Question
Untitled item
S6W-23748 · Written Question · lodged by McArthur, Liam
Lodged on
07 Dec 2023Heard / answered on
20 Dec 2023To ask the Scottish Government, further to the answer to question S6W-23651 by Siobhian Brown on 7 December 2023, as part of its plans to consult on marriage law reforms, whether it will consult on abolishing for opposite-sex couples, as well as same-sex couples, the rule that marriage is voidable by reason of impotence.
The answer
The Scottish Government has no plans to do so. The consultation planned for 2024 will, in relation to divorce and dissolution, cover court procedures rather than the grounds of divorce and dissolution or how a marriage can be voided.
The Scottish Law Commission’s 1992 Report on family law (SLC 135) (scotlawcom.gov.uk) recommended that marriages should not be voidable on the ground of impotency (see paragraphs 8.21 to 8.29). The then Scottish Executive indicated in its 2000 White Paper Parents and Children that it did not intend to take forward this recommendation noting that “the concept of a voidable marriage on this ground in civil law would provide a solution to couples who would otherwise be required to seek divorce, against their religious beliefs.”
This matter was further considered in the consultation on the draft Bill which became the Marriage and Civil Partnership (Scotland) Act 2014. Paragraph 139 of the Policy Memorandum for the Bill as introduced said “Consultees suggested that impotency should be abolished as grounds for voiding a marriage. However, other consultees suggested that the concept of “voidable” marriages can have some advantages, particularly for those who might wish to enter another marriage but might not be able to do so (on religious grounds) if they were divorced.”
The Scottish Government’s understanding is the rule that a marriage is voidable by reason of permanent and incurable impotency is little used. However, it is possible that abolishing it could remove an option for some couples.
The Scottish Law Commission’s 1992 Report on family law (SLC 135) (scotlawcom.gov.uk) recommended that marriages should not be voidable on the ground of impotency (see paragraphs 8.21 to 8.29). The then Scottish Executive indicated in its 2000 White Paper Parents and Children that it did not intend to take forward this recommendation noting that “the concept of a voidable marriage on this ground in civil law would provide a solution to couples who would otherwise be required to seek divorce, against their religious beliefs.”
This matter was further considered in the consultation on the draft Bill which became the Marriage and Civil Partnership (Scotland) Act 2014. Paragraph 139 of the Policy Memorandum for the Bill as introduced said “Consultees suggested that impotency should be abolished as grounds for voiding a marriage. However, other consultees suggested that the concept of “voidable” marriages can have some advantages, particularly for those who might wish to enter another marriage but might not be able to do so (on religious grounds) if they were divorced.”
The Scottish Government’s understanding is the rule that a marriage is voidable by reason of permanent and incurable impotency is little used. However, it is possible that abolishing it could remove an option for some couples.
Answered by Siobhian Brown on 20 Dec 2023.