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Justice 1 Committee, 02 Nov 2005

02 Nov 2005 · S2 · Justice 1 Committee

Item of business

Family Law (Scotland) Bill: <br />Stage 2

Henry, Hugh Lab Paisley South Watch on SPTV

I regret that I inadvertently misled the committee about the impact of the abolition of marriage by cohabitation with habit and repute on couples who marry abroad in good faith and subsequently discover the marriage to be invalid. Although such people will retain access to legal redress, it will not be as I described to the committee at the previous meeting. As the convener indicated, the correct position is that which is detailed in my letter of 20 October to the committee. I am still convinced, however, that the decision to abolish irregular marriages was the correct one. We cannot justify retaining an obsolete law simply to cater for circumstances as unusual as those described. I note and will reflect on what members said. However, at this stage it would be wrong to give an absolute commitment that we will lodge an amendment of the nature suggested by Jim Wallace. I would not commit myself to lodging an amendment if I thought that it would be inappropriate to do so. If, on reflection, we think that that position has some validity, we will lodge an amendment. However, I will give the convener early warning of our decision so that if any committee member then wishes to lodge their own amendment, they will have time to do so. As things stand, we are not persuaded, but we will look at the matter again.The change will not impact on people who already find themselves in the position described; the provision will not be retrospective. Notwithstanding what has been said, there must be some onus on the individuals who take the important step to marry in future. They should check that they are married in accordance with the law of the land in which the ceremony takes place. I find it peculiar that we are trying to legislate to remedy a fault that occurs when people have not taken appropriate steps to ensure the validity of their marriage. That could apply in all sorts of circumstances—people could say that they did not fully understand the law of a foreign land and that they now wanted Scots law to remedy the problem.For our part, we will ensure that information provided to couples who consider that route as an option continues to emphasise the importance of making sure that all the correct steps are followed and that the marriage must be legally constituted according to Scots law. It will also spell out the consequences of failing to do so. I am not persuaded by the suggestion that we should make some adjustment to the private and international law aspects of the bill to accommodate such situations. It would not be appropriate or desirable to empower Scottish courts to declare a foreign marriage valid under Scots law if the marriage in question had not been constituted in accordance with the law of the land in which it took place. As I said, I will reflect on what has been said and take into account the points that have been made by members, but I can give no guarantees at this stage because I am not persuaded by the arguments at present. However, I will give the committee an early indication of our decision.

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Justice 1 Committee, 02 Nov 2005

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