majority of the group's members referred to the fear that the removal of prohibitions might encourage the formation of attachments between parents-in-law and their sons-in-law or daughters-in-law, but did not feel that the law could prevent such cases arising. They pointed out that similar fears had been expressed in relation to the removal of earlier prohibitions, such as the former prohibition of marriage with the brother or, sister of a former spouse, but that there was no evidence to suggest that the removal of these prohibitions had had any ill effects. 17 They did not accept that the removal of the remaining prohibitions on marriage with former in-laws would tend to undermine the family. 18 They thought that marriages between former in laws would in practice be rare and that most people, particularly those with religious objections to them, might still prefer to avoid them but that this was not a reasonable argument for prohibiting the lawful marriage of such former in-laws as did wish to marry. 19 They concluded that the prohibition was based simply on tradition and could not now be justified on any logical, rational or practical ground. 20 The experience of other states where there had never been such a prohibition provided a strong and persuasive argument for abolishing the impediment. 21 A minority of the group recommended that the existing legal impediments to marriage between parent-in-law and children-in-law should not be removed. 22 They said that to allow such marriages would be
"to condone sexual rivalry between father and son, or mother and daughter, which, within the close confines of the family, would be destructive of the father and son, or mother and daughter, relationships. 23
In addition, it would deprive the child-in-law of his or her safety of place as child in the new family into which he or she marries. When, for instance, a son brings his wife to his father's home, there is an underlying assumption that the daughter-in-law will assume a role in relation to her father-in-law which is exempt from sexual expectations. To admit the possibility of a future marriage between parent-in-law and child-in-law would be to undermine assumptions which make for the safety and comfort of the adult family. 24
These arguments are very similar to the arguments which were made many years ago against marriage with a deceased wife's sister. They seem to us to be just as unrealistic and just as unsupported by anything in the way of evidence. The picture of sexual rivalry painted by the minority seems to us to be far removed from the ordinary decencies of family life in this country, and far removed, for example, from the actual constituency case referred to earlier. The idea that women visiting their fathers-in-law are passive creatures who need the protection of a provision in the Marriage (Scotland) Act 1977 to give them "safety of place" and "a role which is exempt from sexual expectations" strikes us as unconvincing. The minority's arguments would seem to lead to an outright prohibition of marriage with a former parent-in-law and that is what they actually recommended. They did concede, however, that there were not such strong. objections to a marriage between a parent-in-law and a child-in-law if the intervening spouse 25 were dead
"for then our concern about disruption within the immediate family circle would lose some of its immediate force." 26
As we have seen, it was a compromise solution on these lines which was adopted in the Marriage (Prohibited Degrees of Relationship) Bill for England and Wales and which was later extended to Scotland when the Bill was amended to include Scottish clauses.
8.13 It is not satisfactory that Scots law should be based on the unconvincing arguments of a minority of a group appointed by the Archbishop of Canterbury to consider the law of affinity in England and Wales. We concluded in the discussion paper that this question deserved to be properly discussed in Scotland. Our preliminary view was that the restrictions presently in section 2(1B) of the Marriage (Scotland) Act 1977 led to anomalies and results which could not be justified by any reasonable argument. We therefore suggested the removal of the few remaining restrictions on marriage between a person and the parent of his or her former spouse. This suggestion' was supported by a majority of those who commented on it. Some consultees thought that it was desirable that the prohibited degrees of relationship should be the same for marriage and for incest and, as it is not incest to have intercourse with a former parent-inlaw, favoured removal of the remaining restrictions for this reason. The minority who opposed any change did so for various reasons. Some appealed to the statement of forbidden degrees in the Old Testament. However, the biblical degrees were departed from in 1907 when marriage with a deceased wife's sister was permitted and we do not think that there can be any question of going back to them. In any event, so far as the civil law is concerned, this, is a question which has to be decided, for all citizens whatever their religious views, by reference to social considerations. People who have religious objections to ' particular types of marriage do not need to enter into them. One group of consultees thought that the Scottish law on this subject should remain the same as English law. We do not see, however, why that need be so. There would be no practical difficulties or inconveniences in having different laws on this rather esoteric point. 