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1. See the Marriage (Scotland) Act 1977.
2. Campbell v Campbell (1866) 4 M 867 at p925; Nicol v Bell 1954 SLT 314 at p326. For a discussion of the origin and nature of cohabitation with habit and repute in Scots law see Clive, Husband and Wife (2nd edn 1981) pp59-76. The most recent reported example of this type of marriage is Donnelly v Donnelly's Exr 1992 SLT 13.
3. The average since 1961 has been between 3 and 4 a year. Annual Reports of Registrar General for Scotland.
4. Another consequence of the existence of the marriage, independently of a declarator, is that either *spouse can raise an action for damages for the death of the other without first obtaining a declarator of marriage. See Forbes v House of Clydesdale Ltd 1987 SCLR 136.
5. Wallace v Fife Coal Co 1909 SC 682 at p686. See also Low v Gorman 1970 SLT 356.
6. Shaw v Henderson 1982 SLT 211.
7. Ibid. See also Donnelly v Donnelly's Exr 1992 SLT 13.
8. Cunningham v Cunningham (1814) 2 Dow 482 at p514. C Petrie v Petrie 1911 SC 360.
9. Cf Bairner v Fels 1931 SC 674.
10. In Nicol v Bell 1954 SLT 314 the man was not believed.
11. Cf Lapsley v Grierson (1845) 8 D 34; 1 11LC 498.
12. See Wallace v Fife Coal Co 1909 SC 682 at p686.
13. See eg Shaw v Henderson 1982 SLT 211 and the unreported case of Doran v Lord Advocate, Feb 13, 1975 referred to in Clive, Husband and Wife (2nd edn 1981) at p66, footnote 32.
14. Cf Low v Gorman 1970 SLT 356.
15. The cases are reviewed in Clive, op cit pp67-74.
16. See "Cohabitation in Great Britain-characteristics and estimated numbers of cohabiting partners" Population Trends (OPCS) Winter 1989) pp23-31. It is estimated that in 1986-87 9.4% of people in Scotland, who were single, separated or divorced, were cohabiting with a person of the opposite sex (p28). The interviewers for the General Household Survey have found that people are quite prepared to describe themselves as living together, without claiming to be married. Ibid p23. See also the report of the 1986 General Household Survey p23. There is clearly much less stigma attaching to cohabitation than formerly.
17. See Wallace v Fife Coal Co 909 SC 682 at p686. Judges have, however, sometimes overcome this difficulty. See eg the cases of Shaw v Henderson and Doran v Lord Advocate referred to above. The rather odd result of holding a couple married by cohabitation with habit and repute even although they intended to have a regular ceremony is that, logically, they could not have had a valid regular marriage. They would already have been married and people who are married already cannot get married again, without an intervening divorce.
18. See Part XVI below.
19. Law Reform (Parent and Child) (Scotland) Act 1986, sl. See also paras 2.36 to 2.52, above and paras 17.1 to 17.15 below.
20. See eg Barclay ~v Barclay (1849) 22 Scot Jur 127.
21. Marriage (Scotland) Act 1977, s23A (added by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, s22(1)(d)). See also para 8.14 below.
22. Family Law (Scotland) Act 1985, s17.
23. See paras 16.24 to 16.37 below.
24. Irregular marriages by express declarations of present consent were abolished by s5 of the Marriage (Scotland) Act 1939.
25. Irregular marriages by promise subsequente copula were also abolished by s5 of the Marriage (Scotland) Act 1939.
26. Sellar, "Marriage by Cohabitation with Habit and Repute: Review and Requiem" (to be published in 1992 in a volume of essays in memory of Professor Sir Thomas Smith). Mr Sellar has kindly made this essay available to us in advance of publication. In it he concludes that "The true position under Scots common law then appears to be that declarator of marriage will be granted if there exist facts and circumstances from which consent to marriage can lawfully be inferred; such facts and circumstances will usually, but need not necessarily, include cohabitation with habit and repute.".
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