Declarators of marriage or nullity of marriage
9.1 There was unanimous agreement with our provisional proposal that declarators of marriage and declarators of nullity of marriage should be competent in the sheriff courts. There are only about 8 actions for declarator of nullity of marriage a year in Scotland on average and even fewer actions for declarator of marriage. 1 The abolition of impotency as a ground of nullity and of marriage by cohabitation with habit and repute would reduce the number of such actions even further. So any effects on the courts' workloads would be minimal. We recommend that
51. Actions for declarator of marriage or nullity of marriage should be competent not only in the Court of Session but also in the sheriff courts.
(Draft Bill, clause 23(1) and Schedule 1 paragraph 2)
9.2 The draft Bill appended to this report applies the rules on jurisdiction in divorce to these actions. 2 We have not, however, thought it necessary to make special provision for the jurisdiction of the sheriff courts in those very rare cases where an action for declarator of marriage or nullity of marriage is raised after the death of both parties. In such cases resort could be had to the Court of Session under existing rules. 3
Declarators of freedom and putting to silence
9.3 An action for declarator of freedom and putting to silence is a hybrid remedy available against someone who falsely asserts that he or she is married to the person bringing the action. The 'pursuer seeks (a) a declarator that he or she is free of the asserted marriage and (b) a decree ordaining the defender to desist from asserting that he or she is the spouse of the pursuer, and putting the defender to silence thereanent. 4
9.4 There may have been a need for this type of nominate action in the days when irregular marriages were common and when there was often doubt as to whether a couple had privately exchanged consent to marry. The action is, however, now virtually unknown. Given the courts' general powers to grant interdict, we do not believe that a special form of action, with special rules of jurisdiction, 5 is now necessary to deal with a false assertion of marriage. Petitions
for jactitation of marriage, which were equivalent in function to actions for declarator of freedom and putting to silence, were abolished in England and Wales by the Family Law Act 1986. 6 They have also been abolished in Australia and New Zealand. 7
9.5 All of the responses on consultation, except one, supported our provisional conclusion that the remedy of an action for declarator of freedom and putting to silence should be abolished. The Law Society of Scotland, in supporting abolition, suggested that it might be advisable to make it clear that a repeated false assertion of marriage may be a wrong sufficient to ground an interdict. We think that this is a valuable suggestion and we adopt it. We therefore recommend that
52.(a) The remedy of an action for declarator of freedom and putting to silence should be abolished.
(b) It should be made clear that the courts' ordinary powers to grant interdicts and interim interdicts include power to grant interdict or interim interdict against the repetition of a false assertion of marriage to the applicant.
(Draft Bill, clause 23(2) and (3).)
Other declarators relating to marriage
9.6 The courts in Scotland, unlike the courts in England, have a general declaratory power. Accordingly, there is no need for special statutory provisions making it competent to grant, for example, a declarator that the validity of a foreign divorce is entitled to recognition in Scotland. 8 The Scottish courts can already grant such declarators, although of course it will only be in cases of genuine doubt (as to domicile, for example) that a declarator will be necessary. 9 In most cases it will be clear that a foreign divorce is entitled to recognition here. Recognition is automatic and does not require any registration or decree in Scotland. 10 In the discussion paper we asked whether it would nonetheless be useful (even if not strictly necessary) to provide by statute for the competency of a declarator as to whether a divorce, annulment or legal separation obtained outside Scotland was entitled to recognition in Scotland and, if so, whether the rules as to jurisdiction, title to sue and the effect of the decree should be the same as in the case of a declarator of marriage. 11
9.7 Most consultees thought that some statutory provision for these declarators would be useful. Some however, doubted the wisdom of expressly providing for their competency. On reconsidering this matter we have concluded that, given the courts' general powers, it would be inappropriate to provide that this type of declarator is competent. Moreover, there seems to be no need to regulate title to sue or the effect of a decree of declarator. These can be left to the general law. There is, however, a real practical problem in relation to jurisdiction. The ordinary grounds of jurisdiction in, for example, section 6 of the Sheriff Courts (Scotland) Act 1907 are not appropriate for such family law declarators. The Civil Jurisdiction and Judgments Act 1982 does not apply to matters relating to status. We therefore recommend that
53. The rules on jurisdiction applying to actions for declarator of marriage should also apply to actions for declarator that a divorce, annulment or legal separation is, or is not, entitled to recognition in Scotland.
(Draft Bill, Sch 1, amendments to Domicile and Matrimonial Proceedings Act 1973, section T)
9.8 The effect of the above recommendation, if implemented, would be that the Court of Session-would have jurisdiction in such an action for declarator if either of the parties to the marriage
(a) is domiciled in Scotland on the date when the action is begun; or
(b) was habitually resident in Scotland throughout the period of one year ending with that date; or
(c) died before that date and either
(i) was at death domiciled in Scotland, or
(ii) had been habitually resident in Scotland throughout the period of one year ending with the date of death. 12
The sheriff court would have jurisdiction on. the same grounds as currently apply in divorce actions. 13
9.9 We have taken the opportunity, while amending the Domicile, and Matrimonial Proceedings Act 1973, to tidy up the references to certain incidental or collateral orders, some of which have become out of date as a result-of amendments to other legislation. The draftsman has substituted descriptive references for the previous references to specific statutory provisions. 14 his not only simplifies the legislation but should also prevent the same problem from occurring again.