27 Another group expressed concern about pressures on children. We do not see, however, why children should be prejudiced by the regularisation, through marriage, of an affectionate and supportive relationship which already exists. We do not think it likely that a step-parent who already has a close family relationship with his or her step children will necessarily be worse for the children than an unrelated step-parent with no such relationship. Nor do we see why children should be prejudiced by the dual roles which result from such marriages. Adoption by grandparents is not uncommon and gives rise to similar dual roles. Moreover such dual roles can arise under the existing marriage law in those cases where the very limited restrictions on marriages with the relatives of a former spouse do not apply (eg marriage with former husband's brother, or deceased husband's widowed father). No-one, so far as we know, has suggested that they cause any problems. Most importantly, we think that there is a danger of being excessively paternalistic in this area. Parents are not generally unmindful of the interests of their own children. Finally, the number of marriages which would result from the removal of the remaining restrictions would be likely to be very small indeed and the number of such marriages where there are minor children even smaller. Our conclusion is that the remaining restrictions on marriage with the parent of a former spouse should be abolished. We can see no need for confining this change to persons over the age of 21. Both parties, in the type of case we are considering, will inevitably be old enough to have had at least one former marriage. We therefore recommend that
46. It should continue to be a ground of nullity of marriage that the parties are within the prohibited degrees of relationship specified in the Marriage (Scotland) Act 1977, subject, however, to the removal of the remaining limited restrictions on marriage between a person and the parent of his or her former spouse. Accordingly, the distinction between marriage with a deceased spouse's widowed parent (which is permitted under the present law) and other marriages with a former spouse's parent (which are not permitted) should no longer be part of Scots law..
(Draft Bill, clauses 20, 21(1) and Schedule 2.)
Non-compliance with formal requirements
8.14 Most marriages in Scotland are now immune from challenge on the ground of non-compliance with formal requirements. This is the result of section 23A of the Marriage (Scotland) Act 1977 (added in 1980) 28 which provides that, subject to the provisions in the Act on under-age marriages and marriages within the prohibited degrees,
"where the particulars of any marriage at the ceremony in respect of which both parties were present are entered in a register of marriages by or at the behest of an appropriate registrar, the validity of that marriage shall not be questioned, in any legal proceedings whatsoever, on the ground of failure to comply with a requirement or restriction imposed by, under or by virtue of this Act." 29
This is a very useful provision. We think, however, that it should be widened in two respects. First, it should be applied to non-compliance with formal requirements under earlier laws (provided that there had not already been a decree of declarator of nullity in respect of the marriage in. question or a later marriage to someone else in reliance on the nullity of the first marriage) and, secondly, it 'Should provide that the marriage in question is not invalid rather than that its validity "shall not be questioned". The latter formula suggests that the marriage might actually be invalid but that there is a sort of procedural bar to raising this question. We recommend that
47.(a) There should continue to be a rule on the lines of section. 23A of the Marriage (Scotland) Act 1977, to the effect that a duly registered marriage, where. both parties were present at the ceremony, is not invalid by reason only of any failure to comply with any legal preliminaries or formal requirements or by reason of any lack of qualification on the part of the celebrant. This rule should extend to marriages in Scotland solemnised before as well as after the commencement of the new legislation, but a marriage solemnised before such commencement should not be validated in this way if it had already, before such commencement, been declared void by a competent court or followed by an' other marriage in reliance on its nullity.
(Draft Bill, clause 21(5) and (7).)
8.15 There are some formalities which are not serious enough to warrant invalidity (even of a type curable by registration) if they are not complied with. They are not essential formalities. A marriage should not be void, for example, merely because one of the parties gave wrong information to a registrar when giving notice of intention to marry. 30 Similarly, failure to produce a birth certificate or one of the other documents referred to in section 3(1) of
the Marriage (Scotland) Act 1977 should not invalidate the marriage if, through inadvertence, the district registrar overlooks the omission and completes a marriage schedule. Also, a mere failure to register a marriage in time should not in itself be a ground of nullity. We think that it would be useful in new legislation to make it clear that only failures to comply with the more important formal requirements result in nullity. The sanction for non-compliance with other formalities may be simply refusal of administrative co-operation-the registrar will not complete a marriage schedule if the required documents are not produced or, in some cases, a criminal penalty. 31 After consulting the Registrar General for Scotland on this question, we suggest that those formal requirements which can be regarded as essential (subject to cure in some cases by registration) are
(a) the giving of notice of intention to marry
(b) the production to the approved celebrant, or availability to an authorised registrar, of a marriage schedule in respect of the marriage as required by section 13(1)(a) and 19(2)(a) respectively of the Marriage (Scotland) Act 1977
(c) the presence of both parties at the ceremony
(d) the presence as witnesses of two persons professing to be 16 years of age or over
(e) the presence of an authorised or legally recognised celebrant and
(f) the outward exchange by the parties of present consent to marriage.
