Introduction
14.1 The rules as to which law governs the validity of a marriage in cases involving a foreign element (eg where a party domiciled in one country married in another) depend partly on statute and partly on common law. The Scottish and English Law Commissions reviewed this whole area in a discussion paper published in 1985 1 and summarised the results of the consultation in a report published in 1987. 2 The report recommended certain changes in the Foreign Marriage Act 1892, designed to remove anomalies (such as the application of English law to Scottish domiciliaries) and bring the Act up to date. It also recommended certain minor changes in related subordinate legislation and the repeal of various spent Acts validating certain foreign marriages. The report was implemented by the Foreign Marriage (Amendment) Act 1988.
14.2 On the broader question of the basic choice of law rules in marriage the report summarised the results of the consultation and the views of the two Commissions on some of the major questions for consideration but did not recommend legislation. The main reason for this was that there was little dissatisfaction with the basic rules of the existing law, so that the need for reforming legislation was not established. Subsidiary reasons were that the resolution of some of the uncertainties in the existing law was thought to require quite complicated legislation and that to reduce the law to statutory form might prevent its further development by the courts. 3 The first of these arguments loses its force in the context of a proposed codification, where the law is being set out in statutory form in any event. The second argument-that complicated legislation would be required-also loses its force in the context of a proposed Scottish codification where, as we show later, the most difficult problems canvassed in the discussion paper 4 can be dealt with quite simply. 5 The third reason-that statutory rules would prevent judicial development of a still undeveloped area of the law-is hardly applicable in Scotland where cases on this area of the law are few and far between, and it must in any event, as was recognised in the report, 6 be weighed in the balance against the argument that it is desirable, in the public interest, to provide a clear statement of the law in those areas where the very lack of development makes it impossible to state with any certainty what the law is.
14.3 We have no doubt that a new -Scottish family law code should include choice of law rules on marriage and we think that those rules should be those which commended themselves to both Law Commissions in their joint work on this topic a few years ago, subject to some minor clarifications and developments which are possible in the purely Scottish context. We have kept the English Law Commission fully informed of our proposals and progress in this area since work on the discussion paper began in September 1989.
14.4 Formal validity. We recommend that, subject to the Foreign Marriage Act 1892 as amended (which deals with marriages by British consuls etc abroad), the question whether a marriage is formally valid should be governed by the law of the place of celebration. This is the existing law 7 and it was strongly supported on consultation both in the Law Commissions' joint exercise land in response to Discussion Paper No 85. We do not think it is necessary or desirable to prevent a reference of the matter by the law of the place of celebration to some other law (renvoi) in the unlikely event of this occurring. Nor do we think it necessary (although a few consultees suggested this) to state expressly that renvoi is permitted. If, say, the law of the place of celebration provides that foreign nationals can marry in any form permitted by their law then that rule would plainly be itself part of the law of the place of celebration and no express provision to this effect seems necessary. Nor do we think it necessary to spell out that the law of the place of celebration should be applied in the light of any retrospective changes made in it. It may happen, for example, that all marriages celebrated in a particular place over a certain period were formally invalid because of some factor which was not appreciated at the time and that a statute is subsequently passed validating those marriages retrospectively. A reference to the law of the place of celebration after this statute has been passed would have to take account of it. This, we think, would be the result which would follow in the absence of any provision to the contrary 8 and we do not think that any such provision to the contrary should be inserted.
