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Plenary, 15 Dec 2005

15 Dec 2005 · S2 · Plenary

Item of business

Family Law (Scotland) Bill:<br />Stage 3

McNeill, Pauline Lab Glasgow Kelvin Watch on SPTV

The doctrine of marriage by cohabitation with habit and repute was defined by the Scottish Law Commission as follows:

"If a man and a woman who are free to marry each other cohabit as husband and wife in Scotland for a considerable time and are generally regarded as being husband and wife they are presumed to have consented to be married, even if only tacitly, and, if the presumption is not rebutted, will be held to be married by cohabitation with habit and repute … without the need for a court decree".

In practice, a court decree of declarator is sometimes necessary before a third party will accept that the requirements for this type of marriage have been met.

It has been said that this form of marriage has little to commend it and that it has in reality been a way of conferring rights on cohabitants, particularly on the death of a partner. For that reason, the Scottish Law Commission and the Law Society of Scotland argue that we should abolish the doctrine.

The doctrine was used during world wars when people never got around to marrying but, to all intents and purposes, held themselves out as married. Other people have also relied on the provision. Times have changed and it is now socially acceptable to live in forms of relationship other than marriage. Given that we are to confer new rights on cohabiting couples, perhaps it is time to move on.

Some 57 per cent of people who were surveyed thought that people living in a common-law marriage had the same rights as married couples, but that is clearly not the case. The Justice 1 Committee was keen for the Executive to make it clear to couples what type of relationship they are in and what the legal consequences are. The bill provides a good opportunity for it to do so.

Before stage 1, the Executive said that it was neutral on whether to abolish the doctrine, and sought the committee's view on whether the laws in question should be swept away. By and large, the committee was concerned only about whether any couple would be disadvantaged if the doctrine were swept away. During the stage 2 debate, the committee was advised that it would, in the case of foreign marriages, still be possible for couples to rely on the doctrine, but that later turned out not to be the case.

Other members of the committee and I were concerned that there might be disadvantage, albeit in only a few cases a year, to couples who married abroad but found out later that they were not legally married in that country; such couples would no longer be able to rely on the doctrine of marriage by cohabitation with habit and repute.

I am grateful to the Executive for the dialogue that we have had on the matter. Amendment 6 would simply retain the provision for some people. Paragraph (d) of proposed new subsection (4) of section 2A states, as a condition, that

"in consequence of the purported marriage, A and B believed themselves to be married to each other and continued in that belief until B's death;

That means that we would still use the doctrine of marriage by cohabitation with habit and repute for the purposes of such marriages, on the death of one of the partners.

We should always be cautious about sweeping away a doctrine that has existed for several hundred years, even though there is consensus in the Scottish Law Commission and the Law Society that the provision is no longer required and that only a small number of people would be affected.

I hope that the Executive will support amendment 6 and I ask Parliament to do so, too.

I move amendment 6.

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Plenary, 15 Dec 2005

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