These formal requirements would apply only in relation to marriages entered into in Scotland and the new express ground of nullity would not be retrospective. It is not our intention to invalidate any irregular marriages entered into in Scotland at a period when such marriages were possible. The formal validity of marriages entered into outside Scotland would be governed by the law of the place of celebration. 32 Failure of a marriage ceremony to comply with any of these requirements except that relating to the presence of the parties would be curable by due registration. So, for example, once the marriage had been duly registered it could not be challenged on the ground that the celebrant was unauthorised. We recommend that
47.(b) In the case of a marriage in Scotland, the essential formal requirements (subject to the validating rule in recommendation 47.(a)) should be
(i) the giving of notice of intention to marry
(ii) the production to the approved celebrant, or availability to an authorised registrar, of a marriage schedule in respect of the marriage as required by section 13(1)(a) and 19(2)(a) respectively of the Marriage (Scotland) Act 1977
(iii) the presence of both parties at the ceremony
(iv) the presence as witnesses of two persons professing to be 16 years of age or over
(v) the presence of an authorised or legally recognised celebrant and
(vi) the outward exchange by the parties of present consent to marriage.
(Draft Bill, clause 21(1)(c).)
8.16 A marriage is void in Scots law if either party is incapable of understanding the nature of marriage or of consenting to marriage; or if either party is in error as to the nature of the ceremony or the identity of the other party; or if either party was forced against his or her will to/marry the other party. 33 In all of these case's it is probably necessary for the validity of the marriage to be challenged as soon as is reasonably practicable after the incapacity (if temporary) has disappeared, or the error has been discovered, or the source of the duress has been removed. 34 The law to this effect is, however, not clear. There is a lack of modern authority. We consider that the substance of the above rules is reasonably satisfactory. There is, so far as we are aware, no evidence that the law in this area gives rise to any difficulty or injustice. The ready availability of divorce as a remedy for marriage breakdown means that there is little need for the law of nullity to provide a remedy in a wide range of cases. This being so, there is in our view much to be said for keeping that law within its existing narrow bounds.
8.17 A marriage is also void in Scots law if the parties, even although consenting freely to go through a marriage ceremony and in no error, had at the time of the ceremony a mental reservation to the effect that a legal marriage would not result from the ceremony. For example, the parties may have tacitly withheld consent to be married by a civil ceremony because they believed a religious ceremony to be essential for their religious purposes, or because they were going through the ceremony merely for immigration purposes. 35 Although this rule is consistent with the traditional view that true consent, and not merely the external appearance of consent, is essential for the constitution of marriage it is open to the objection that it allows parties to use the Scottish marriage law and Scottish marriage ceremonies cynically for their own purposes. In the case of Akram v Akram 36 Lord Dunpark was clearly unhappy with the state of the present law but was forced to grant the decree of declarator of nullity sought. He said that it was for Parliament to decide
"whether legislation should preclude parties from challenging the legal effect of any formal ceremony of marriage 37 on the ground that they knowingly but tacitly withheld their true consent to marriage."
Scots law seems to be peculiarly generous in relation to such sham marriages. In England and Wales secret mental reservations have no effect. 38 The Canadian courts have generally taken the same view. 39
8.18 Although there is authority for the view that one party will not be allowed to found on his own unilateral mental reservation of matrimonial consent, 40 the existing law of Scotland allows one party to a marriage to have it declared null on the ground that the other party did not really intend to get married. 41 This can give rise to some remarkable results if, for example, a man wrongly believes that he is committing bigamy when in fact his prior marriage has been dissolved by divorce. His second marriage, although not bigamous, can nonetheless be declared void because he thought it was bigamous and could not therefore have given true consent. 42
8.19 It seems to us that it is undesirable to allow parties, who know full well what they are doing, to determine for themselves the legal effects which will follow from participation in a formal legal ceremony of marriage. In our view this is a matter for the law to determine. This view was supported almost unanimously on consultation. We recommend therefore that tacit mental reservations as to the legal effects of a marriage ceremony should have no effect. The draft Bill achieves this result by setting out the only grounds of nullity and by not including tacit mental reservations among them. 43
8.20 Our combined recommendations on defects in consent as grounds for nullity are as follows.
48.(a) Subject to the subsidiary rules suggested below, a marriage should be void if, because of mental incapacity, error, or duress either party does not freely consent to marry the other party.
