Irregular Marriages

[joette]

No not boring totalty fascinating.I may need a Philidelphia Lawyer to understand it all but I am always very proud of the Scottish legal system.I know it is not perfect but to me it seems to be based on sound common sense & usually logic.More fair than other systems & dare I say in terms of Marital.inheritance,legitamising of off-spring much fairer than its near neighbour!-historically and/or presently.

[SarahND]

Hi Anne,
It just goes to show that everything is relative when it comes to human behavior. We are not so logical as we might like to think Although why we would like to think that is another question-- it is not obvious to me that there is virtue in applying rules blindly with no regard to the context and precedent. Certainly, in language, context is paramount.

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

At least it makes me feel better after Russell made comments about my posts being incomprehensible when they get the tiniest bit technical
Regards,
Sarah

[Russell]

Hi Sarah and Anne

I didn't say Sarah's explanations were incomprehensible. They are a bit like Scots Law. It takes quite a bit of exlanation to understand and really needs exemplars to make certain points clear. At least with Law it can be articulated in words whereas Sarah's specialty needs an aural component to make a point.
Can you imagine the babble though if we were all equipped with microphones too

Russell

[emanday]

Can you imagine the babble though if we were all equipped with microphones too

Hivvins The mind boggles

[Lorna Allison]

Been absent for a long while and just getting up to date.

Re David's comment on the Burrell, I have to pass on my treasured memory of my first visit to same when Glaswegians were so enamoured of the new acquisition and flocking there in thousands.

I'm standing with many others beside a frail rug raised on a low platform surrounded by cord with a notice saying "17 Century Indian Hunting Carpet". Beside me was a Corporation bus driver in full regalia accompanied by his wife, to whom he turned and said :

"See, he'd haud oan tae things we'd a thrown oot"

Brilliant, eh?

Lorna

[AnneM]

Hi Sarah, Russell and all

I've always thought discussions on language were fascinating. After all it is how we define the world around us. Also, interpreting the law is all about the use of language, to include, to exclude etc with the option to take a narrow or a wide interpretation of any decision or statute.

Indeed there is no such thing as a value free use of language and every time we make a choice conscious or unconscious about what word or combination of words we use we are reflecting our own values.

It's also intriguing how we make instant judgements about someone simply by hearing his or her voice, his or her use of language and intonation and indeed his or her pronounciation.

Keep informing us about language when you can Sarah and the likes of Russell and me will try to understand you, honest!

Anne

[SarahND]

It's also intriguing how we make instant judgements about someone simply by hearing his or her voice, his or her use of language and intonation and indeed his or her pronounciation.

Hear, hear! We do this all the time unconsciously–– it was one of the things I was always trying to impress on my students when I taught Sociolinguistics. Nowadays, most of us like to think that we are free from such "unjust" judgements, but it isn't so It is nearly impossible not to make those instant assessments of the person, their level of intelligence, their morality (!) all based on the sound of their voice.

When speaking foreign languages and being judged by native speakers, fair or not the pronunciation always wins out-- it works in a positive as well as a negative way. When I went to India as a university student, and was just learning the language, everyone assumed I spoke fluently because, as a phonetician, I could pronounce it well! Never mind that I hadn't a clue what I was saying On the other hand, another woman who really did know the language and had been there for several years, unfortunately had a terrible accent. No one could understand what she said and they assumed she didn't know what she was saying either. We solved this when we went together into town: 1) she would tell me what to say, 2) I would say it, 3) the person would answer back and 4) she would tell me what they said Worked like a charm, but a bit time-consuming
Regards,
Sarah

[vizagriz]

The accepted view, including decided case law, is that marriage by cohab with habit and repute survived the 1939 Act. There is a respectable argument that it was abolished by implication but the authorities are clearly otherwise.

As you say there is a certain degree of confusion about whether the cohab with the repute provided evidence of the marriage by consent or constituted the marriage. The more recent authorities suggest the latter though that is not strictly logical.

Anne

I think where the confusion arises is this:
1. marriage by cohabitation and repute BY ITS VERY NATURE had neither witnesses to any declaration, nor any documentary evidence. Therefore it is not a form of marriage, but evidence that there HAD BEEN a marriage. That idea goes back to the early 1500s
2. Any marriage by promise, where there is evidence of it, necessarily involves witnesses; so you can't combine that with cohab and repute.
3. The reason it was not specifically mentioned in the 1929 Act is that it didn't have to be - because it was not a form of marriage per se. It was evidence that a marriage had taken place and was therefore covered under the provisions dealing with the other "irregular" forms.

