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1. See Part XIV.
2. This section was inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980. We consider later whether it could with advantage be slightly widened and strengthened. See para 8.14.
3. Law Com No 33, 1970.
4. See Part XIV.
5. Cossey v United Kingdom ECHR 27 September 1990.
6. This was also the view of article 12 taken by the court, unanimously, in the earlier decision of Rees v United Kingdom ECHR 17 October 1986.
7. S2.
8. 1977 Act Sch 1, para 1.
9. Marriage (Scotland) Act 1977, Sch 1 paras 2 and 2A, as substituted by the Marriage (Prohibited Degrees of Relationship) Act 1986.
10. Marriage (Prohibited Degrees of Relationship) Act 1986.
11. Marriage (Scotland) Act 1977, s2(1A), as inserted in 1986.
12. 1977 Act s2(1B), as inserted in 1986.
13. See Parl Debs (M) (1985-86) Vol 471 cols 885-892.
14. Ibid col 887. See also Vol 470 cols 957-960.
15. Parl Debs (M) (1985-86) Vol 471 col 891.
16. The Report was published in 1984.
17. Para 100.
18. Para 101.
19. Para 102.
20. Para 221.
21. Para 221.In many states of the USA there are no prohibitions based on affinity.
22. Para 276.
23. Para 257.
24. Para 258.
25 This refers to the former spouse of the son-in-law or daughter-in-law and not to any spouse the parent-in-law might have had. See para 9 of the Report.
26. Para 274. The minority said that what they would really have liked to recommend was a return to the position as it was before the Marriage (Enabling) Act 1960 (when marriage with a divorced wife's sister, aunt or niece, or a divorced husband's brother, uncle or nephew was prohibited so long as the divorced spouse was still alive). They accepted, however, that such a recommendation would not be realistic.
27. Capacity to marry depends primarily on the law of a person's domicile. So a person domiciled in England could not validly marry in Scotland if the marriage would be within the prohibited degrees by English law. Nor would a person domiciled in Scotland be able to have a marriage celebrated in England if the parties were within the prohibited degrees by English law. (Cheshire and North, Private International Law 11th ed 1987, p586). So the Scots law on this subject is of no direct concern to England, just as the English law is of no direct concern to Scotland.
28. By the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 s22(1)(d).
29. The "appropriate registrar" is, in the case of a civil marriage, an authorised registrar and, in any other case, a district registrar. S23A(2).
30. This is the present law. See Gall v Gall 1968 SC 332.
31. See eg s24 of the Marriage (Scotland) Act 1977.
32. See para 14.4 below.
33. See Clive, Husband and Wife (2nd ed 1982) pp95-101.
34. Ibid ppl. 10-111.
35. See Brady v Murray 1933 SLT 534; Orlandi v Castelli 1961 SC 113; Mahmud v Mahmud 1977 SLT (Notes) 17; Akram v Akram 1979 SLT (Notes) 87. The immigration rules are now such that a sham marriage will normally be ineffective for immigration purposes. See the Statement of Changes in Immigration Rules (1989 W 388) paras 50-52 and 131.
36. 1979 SLT (Notes) 87.
37. Ibid at p89.
38. H v H [19541 P 258; Silver v Silver [195512 All ER 614.
39. See eg Singh v Singh (1977) 77 DLR (3d) 154. The cases are discussed in Hahlo, Nullity of Marriage in Canada (1979) pp31-35.
40. Cf Balshaw v Balshaw 1967 SC 63 at p82.
41. See eg McLeod v Adams 1920 1 SLT 229.
42. See the unreported cases of McEwan v Risi (March 25, 1964) and Scott v Risi (March 25, 1965) discussed in Clive, op cit at pp106~107.
43. Clause 21.
44. CB v CB (1884) 11 R 1060 at p1067; affd (1885) 12 R (HL) 36. See generally, Clive, pp111-116.
45. F v F 1945 SC 202.
46. For a historical and highly critical account of the concept of the voidable marriage in Scots law, see Norrie, "Transsexuals, the Right to Marry and Voidable Marriages in Scots Law", 1990 SLT (News) 353.
47. See Clive, p88.
48. See Clive, p87; Mackle v Mackle 1984 SLT 276.
49. Matrimonial Causes Act 1973, s16.
50. Cretney and Masson, Principles of Family Law (5th ed, 1990) pp70-73. The concept of the voidable marriage no longer appears in
Australian law. Family Law Act 1975, s51.
51. See M v W or M 1966 SLT 152.
52. L v L 1931 SC 477; AB v CB 1961 SC 347.
53. In our report on Reform of the Ground for Divorce (Scot Law Com No 116, 1989) we have recommended a shortening of the separation periods to 1 year (with the consent of the other party to divorce) or 2 years (even in the absence of such consent).
54. Cf J v J 1978 SLT 128.
55. This might in certain circumstances justify divorce on the ground that since the date of the marriage, the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender".
Divorce (Scotland) Act 1976, sl(2)(b).
56 . Impotency has been a ground of nullity since before the Reformation. The existing law derives from 16th century canon law, which did not recognise divorce.
57. Under the present law the period would be 2 years if the other spouse consented to divorce or 5 years if he or she did not. Divorce
(Scotland) Act 1976 sl(l)(d) and (e). Under the recommendation in our report on Reform of the Ground for Divorce (1989) these periods would be
reduced to 1 year and 2 years respectively.
58. Comment by the Law Society of Scotland in their response to the discussion paper.
59. See para 14.13 below.
60. Polygamous Marriages: Capacity to Contract a Polygamous Marriage and Related Issues (Law Corn No 146; Scot Law Corn No 96, 1985) para 2.34.
61. See Law Corn No 126; Scot Law Com No 96, paras 2.11 to 2.12, 2.16 and 2.32.
62. See s27(3) of the 1977 A6t. The Act permitted marriage with a great-uncle, great-aunt, great-nephew or great-niece and also with a great--great grandparent or great-great-grandchild or a former spouse's great-grandparent or great-grandchild. It must be doubtful whether there have been any such marriages.
63. S1 of the 1907 Act said that "No marriage heretofore or hereafter contracted between a man and his deceased wife's sister, within the realm or without, shall be deemed to have been or shall be void." For an example of its operation see Re Green, Green v Meinall [191112 Ch 275.
64. Clause 21(6).
65. Before the Age of Marriage Act 1929 a girl could marry at 12 and a boy at 14. Any marriage by a person under the age of 16 which was valid under the pre-1029 law will not be invalidated by the Bill. See clause 21(4) and (7).
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