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1. Private International Law: Choice of Law Rules in Marriage (Law Com Working Paper No 89; Scot Law Com Consultative Memorandum No 64), referred to in this Part as "the discussion paper" or "the 1985 discussion paper".
2. Private International Law: Choice of Law Rules in Marriage (Law Com No 165; Scot Law Com No 105), referred to in this Part as "the 1987 report".
3. Report, paras 2.13 and 2.14.
4. Particularly the so-called common law exception to the rule that formal validity is governed by the law of the place of celebration and the choice of law rules on annulment for impotency or wilful refusal to consummate a marriage.
5. See paras 14.13 to 14.19 below.
6. Para 2.12.
7. See Anton, Private International Law, (2nd ed 1990) pp421-428; Clive, Husband and Wife (2nd ed 198.2 pp145-148 (cited in the rest of this report as "Anton" and "Clive" respectively).
8. Cf Starkowski v Att-Gen [19541 AC 155.
9. Para 14.6 below.
10. Para 9.5.
11. This is certainly.required in relation to nonage and prohibited degrees of relationship in the case of marriages celebrated in Scotland. Marriage (Scotland) Act 1977 ssl and 2. See also Lendrum v Chakravarti 1929 SLT 96 at p103.
12. This is the view favoured by both Law Commissions in the 1987 Report. See para 2.6.
13. See Anton, pp428-438; Dicey and Morris, The Conflict of Laws (l lth ed 1987) p638; Cheshire and North, Private International Law (l lth ed 1987) pp586 and 587 (cited in the rest of this report as "Dicey and Morris" and "Cheshire and North" respectively).
14. See Clive, pp156-157; Anton pp439-441 ("one can only speculate what the Scottish choice of law rule will be
15. Cf the Marriage (Scotland) Act 1977, s3(5).
16. We have recommended a rule of this nature for Scots law at para 8.20 above. Clearly if Scots law were the law governing the question of duress this rule would apply as part of Scots law.
17. Report on Polygamous Marriages (Law Com No 146; Scot Law Corn No 96, 1985) para 2.34.
18. Clauses 20 and 21.
19. Marriage (Scotland) Act 1977 ss1(2) and 2(1).
20. See Part VIII above. We are referring to Scottish internal law here.
21. Para 9.6. In the 1987 report both Commissions favoured the idea that parties marrying in the United Kingdom should require to have capacity by the law of the relevant part of the United Kingdom. Para 2.6.
22. The draft Bill achieves this result by listing exhaustively the grounds of nullity for marriage entered into in Scotland and by not including tacit reservations.
23. Bliersbach v MacEwan 1959 SC 43. The position is the same in English law. See Simonin v Mallac (1860) 2 Sw & Tr 67; 164 ER 917; Ogden v Ogden [19081 P 46.
24. See eg Falconbridge, Essays on the Conflict of Laws (2nd ed 1954) pp74-86; Anton, pp69, 420, 433-434; Cheshire and North, pp50 and 51.
25. Marriage (Scotland) Act 1977 sl(l).
26. Paras 4.8 to 4. 10.
27. Para 9.9.
28. One consultee pointed out that the foreign law might provide for the retrospective validation of a marriage which was initially invalid because of lack of parental consent. This is a separate question which we have dealt with in para 14.5 above. A rule of the applicable foreign law providing, in effect, that an incapacity due to lack of parental consent would be retrospectively ignored in certain cases would simply have effect as part of that applicable law.
29. Marriage Act 1949, 0. The requirement applies only to marriages by common licence or on the authority of a superintendent registrar's certificate. It would probably be characterised in English law as relating to form. See Dicey and Morris, p604. The English Law Commission has recommended its abolition. Report on Guardianship and Custody (Law Com No 172, 1988) para 7.11.
30. Thus the same result would be reached on the facts of Simonin v Mallac (1860) 2 Sw & Tr 67; 164 ER 917.
31. See eg art 148) of the French Civil Code which provides that minors cannot contract marriage without the consent of their parents, or one of them.
32. 1959 SC 43.
33. See the Report of the Committee on the Marriage Law of Scotland (1969) Cmnd 4011.
34. [19081 P 46.
35. See also Marriage (Scotland) Act 1977 s3(5).
36. Cf MacDougall v Chitnavis 1937 SC 390.
37. Cf Sottomayor v De Barros (No 2) (1879) 5 P1) 94 at p104.
38. Para 3.49.
39. It should be noted that a marriage may be initially invalid under an applicable law notwithstanding that in that law there are restrictions on title to sue for a declarator of nullity.
40. Para 9.13. In the discussion paper we said "any ground other than incurable impotency". As we have recommended that impotency should cease to be a ground on which a marriage is voidable in Scots law that qualification can now be dropped.
41. See paras 8.29 and 8.30 above.
42. Family Law Act 1986, s46.
43. The one consultee who disagreed with our suggestion on this point was concerned, among other things, that there should be a choice of law rule on incapacity for marriage because of impotency. However, there would be such a rule. Capacity for marriage depends on the law of the person's ante-nuptial domicile. If that law says that a person, if impotent, lacks the legal capacity for marriage then the marriage will be void. The trouble is that some legal systems say that impotency does not result in a legal incapacity for marriage but yet say that it is a ground for dissolving a valid marriage later. Our view is simply that the grounds available in the Scottish courts for dissolving a valid marriage should depend on Scots law.
44. Matrimonial Causes Act 1973, s13. For example, proceedings must be begun within 3 years of the date of the marriage. S13(2).
45. Matrimonial Causes Act 1973, s16.
46. Sottomayor v De Barros (No 2) (1879) 5 P1) 94.
47. See eg Dicey and Morris, p624; Cheshire and North, p585.
48. MacDougall v ChitnaWs 1937 SC 390 at pp403 and 407.
49. Cf ss3(5) and 5(4).
50. Para 3.48.
51. The exception is fully discussed in the 1985 discussion paper at paras 2.14, 2.20 to 2.30 and 2.54 to 2.68.
52. See Fraser, Husband and Wife, Vol 11 pp1313 and 1314, and Barclay v Barclay (1849) 22 Scot Jur 127 per Lord Ivory at p131. Modern textbook writers are, not surprisingly, non-committal on this point. See Anton, p428; Clive, pp147 and 148.
53. Paras 2.54 to 2.68.
54. Barclay v Barclay (1849) 22 Scot Jur 127. This case concerned the validity of a marriage between Protestants in a Catholic country in 1780. The parties had always been regarded as validly married during their lives and there was a very strong presumption in favour of their having been validly married, either by the ceremony in question (about which there was a division of legal opinion) or by some other ceremony. This presumption was not rebutted by the evidence led.
55. Foreign Marriage Act 1892 as amended.
56. S20. "Ceremony" is not defined.
57. Para 14.5 above.
58. Cf Prawdzic-Lazarski v Prawdzic-Lazarska 1954 SC 98 where, however, the content of the foreign law was not proved and the case was disposed of by applying Scots law.
59. See Jack v Jack (1,862) 24 D 467 at p475; Anton, pp465-467.
60. Report on Jurisdiction in Consistorial Causes Affecting Matrimonial Status (Scot Law Com No 25, 1972) at pp10-13. The English Law Commission came to the same conclusion: Report on Jurisdiction in Matrimonial Causes (Law Com No 48, 1972) at pp38-39.
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