Irregular Marriages

[Russell]

Hi David

I think that the evidence Leah Leneman put forward in 'Promises, Promises' show that different people place differing interpretations on what constitutes a proper marriage and in many instances she found no evidence of witnesses being a mandatory component and this was upheld by the court.

Russell

[DavidWW]

Hi David

I think that the evidence Leah Leneman put forward in 'Promises, Promises' show that different people place differing interpretations on what constitutes a proper marriage and in many instances she found no evidence of witnesses being a mandatory component and this was upheld by the court.

Russell

Hi Russell

Many thanks for that.

Leah Leneman's various books are in my genealogical library, but currently in a box in transit between our current house and our new residence in Dalry (the North Ayrshire one), so that Ah hae ma doots about when I'll be able to go back and reread them !!

Orraverybest

David

[Russell]

Hi David
Well your welcome to pop in and read my copy anytime

Just when your passing my neck of the woods unless, of course, you use the southern by-pass to avoid Kilbarchan.

Russell

[DavidWW]

Hi David
Well your welcome to pop in and read my copy anytime

Just when your passing my neck of the woods unless, of course, you use the southern by-pass to avoid Kilbarchan.

Russell

Hi Russell

Not so much a question of using the southern by-pass to "avoid" Kilbarchan, more just a simple question of the considerable advantage of using the dual carriageway extension some years ago of the A737 to cut down the time required to reach Dalry ..........

To my eternal shame I have never yet explored my Kilbarchan links in terms of visiting the addresses involved, - that in the context of having done so for other links to Montrose and surrounds; Girvan/Dailly/Colmonell for the "Kilbarchan" line; Monquheter and surrounding parishes in NW Aiberdeenshire; and The Black Isle.

One of those situatiions, I guess where the Kilbarchan location has always been "too" close, so too easily visitable; a bit along the lines of having lived 2 miles away from the Burrell Collection but taking 8 years to get round to the first visit, but, in the meantime, having spent considerable time visiting museums and similar etc. in Embra and further away from Glesca

David

[SarahND]

a bit along the lines of having lived 2 miles away from the Burrell Collection but taking 8 years to get round to the first visit, but, in the meantime, having spent considerable time visiting museums and similar etc. in Embra and further away from Glesca

Tell me about it, David... I lived for over 40 years just an hour's drive away from the Getty Museum–– and have never visited it But, like you, have visited other museums all over the world
Regards,
Sarah

[AnneM]

Re Marriage by Cohab with Habit and Repute it can be difficult to fix a date of the marriage. Does the marriage date from the day when the impediment to marriage was removed or after a certain amount of cohab. Why does this matter. Well consider the following story.

Henry is a hard working and ambitious sales executive based in Aberdeen in the mid 1950s. In 1956 at a fairly early age he marries the lovely Betty and proceeds to get on with working to make a home for them.

So busy is he that he does not notice that Betty is becoming restive until the day he comes home feeling ill and finds her entertaining the next door neighbour.

Henry is horrified and amid mutual recriminations the parties separate and despite the social stigma he divorces Betty on the grounds of her adultery.

Betty slinks off elsewhere. Some months later Henry runs into Betty's little sister Susie who is terribly sympathetic and assures him that that wee tart Betty was never good enough for him. Flattered and pleased by her sympathy, he wants to keep in touch and before they know it they are in love and want to marry.

But horror of horrors this is 1958 and marriage with a divorced wife's sister is prohibited. Unable to tear themselves apart, Henry and Susie decide to start a life together elsewhere and head off for Edinburgh where, calling themselves Mr and Mrs Duncan they set up home amid unsuspecting neighbours. The years pass and they have several children. They tell no-one, not even these children that they are not married.

Now it just so happens that in 1960 an Act is passed which allows marriage to a divorced wife's sister. By this time Henry and Susie don't feel they can get married without alerting others to their previous unmarried state. In the few months after this Act comes into force, Henry does so well at work that he gets a good bonus (Yes even in the 1960s) and some shares in the company he works for. He buys a little cottage outside Edinburgh for weekends away. Being an old fashioned type all the property is taken in his name alone.

Fast forward now to the early 1990s, Henry has prospered greatly. Susie has devoted herself to his welfare and work like a good wife, entertaining clients and raising the children. Retirement is on the horizon for Henry. Despite his workaholism he has managed to keep himself in trim.

Then DISASTER!! Just when Henry is feeling a bit fragile onto the scene comes Sharon, the new young secretary. Henry is totally smitten and feels like a young man again (or in this case like a young woman!). Under the influence of lust and a mid life crisis, he abandons the ever faithful Susie and rushes off with the nubile and voluptuous Sharon.

Susie goes to her lawyer only to discover that as she was never actually married to Henry she has very few rights to financial support from him......unless she can prove a marriage by cohab, which she probably can.

The reason the date of the marriage might have some importance in this case relates to the cottage, which has now in a very desireable area and worth a considerable amount and the shares. If the marriage dates from the date when the impediment to their marriage was removed these items are matrimonial property and available for sharing. If the marriage does not commence until some months or years later then they are not. Could make a difference.

Hope I have not bored you to tears.

Anne

[Chris Paton]

Is this a River City storyline..?! lol

Interesting thread!