(b) (i) A marriage should be void on the ground of a party's mental incapacity, whether temporary or permanent, only if the party is at the time of the marriage ceremony incapable of understanding the nature of marriage or of giving consent to marriage.
(ii) Where a person was under a temporary mental incapacity at the time of the marriage ceremony but does not bring an action for declaration of nullity of marriage as soon as is reasonably practicable after regaining capacity the marriage should be regarded as having been valid as from the time of the ceremony.
(c) (i) A marriage should be void on the ground of error only if at the time of the ceremony either party was in error as to the nature of the ceremony or the identity of the other party.
(ii) A party should be regarded as being in error as to the identity of the other party only if he or she mistakenly believed that the other party at the ceremony was the person whom he or she had agreed to marry, regardless of the name or qualities of that person.
(iii) Where a person was in error as to the nature of the ceremony or the identity of the other party to the marriage but does not bring an action for declarator of nullity of marriage as soon as is reasonably practicable after discovering the error the marriage should be regarded as having been valid as from the time of the ceremony.
(d) (i) A marriage should be void on the ground of duress only if one party was forced against his or her will to marry the other party.
(ii) Where a person was forced against his or her will to marry the other party but does not bring an action for declarator of nullity of marriage as soon as is reasonably practicable after the duress ceases to have effect *the marriage should be regarded as having been valid as from the time of the ceremony.
(e) Without prejudice to the rules recommended above, a marriage should not be void merely because one or both parties went through the ceremony of marriage with a tacit mental reservation to the effect that notwithstanding the nature and form of the ceremony no legal marriage would result from it.
(Draft Bill, clause 21(1)(b) and (2).)
8.21 Under the existing law Scotland a marriage is voidable if either party is at the time of the ceremony permanently and incurably impotent in relation to the other spouse. 44 A person can found on his or her own impotency. 45 This is the only ground on which a marriage is voidable, as opposed to void, in Scots law. 46
8.22 The idea of a voidable marriage, which is perfectly valid until declared void by a court but which is then regarded as having been void from the beginning, leads to difficulty. What, for example, is the position if one of the parties entered into a second marriage before the declarator of nullity was granted? Is the second marriage retrospectively validated when the first is declared void? There is no clear answer to this problem in Scots law. 47 It is a question of whether logic or commonsense is to prevail. What is the effect of a declarator of nullity on the ground of impotency on other transactions which turned on the existence of a valid marriage and which were entered into while the marriage was valid? Are completed transactions to be retrospectively disturbed? Again there is a lack of certainty on this point in Scots law, although it seems likely that the artificial theory of retroactive nullity would not be pushed to its logical conclusion where this would lead to absurdity or interference with completed transactions 48
8.23 In English law a decree of nullity in respect of a voidable marriage now has prospective effect only. It operates
"to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it has existed up to that time." 49
The view that a separate category of voidable marriage is necessary or desirable in English law has been subjected to cogent criticism. 50
8.24 Proof of incurable impotency generally requires medical evidence. The courts assess
incurability in the light of the circumstances of the particular marriage, and will not regard impotency as curable merely because in other hypothetical circumstances it might have responded to treatment. 51 A pursuer may, in certain circumstances, be personally barred from founding on impotency (whether his or her own, or the other spouse's) in order to obtain a declarator of nullity. 52
8.25 There are not now many actions for declarator of nullity on the ground of impotency. Divorce on one of the separation grounds will often be a simpler and more acceptable remedy for the spouses. The Civil Judicial Statistics for Scotland since 1979 reveal an average of 8 actions for declarator of nullity of marriage a year. Even if all of these are on the ground of impotency the number is still very low.