14.5 Essential validity. We proposed in Discussion Paper No 85 that, subject to a special exception for marriages celebrated in Scotland, 9 the question whether a marriage is essentially invalid because either party was under a legal incapacity to enter into it, or did not give a legally effective consent to it, should be governed by the law of that party's domicile immediately before the marriage. 10 This proposal was supported by all of those who commented on it. Under the existing law there is some uncertainty as to whether a party must also have capacity by the law of the place of celebration. 11 We propose later that a party marrying in Scotland should be required to have capacity by Scots law, but we regard this as a limited exception on grounds of public policy to the general rule and do not recommend that, in the case of a marriage outside Scotland, the law of the place of celebration should have any role to play in relation to capacity. 12 In relation to capacity to marry, the rule which we propose would resolve a doubt in the existing law but would not be inconsistent with the existing authorities. 13 In relation to defective consent the proposed rule would clarify what is a very uncertain area of the present law. 14 Again, we do not think it necessary or desirable to prevent the law of the domicile referring a question of essential validity to another personal law (renvoi). 15 Nor do we think it necessary or desirable to exclude from the scope of the applicable law of the domicile any rules providing for defects in capacity or consent to be disregarded in certain situations. Examples of such rules might be a rule that a lack of capacity due to nonage would be retrospectively ignored if the marriage had not been challenged by the time the younger party attained the minimum age, or a rule that a defect in consent due to duress would be retrospectively ignored if the marriage had not been challenged promptly once the source of the duress was removed. 16 The Law Society of Scotland suggested that, as recommended in an earlier report by the Commission, 17 it should be made clear that a person domiciled in Scotland does not lack capacity to enter into a marriage by reason only that the marriage is entered into under a law which permits polygamy. We agree. As we have noted above, the draft Bill covers this point when, in dealing exhaustively with impediments to marriage, it omits any reference to an incapacity to enter into a marriage abroad in polygamous form. 18
14.6 Marriages in Scotland. No matter where the parties are domiciled a marriage solemnised in Scotland is void if either party is under the age of 16 or if the parties are within the prohibited degrees of relationship set out in the Marriage (Scotland) Act 1977. 19 The justification for this exception to the rule that capacity to marry is governed by the law of the domicile is no doubt that it would be contrary to public policy to allow people under 16 or within the, now quite restricted, prohibited degrees to conclude a valid marriage in Scotland even if they had, by lies or concealment of the truth, managed to induce someone to solemnise a purported marriage. The same considerations, we believe, apply to the other grounds of essential invalidity in Scots law. 20 These are all of a fundamental nature-going to the very basis of the concept of marriage-and we do not think that a marriage purportedly entered into in Scotland should be regarded as valid if one of these grounds of invalidity exists. We therefore suggested, in Discussion Paper No 85 21 that, no matter what the domiciles of the parties may be, a marriage entered into in Scotland should be invalid if, according to Scottish internal law, (a) the parties are within the prohibited degrees of relationship (b) either party is already married (c) either party is under the age of 16 (d) the parties are of the same sex or (e) because of mental incapacity, error, duress or other reason either party does not effectively consent to the marriage. This suggestion was supported by all who commented on it. In relation to the last ground mentioned it is worth stressing that Scots law confines invalidity for defective consent to cases where the lack of consent goes to the very root of the marriage and where there is no meaningful consent at all.
14.7 We have already recommended that a tacit mental reservation on the part of one or both of the parties as to the legal effect they intend the ceremony to have should not be regarded as a defect in consent. In some of the cases where this gives rise to difficulty the marriage is entered into for immigration purposes, and one of the parties may well be domiciled abroad. It could frustrate the operation of the proposed rule, in so far as it is designed to prevent abuse of Scottish marriage ceremonies, if a party were ' allowed to plead that by the law of his or her ante-nuptial domicile a tacit mental reservation precluded consent. We therefore recommend that this rule too should apply to marriages entered into in Scotland, no matter what the domiciles of the parties may be. 22
14.8 Parental consent. At present a requirement of parental consent to the marriage of a minor is regarded as a matter of form . 23 It is therefore governed by the law of the place of celebration rather than by the law of the domicile of the party concerned. This rule has been much criticised. 24 It seems perverse to characterise all requirements of parental consent as pertaining to form. Such a requirement may be a mere matter of form if, for example, it applies only to a marriage celebrated in the jurisdiction concerned or one celebrated in a particular way. But it may not be. It may be intended to prevent the young person from entering into a valid marriage anywhere, in any way, just as the Scottish rule about under-age marriages is intended to prevent a Scottish domiciliary under the age of 16 from entering into a valid marriage anywhere. 25