Chris

[sheilajim]

Hi Anne

That is a very interesting. I would think that the date would be when they went to Edinburgh. Or maybe 9 months before the birth of their first child.

But to tell the truth I don't know anything about Scot's law.

Regards

Sheila

[AnneM]

Hi Sheila

I don't think there is any guarantee of what a court would decide about when the marriage started. Having said that, I've little doubt that this is a marriage by cohabitation with habit and repute and a court would find that they were married, thus allowing Susie to divorce Henry and get her fair whack of the property plus maybe a bit of short term support.

The problem about when the marriage started is really to do with what a previous poster raised i.e. whether the cohabitation is evidence of unexpressed consent or whether it is necessary to form the marriage.

In any event the marriage cannot start until it becomes legal for Henry and Susie to marry. That means it cannot start until the Act passed in 1960 comes into force. What follows from that is that there can be possibly 2 decisions. One, that the marriage starts from the date when the marriage becomes possible legally or 2. that the marriage starts from some date after that, when the parties have been together for a long enough period of cohabitation (not usually much less than one year but has been held in one case to be as little as 10 months).

If you say that the marriage starts from the date when it became legal for them to marry then that suggests that the cohabitation is only necessary as evidence that unspoken consent was exchanged. The trouble with that view is that it would support the argument that marriage by cohab was abolished in 1939 which the cases after that date make clear that it was not!

If however the cohabitation was necessary to form the marriage then you have to put a later date on the start of the marriage because before that there would not be enough cohab to form a marriage but courts have not always done that.

The law is therefore not always or, some might say, not often logical!!

Anne

[AnneM]

Just thinking about this topic made me reflect on how you state what the law is. This is not always clear but there are some rules, the main one being that you can not make a statement about what the law of Scotland is unless you can back it up with some kind of authority. In the Scottish context there are only 3 kinds of authority:

1. Legislation

This is the most obvious i.e. a law, applying to Scotland, passed by the Westminster Parliament or nowadays the Scottish Parliament or a European directive which has direct effect or has been adopted into the national law.

2. Case Law

Decided cases in the courts. The force of the case will depend to some extent on how high the court is. So for civil matters the Sheriff Court is the lowest court, following that is the Sheriff Principal who sometimes can hear appeals from a Sheriff, the Outer House of the Court of Session (one judge sitting alone making the first decision on a case) comes next, the Inner House of the Court of Session (usually 3 but sometimes more judges sitting together hearing an appeal) comes next; finally in the domestic context comes the House of Lords which hears only appeals from appeal decisions. (We'll leave European courts aside for the sake of simplicity). If a case decided by a higher court more or less fits the facts of the case which is now under consideration the lower court has to follow the higher court's decision. As you can imagine a lot of legal energy is expended on explaining why a decision unfavourable to your case is not such a good fit that it has to be applied!!

Often nowadays decided cases are used to interpret what is meant by a certain piece of legislation but that is not always the case.

For criminal matters the line of authority runs, Sheriff, Sheriff Principal, High Court of Justiciary, High Court of Justiciary sitting as a court of Criminal Appeals (3+ judges). There is no appeal to the House of Lords on a Scottish criminal case.

3. Institutional Writers

These chaps were around mostly in the 17th but some in the 18th Century and their aim was to bring together a complete statement of that part of the law in which they were interested. The main ones were Viscount Stair, Erskine, Bell, Bankton, Hume, Allison and Mackenzie (certainly not one of mine!). Effectively they were almost codifying the Roman Law, Church Law, Customary Law, Case Law etc that existed before that time.

And that dear chaps and chapesses is that.

At one time there was a prohibition on quoting a living author in court, the reasoning being that he being still alive might change his mind on the issue and may not have given his final word but that has now changed and living authors are sometimes quoted. What you still cannot do however is quote a living author as an authoritative statement of the law. You can only offer him/her as an interpretation that the Sheriff or Judge may choose to accept as coming from a respectable and authoritative source. So you may say that Dr Clive proposes at page x that such and such a view of this provision is taken or Professor Thomson suggests at page y that this or that other reading of the legislation/case is preferable. Obviously for your submission to have any force the Sheriff or Judge must have heard of the author and believe him or her to be a serious and well thought of expert on that area of the law and not a total numpty.

If you are thinking 'surely the law is the law and there should be no need for all this interpretation' then take this simple injunction, "Thou shalt not kill".

Now ask yourself what that means. Whom or what should you not kill? Easy, another human being. Now ask yourself, does this include any or all of the following:

a very ill person who wishes his or her life to be terminated
a foetus
an embryo conceived in the womb
an embryo created in vitro
a person convicted of murder, genocide or other heinous crime
an enemy in time of war who is on active service
a civilian in a country with which you are at war
the mad axeman who is threatening you
the mad axeman who is threatening your child
the mad axeman who is threatening someone who is unrelated to you
a burgler in the night who might pose a threat to your family
etc. etc. etc.......

Please don't anyone think I'm inviting debate on the above question as there are as many answers as there are individuals and it's not appropriate to the board. I was only using it as an example.

Before you tell me this is the most boring topic on earth, I know but I just felt impelled to post it.

Anne