Now here's a cracker - a marriage before a Minister, but without prior proclamation of banns, was quite popular and, of course, valid, since it was a promise before witnesses. Canongate marriages (mostly in that coaching pub up a vennel whose name I forget but may well be The White Horse), were a thriving business. Very similar to "Fleet Marriages" (in the Chapel of Fleet Prison, London).
There is a difference between a VALID marriage and a LEGAL marriage. You could, for example, outlaw marriages by anyone not a minister of the established church (which happened at various times) and while taking part in them, celebrating them and even being a witness at one was an offence under law, the marriage was no less valid. What matters is the promise.
All good stuff, eh?

Bruce Durie

[AnneM]

Hi Bruce

That's certainly logical but there are a couple of problems:

1. the courts have not treated that as the case and have found plenty of marriages by cohab with habit and repute to have been established since 1940

2. It is not possible to say categorically that to prove a marriage by consent you need witnesses to the exchanging of consent. Someone trying to prove the marriage could call other evidence in aid such as a letter from the alleged spouse saying, "Do you not remember the day we exchanged our vows to each other" or similar sludge or produce an entry in a diary or could call witnesses to the fact that the alleged spouse had later said to other people that he had exchanged consent to marry with x.

3. Equally I don't think it follows that because there are no witnesses to the formation of a marriage by cohab with habit and repute nor documentary evidence of it that it is not a form of marriage.

The difficulty is that the concept is not really very logical and was probably only retained (which it does actually seem to have been) in order to provide relief for people who had cohabited as husband and wife for a long time without benefit of clergy or whatever and who would therefore have few rights and whose children would be illegitimate, which in those days had implications for succession, which it does not now.

My understanding is (and I am working at the disadvantage of being in South Africa and not at home and therefore without access to my books) that even before the 39 Act there was some debate about whether marriage by cohab etc was a means of constituting a marriage or whether the cohab and repute was merely evidence of tacitly exchanged consent.

Must head off for lunch!

Anne

[vizagriz]

Hi Bruce

That's certainly logical but there are a couple of problems:
1. the courts have not treated that as the case and have found plenty of marriages by cohab with habit and repute to have been established since 1940

2. It is not possible to say categorically that to prove a marriage by consent you need witnesses to the exchanging of consent. Someone trying to prove the marriage could call other evidence in aid such as a letter from the alleged spouse saying, "Do you not remember the day we exchanged our vows to each other" or similar sludge or produce an entry in a diary or could call witnesses to the fact that the alleged spouse had later said to other people that he had exchanged consent to marry with x.

3. Equally I don't think it follows that because there are no witnesses to the formation of a marriage by cohab with habit and repute nor documentary evidence of it that it is not a form of marriage.

The difficulty is that the concept is not really very logical and was probably only retained (which it does actually seem to have been) in order to provide relief for people who had cohabited as husband and wife for a long time without benefit of clergy or whatever and who would therefore have few rights and whose children would be illegitimate, which in those days had implications for succession, which it does not now.

My understanding is (and I am working at the disadvantage of being in South Africa and not at home and therefore without access to my books) that even before the 39 Act there was some debate about whether marriage by cohab etc was a means of constituting a marriage or whether the cohab and repute was merely evidence of tacitly exchanged consent.

Anne

There are a couple of added niceties, though. It's all about juridical proof.

1. If there has been intercourse, and a betrothal (promise) is alleged, does the act of intercourse CONVERT the promise into a marriage or CREATE an indissoluble pre-contract which would require church solemnization or a court decree? Ever since a judgement of 1917, it has been the first - the marriage is made by that (Matrimonia praesumpta)

2. Where co-habitation and repute could be shown prior to 1939, the courts would accept that as evidence of marriage, like any irregular form.

3. Post 1940, for a decree of Declaration of Marriage to be given, and a marriage by co-hab. and repute to be registered, there would have to be evidence of such prior to that.

So it's one thing to assert marriage by C&R, another to have it registered by decree.

I askeed a family lawyer (now working in GROS) about this and his helpful response was "ask three lawyers about that and you'll get four opinions and a reserved jusgement". Helpful, as I say.

I think the best book on this is still Ronald Ireland's "Husband and Wife" in "Introduction to Scottish legal History" (Stair Society 1958). He cites a rule that intercourse must have followed on the faith of a promise, which usually excluded cases where there had been prior co-hab. and repute, and that the promise must be proved by writ or oath, which required either written evidence, or witnesses.

B Durie