14.9 The 1985 discussion paper suggested that this question should be left to judicial development. It also, however, set out various possible legislative solutions and invited comments. 26 In the context of a new code it would, we think, be desirable to include a provision on this matter. In the light of the criticisms made of the present law and of the comments made on the 1985 discussion paper we consider that it would be unsatisfactory to classify all requirements of parental consent automatically as formal requirements. It would be equally unsatisfactory to classify a requirement which related only to marriages in a particular form or place as one which resulted in a legal incapacity. It would also be unsatisfactory if our courts were obliged to follow a foreign classification, which might be perverse or non-existent. As a number of commentators on the 1985 discussion paper pointed out, it is for our law to classify rules, for our choice of law purposes, as rules relating to form or legal capacity. We suggested in Discussion Paper No 85 that the simplest and most satisfactory solution would be to provide that a rule requiring a person under a certain age to obtain the prior consent of a parent or guardian before he or she can marry would be regarded as resulting in a legal incapacity for marriage if, but only if, it precluded a marriage by that person anywhere in any form while under that age. 27 This was agreed by all those who commented on it. 28
14. 10 A solution on these lines would mean that the rule of English law requiring consent to the marriage of a person under 18 would continue to be regarded in Scots law as one which did not result in a legal incapacity for marriage, because it applies only to marriages in certain forms. 29 Similarly, a rule of a foreign system which merely delayed a minor's marriage without parental consent for a period after consent was refused (in order to give time for second thoughts) would not be regarded in Scots law as giving rise to a legal incapacity because it would not preclude, but would only delay, the marriage of the minor. 30 A rule of the law of the domicile which said that a minor could not marry anywhere in any form without parental consent would ' however, be regarded as resulting in a legal incapacity for marriage. 31 This, as we have seen earlier, would have meant a different decision in Bliersbach v MacEwanll 32 where the question was whether a Dutch minor should be allowed to marry in Scotland without the parental consent required by Dutch law. The result under our proposed rule would be much more consistent with the policy behind section 3(5) of the Marriage (Scotland) Act 1977, which requires foreign domiciliaries to produce certificates of capacity to marry under their own law and which was designed to discourage "runaway" marriages by foreign minors without parental consent. 33 The proposed rule would also have resulted in a different decision in the much-criticised case of Ogden v Ogden. 34
14.11 Effect of divorce. It may happen that the law of a person's ante-nuptial domicile does not recognise that he or she is divorced, and therefore regards him or her as still married, whereas the divorce is recognised in Scotland. Indeed the divorce may have been granted in Scotland. This matter is dealt with by section 50 of the Family Law Act 1986 which, broadly speaking, provides that in this situation the divorce granted or recognised in Scotland prevails. Accordingly the person can marry in Scotland, 35 and a marriage by that person (wherever it takes place) is not treated as invalid in Scotland. This provision would be repeated in any consolidation or codification. We mention it here only because it is an essential qualification of the rule that legal capacity to marry depends on the law of the domicile.
14.12 Public policy. Under the present law there are certain cases where the normal choice of law rules will not be applied because to do so would be contrary to Scottish public policy. For example, an incapacity by the law of the domicile would probably not be recognised if it were based on religion 36 or skin colour. 37 Conversely, a law of the domicile conferring capacity might not be recognised if, for example, it allowed a girl of five years of age to marry. In the 1985 discussion paper we suggested that a public policy exception should continue to apply. 38 No-one disagreed with this.
14.13 Annulment of voidable marriages on grounds unknown to Scots law. The question for consideration here is whether, assuming that an initially valid marriage has been entered into 39 a Scottish court should be able-to declare it null on some ground, such as wilful refusal to consummate, not recognised as a ground of nullity in Scots law. We are concerned here with initially valid marriages. The question is really whether such marriages should be dissoluble. This question is similar to the question whether Scottish courts should grant divorces on grounds unknown to Scots law. We suggested in Discussion Paper No 85 that it should be made clear that a marriage, which on applying the above choice of law rules is initially valid, could not be annulled or declared pull by a Scottish court on any ground. 40 This is consistent with our earlier recommendation on the abolition of the concept of the voidable marriage in Scots law 41 Our proposal was accepted by all except one of those consultees who commented on it. It would not change the existing Scottish practice in relation to grounds of voidability unknown to Scots law. It would be for other countries to decide whether -their courts should dissolve initially valid marriages on various grounds, and whether the decree dissolving them should be called a divorce or a nullity decree or something else. Of course, foreign nullity decrees would continue to be recognised in Scotland, if the foreign court had jurisdiction, even if the ground of annulment were one not found in Scots law. 42 There would be no change in that rule. However, people domiciled or habitually resident in Scotland who seek to have valid marriages dissolved in Scottish courts can reasonably be expected to find that Scots law applies. 43 The difficulty of any other approach is shown by the fact that, in relation to voidable marriages in English law, the English courts have certain statutory restrictions placed on them. 44 These restrictions would not affect a Scottish court. Yet it would seem to be wrong to apply an English rule without its attendant qualifications. Moreover an English decree annulling a voidable marriage has prospective effect only. 45 A Scottish decree of declarator of nullity declares the marriage to have been void from the beginning. This would be an inappropriate remedy for a defect, governed by the law of the domicile, which that law does not regard as making a marriage void from the beginning.