8.26 The question for consideration is whether nullity for impotency is worth retaining in a new codified family law. Our view is that it is not. The notion of the valid but retrospectively voidable marriage. is very odd and leads to unnecessary difficulties. There would not be much point in amending the law to provide that a declarator of nullity for impotency dissolves a marriage only for the future. That would simply be divorce by another, and singularly inappropriate, name. Given the availability of non-fault divorce on the basis of a reasonably short period of separation, it must be open to doubt whether a special ground of so-called nullity of this nature would be justifiable. 53 There are various serious personal inadequacies, which may be present at the time of a marriage, and which may unfortunately cause it to break down irretrievably. We are not convinced that there is sufficient justification for singling this one out for special treatment. If a marriage survives serious difficulties, whether sexual or otherwise, then well and good. If it does not, and breaks down irretrievably, then there is a remedy in divorce. Moreover the ground of impotency invites the drawing of distinctions which seem meaningless from the point of view of the viability of a marriage. Why should it matter whether impotency was present at the time of the marriage 1or supervened a week later? If the sexual side of a marriage has been unsatisfactory from the start, is any good purpose served by a careful consideration of whether a person was capable on one or two occasions of sufficiently complete intercourse for legal purposes or only of insufficiently complete intercourse for such purposes? 54 Why should incapacity for sexual intercourse make a marriage voidable but not a deliberate refusal to attempt sexual intercourse? 55 Why should a woman who marries an impotent man, not knowing of his impotency, be able to obtain a declarator of nullity but a woman who marries a sterile man, not knowing of his sterility, be unable to do so? In either case, if she accepts the position she does not need a legal remedy while if she cannot accept the position and the marriage breaks down irretrievably she has the remedy of divorce. The only reason for the distinctions presently drawn by the law on voidable marriages is, we think, tradition. 56 They make no sense today.
8.27 We have considered whether, if impotency were no longer recognised as a ground on which a marriage is voidable, it ought to be added to the Divorce (Scotland) Act 1976 as one of the facts from which the irretrievable breakdown of a marriage may be inferred. The argument for this is that it would provide the possibility of an immediate divorce. The party who wished to have the marriage dissolved would not have to wait for a period of years, after the parties had separated, before raising an action. 57 There, are also, however, arguments against special provision for impotency. First, impotency by itself is not necessarily an indication of marriage breakdown. Both parties may have known the position at the time of the marriage. The marriage may have been entered into for companionship only. The pursuer may have accepted the position for many years. At the very least, therefore, the law on divorce for impotency would have to provide for certain additional bars to divorce. Secondly, the new ground would apply to only a few cases a year. In recent years there have only been about 8 declarators of nullity a year in Scotland. It must be doubtful whether a special new ground for divorce should be enacted to cater for such a small number of cases, particularly as there would usually be no great hardship involved in waiting for a year or two. Thirdly, a new ground of divorce for impotency would involve making arbitrary distinctions of the type criticised above. Why distinguish between impotency at the time of marriage and impotency occurring later? Why distinguish between impotency and near-impotency? Why allow divorce for impotency but not sterility or incurable disease or severe drug addiction or a serious personality defect or any other condition which might make it more difficult for both parties to achieve a fully satisfying marriage? We are not persuaded that there is an overwhelming case for making special provision for impotency as a fact justifying divorce but this is an option which could be borne in mind if, contrary to our recommendation, there is no reduction in the length of the separation periods required for a non-fault divorce.
8.28 A majority of those who responded to this question in the discussion paper agreed with our provisional assessment that it was no longer necessary or desirable to retain impotency as a ground on which a marriage is voidable. The general view was that, in cases of marriage breakdown, divorce was a more satisfactory and logically defensible civil remedy than either retrospective or prospective nullity for impotency. It was regarded as undesirable to focus narrowly on the one' question of sexual impotency at the date of the marriage in determining whether a remedy should be available.
"It is recognised that a marriage may be entered, or may continue, without a sexual relationship being a factor. The crucial factor in whether a marriage should be brought to an end should be whether there has been a breakdown of the relationship, whether or not impotency is an aspect of such breakdown. It would seem particularly anomalous to retain the rule at a time when, owing to the development of modern technology, it is possible to have children of a marriage notwithstanding that one partner is impotent." 58
Of those few consultees who favoured retaining impotency as a ground on which a marriage is voidable, two referred to opposition to divorce on religious grounds '. We do not believe, however, that the ordinary law of the land on the remedies available to all, for purely civil purposes, in cases of marriage breakdown ought to be determined by the views of any particular religion. From a civil law point of view we can see no advantages, but several disadvantages, in calling a decree dissolving a valid marriage which has unfortunately broken down a decree of nullity rather than a decree of divorce.
8.29 We recommend that
49. Marriages should not be voidable on the ground of impotency..
(Draft Bill, clause 21(8).)