Matters omitted from proposed rules
14.14 The Sottomayor v De Barros rule. This is a rule of English law to the effect that an incapacity by the law of one party's domicile will be ignored if the marriage is celebrated in England and the other party is domiciled in England. 46 This rule has been strongly criticised as being nationalistic and unprincipled. 47 There is an apparent recognition of it in one Scottish case, 48 but it is not included in the Marriage (Scotland) Act 1977. 49 In the 1985 discussion paper it was suggested that this rule should be abolished. 50 This proved, in general, to be acceptable to those who commented on the paper, some Scottish consultees taking the view that as the rule was not a clearly established rule of Scots law its abolition would have no effect in Scotland. We suggested in Discussion Paper No 85 that the rule should simply be omitted from the proposed new statutory scheme. No-one disagreed with this suggestion.
14.15 A general exception to the rule that formal validity depends on the law of the place of celebration. In England there is a common law exception to the rule that the law of the place of celebration governs the formal validity of a marriage. English law recognises a marriage as formally valid if (a) it is celebrated in circumstances where compliance with the local law is virtually impossible or is celebrated in a country under belligerent occupation where one of the parties is a member of the occupying forces and (b) it complies with the requirements of the English common law . 51 There have been suggestions that there is a similar exception in Scots law, 52 but there is no modern authority on it and the law is undeveloped.
14.16 The 1985 discussion paper sought views on various options in relation to this common law exception 53 So far as Scotland is concerned the preservation of the existing law is not an option, because there is no satisfactory existing law to preserve, and the options are (a) to provide a new statutory exception or (b) to provide no exception. If a new exception were to be provide4 it might be to the effect that a couple would not be regarded as invalidly married by reason only of -non compliance with the formal requirements of the law of the place of celebration of the marriage, if compliance with those formal requirements was impossible or not reasonably to be expected in the circumstances and if they exchanged present consent to marry each other. Would such an exception be necessary or desirable?
14.17 It can hardly be argued that an exception on the above lines is necessary. The need for it has not been obvious in the past. The only Scottish case in which it has been mentioned concerned a marriage in 1780 and the case would have been decided in exactly the same way even if the exception had not been mentioned. 54 There are statutory provisions for consular marriages abroad where compliance with local forms may be difficult and there are also provisions for marriages of members of the armed forces, and certain accompanying persons, abroad. 55 The speed of travel now means that parties will often be able to marry in their own country in circumstances where in previous centuries an early marriage would have been impossible. Marriage itself is less necessary than in former times, when cohabitation before marriage would have been unthinkable for many people and when the legal consequences of marriage were more important than they are now. There is also a provision in the Marriage (Scotland) Act 1977 which enables people who have gone through a marriage ceremony outside the United Kingdom but who are not, or are unable to prove that they are, validly married to each other in Scots law,. to have a second marriage ceremony performed in Scotland. 56 The Marriage Schedule is endorsed by the authorised registrar with the words
"The ceremony of marriage between the parties mentioned in this Schedule was performed in pursuance of section 20 of the Marriage (Scotland) Act 1977, following a statutory declaration by them that they had gone through a ceremony of marriage with each other on the........day of........19........, at ".
This facility could be useful, for example, in cases where parties have been forced to resort to a ceremony of doubtful validity in a time of war or great civil upheaval. In short, if an exception has not been found necessary so far in Scots law it would certainly not seem to be necessary now.
14.18 On the question whether, even if not demonstrably necessary, a statutory exception should be introduced just in case a situation should arise for its application, there are two arguments which point against introduction. The first is that there would be a loss of certainty. People who, for some reason, had not married in the regular form might try to avail themselves of the exception. Although designed for genuine cases of difficulty and hardship, the exception might be founded on in undeserving cases with resulting confusion. The uncertainty caused by the old law on marriages by declaration of present consent would, within this limited area, be re-introduced. That the common law exception itself has not given rise to problems of this nature is not a conclusive counter argument. The statutory exception would be drawn to people's attention by the mere fact of its appearance in the legislation and would not be such a speculative ground on which to rely as is the common law exception, especially in Scotland. The second argument is one relating to the form, rather than the substance, of proposed legislation. The full advantages of codification will be gained only if unnecessary exceptions, qualifications and complications are excluded. This seems to us to be an unnecessary exception.