Voidable marriages-other possible grounds
8.30 It will be clear from what we have said above that we regard the concept of the valid but retrospectively voidable marriage as thoroughly unsatisfactory and that we regard the conferring of the name "nullity" on. a decree which dissolves a valid marriage for the future as an inappropriate use of words. The provisional proposal in the discussion paper that there should be no new grounds on which a marriage is voidable in Scots law was agreed to unanimously by those who commented on it. We therefore recommend that
50. There should be no new grounds on which a marriage is voidable in Scots law.
8.31 If the two preceding recommendations are implemented the result would be that the concept of the voidable marriage would disappear from Scots law. That would in itself be a simplification and it would also help to resolve in a clear and simple way some problems in private international law which have caused difficulty in the past. 59
Consequential changes to Marriage (Scotland) Act 1977
8.32 At present some of the provisions of the Marriage (Scotland) Act 1977 relate partly to prohibitions of certain marriages and partly to grounds of nullity. For example, section 1 provides that
(1) No person domiciled in Scotland may marry before he attains the age of 16.
(2) A marriage solemnised in Scotland between persons either of whom is under the age of 16 shall be void."
The first subsection is a prohibition, directed to the individuals potentially concerned. The second subsection lays down a rule of nullity. It is, as it were, addressed to the courts and legal advisers who have to decide on the validity of a marriage after the event. Section 2 of the 1977 Act contains nullity rules for marriages of people within the prohibited degrees of relationship. The actual prohibition comes later, in section 5, where the impediments to a regular marriage in Scotland are listed. If the grounds of nullity of marriage, of which some are in the 1977 Act and some are in the common law, are comprehensively set out in a new statutory provision then some consequential changes in the 1977 Act will be required. That Act should, in our view, be confined to the prospective situation, but should not deal with nullity. It should, as it were, be addressed to citizens contemplating marriage and to the marriage officials but not to the courts hearing actions for declarator of nullity. It should also, we think, set out comprehensively at the beginning of the Act all the legal impediments to an intended marriage in Scotland and all the cases where a person domiciled in Scotland is legally incapable of marrying outside Scotland. Clause 20 of the draft Bill contains the appropriate amendments for this purpose. Other minor and consequential amendments to the 1977 Act are explained in the notes on the draft clauses.
8.33 The new provisions on the legal incapacities, for marriage attaching to Scottish domiciliaries who marry abroad, and on the associated grounds for nullity, would make it clear (a) that a person who is domiciled in Scotland cannot marry if he or she is already married and (b) that a person who is domiciled in Scotland cannot marry a person who is already married. They would, however, like the existing law of Scotland, contain no express prohibition on an unmarried person domiciled in Scotland marrying an unmarried person abroad, even if the marriage is in polygamous form. As the new rules would be exhaustive it would be clear that there was no implied prohibition of such marriages. This would remove a minor source of doubt in Scots law and give effect to a recommendation in an earlier joint report of the two Law Commissions. 60
8.34 The question of essential invalidity under earlier laws is of practical importance only in relation to the law on the prohibited degrees of relationship, where the law has been gradually liberalised by a series of Acts dating from 1907. 61 The question for consideration is whether a marriage which would be valid if entered into now should be invalid because entered into, perhaps abroad or in ignorance of the existence of the impediment, at an earlier date when the laws were different and more restrictive. There are two possible approaches.
8.35 One approach is to say that the law in force at the time when the marriage was entered into must apply. This is awkward because it means that anyone considering the validity of a marriage has to investigate what the law was in the past, perhaps many years ago. Nonetheless this was the approach. adopted in the Marriage Enabling Act 1960 which allowed (a) marriage with a divorced wife's sister, aunt or niece and (b) marriage with a divorced husband's brother, uncle or nephew. It was also the approach adopted by the Marriage (Scotland) Act 1977 although as that Act made only the most minimal changes in the prohibited degrees its lack of retrospectivity is of no practical importance. 62
8.36 The other approach is to apply the new, more liberal, law retrospectively. The effect is to grant an amnesty to those couples (if there happen to be any) who managed to marry in spite of the earlier laws. This was the approach adopted in the Deceased Wife's Sister's Marriage Act 1907, as amended by the Deceased Brother's Widow's Marriage Act 1921 and the Marriage (Prohibited Degrees of Relationship) Act 1931. 63 It seems to us to be both more humane and more convenient. We have adopted this approach in the draft Bill appended to this report. 64 The draft Bill makes it clear, however, that no marriage will be invalidated retrospectively and it also makes it clear that retrospective validation will not operate in relation to a marriage which was, before the commencement of the new legislation, declared void by a competent court or followed by another marriage entered into in reliance on the nullity of the first marriage. 65