14.19 The conclusion which we reached in Discussion Paper No 85 was therefore that there should be no exceptions to the rule that the formal validity of a marriage is governed by the law of the place of celebration, other than those provided for in the Foreign Marriage Act 1892 as amended. Only one consultee disagreed with this conclusion, on the ground that an exception might be useful in very rare cases.
14.20 A rule on prospective validation. We have referred earlier to the common type of retrospective validating legislation designed to cure formal defects in certain marriages or to validate marriages void because of, say, error if the error is not founded on timeously. Such rules fall to be regarded, we have suggested,, simply as part of the applicable law and require no separate provision to be made for them. 57 It could also happen that a foreign law provided for a marriage to become valid at some time after it had been entered into. For example, there might be a rule validating a bigamous marriage prospectively as from the date when the first marriage is dissolved by the death of the other party or by divorce 58 or a rule validating an under-age marriage prospectively if the parties are cohabiting as husband and wife when the younger party attains the minimum age for marriage. We would be reluctant to burden a new statute with special rules on a topic which is likely to arise rarely if at all and have therefore asked ourselves whether any problems caused by prospective validation could be solved by applying the proposed general rules. We think they could be. The first marriage is invalid when entered into and is not retrospectively validated. In reality therefore there is a new marriage at the time of the validating event. It is rather like a marriage by promise subsequente copula in the old Scots law, inasmuch as it is a marriage as a result of an event following on an antecedent ineffective mutual commitment. Under the normal rules the marriage would, we suggest, be recognised if the law of the country where the parties are when the event occurs regards this as sufficient in respect of formal validity and if the laws of their domiciles at that time regard them as having capacity to marry and regard their deemed or tacit consent as sufficient for marriage.
14.21 There is a well-established rule that a Scottish court applies Scots law in a divorce action. 59 Even if the parties are both domiciled abroad it is the Divorce (Scotland) Act 1976 which determines whether a divorce will be granted, and the Family Law (Scotland) Act 1985 which regulates financial provision on divorce. This rule has worked well over the years whereas any rule referring to a foreign domiciliary law could have resulted in inconvenience, expense and (at least before wives were able to have their own domiciles) injustice. The existing rule was considered and supported by this Commission in 1972. 60 It would be useful, from the point of view of an eventual codification, to have it set out in statutory form and we so recommend.
14.22 There was almost unanimous support for our provisional proposals on choice of law rules on the validity of marriages. We therefore recommend
70.(a) Subject to the Foreign Marriage Act 1892 as amended, the question whether a marriage is formally valid should be governed by the law of the place of celebration.
(b) Subject to the following recommendation and to section 50 of the Family Law Act 1986 (effect of divorce), the question whether a marriage is essentially invalid because either party 'was under a legal incapacity to enter into it or did not give a legally effective consent to it should be governed by the law of that party's domicile immediately before the marriage.
(Draft Bill, clause 31(1) and (2).
71. A marriage entered into in Scotland should be invalid, no matter what the domiciles of the parties, if, according to Scottish internal law, at the time when the marriage was entered into
(a) the parties were within the forbidden degrees of relationship,
(b) either party was already married,
(c) either party was under the age of 16,
(d) the parties were of the same sex, or
(e) because of mental incapacity, error or duress either party did not effectively consent to marriage but, without prejudice to the law on error or duress, should not be invalid 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, clauses 20 and 21)
72. A rule requiring a person under a certain age to obtain the prior consent of a parent or guardian before he or she can marry should be regarded as resulting in a legal incapacity for marriage if, but only if, it precludes a marriage by that person anywhere in any form while under that age.
(Draft Bill, clauses 20 and 31(4).)
73. Where, on the application of the above rules, a marriage is initially valid it should not be annulled or declared null by a Scottish court on any ground.
(Draft Bill, clause 21(8).)
74. A foreign rule as to the validity or invalidity of a marriage should not be recognised or applied in Scotland where to do so would be contrary to Scottish public policy.
(Draft Bill, clauses 20 and 31(3).)
75. The existing rule that a Scottish court applies Scots law in a divorce action, no matter what the domiciles of the parties may be, should be put into statutory form.
(Draft Bill, clause 31(5).)