Part 1 – Marriage
Chapter 1 – Same sex marriage
Overview
5.This Chapter makes a number of changes to marriage law. In particular, it amends the 1977 Act, in relation to the “forbidden degrees” (about people who are too closely related to each other to get married) to reflect the introduction of same sex marriage; it deals with existing references to marriage and related expressions in legislation and private documents, such as wills; and it clarifies how certain common law rules will operate in the context of a same sex marriage.
Section 1: Marriage of related persons
6.This section makes a number of amendments to the 1977 Act, in relation to the “forbidden degrees”. Provision is made about the forbidden degrees in section 2 of, and Schedule 1 to, the 1977 Act. Section 2 of the 1977 Act makes various provisions about how the forbidden degrees are to operate and be interpreted. Some of these provisions refer at present to a husband and wife or make other indirect references to opposite sex marriage. Due to the introduction of same sex marriage, these provisions are amended by section 1 of the Act so that they can apply to opposite sex and same sex marriage. Section 1(2)(c) makes provision so that “spouse” means either a wife of a husband or a husband of a wife or a same sex spouse.
7.Section 1 introduces a new Schedule 1 to the 1977 Act, replacing the previous Schedule 1. Section 1(2)(d) deletes the word “former” from section 2(7) of the 1977 Act. The word “former” is not needed as the new Schedule 1 to the 1977 Act refers to “former spouse” and “spouse” is defined as outlined in paragraph 6 above. The new Schedule 1 is a simplified version of the previous table of forbidden degrees in the 1977 Act. No changes are made in respect of the types of relationships which mean that a couple cannot marry. Instead, the change relates to how the relationships are described. The table below demonstrates this:
| Previous table (Column 1) | Previous table (Column 2) | New table |
|---|---|---|
| Relationships by consanguinity | ||
| Mother | Father | Parent |
| Daughter | Son | Child |
| Father’s mother | Father’s father | Grandparent |
| Mother’s mother | Mother’s father | Grandparent |
| Son’s daughter | Son’s son | Grandchild |
| Daughter’s daughter | Daughter’s son | Grandchild |
| Sister | Brother | Sibling |
| Father’s sister | Father’s brother | Aunt or uncle |
| Mother’s sister | Mother’s brother | Aunt or uncle |
| Brother’s daughter | Brother’s son | Niece or nephew |
| Sister’s daughter | Sister’s son | Niece or nephew |
| Father’s father’s mother | Father’s father’s father | Great-grandparent |
| Father’s mother’s mother | Father’s mother’s father | Great-grandparent |
| Mother’s father’s mother | Mother’s mother’s father | Great-grandparent |
| Mother’s mother’s mother | Mother’s mother’s father | Great-grandparent |
| Son’s son’s daughter | Son’s son’s son | Great-grandchild |
| Son’s daughter’s daughter | Son’s daughter’s son | Great-grandchild |
| Daughter’s son daughter | Daughter’s son’s son | Great-grandchild |
| Daughter’s daughter’s daughter | Daughter’s son son | Great-grandchild |
| Relationships by affinity referred to in section 2(1A) | ||
| Daughter of former wife | Son of former husband | Child of former spouse |
| Daughter of former civil partner | Son of former civil partner | Child of former civil partner |
| Former wife of father | Former husband of mother | Former spouse of parent |
| Former civil partner of mother | Former civil partner of father | Former civil partner of parent |
| Former wife of father’s father | Former husband of father’s mother | Former spouse of grandparent |
| Former civil partner of mother’s mother | Former civil partner of mother’s father | Former civil partner of grandparent |
| Former wife of mother’s father | Former husband of mother’s mother | Former spouse of grandparent |
| Former civil partner of father’s mother | Former civil partner of father’s father | Former civil partner of grandparent |
| Daughter of son of former wife | Son of son of former husband | Grandchild of former spouse |
| Daughter of son of former civil partner | Son of son of former civil partner | Grandchild of former civil partner |
| Daughter of daughter of former wife | Son of daughter of former husband | Grandchild of former spouse |
| Daughter of daughter of former civil partner | Son of daughter of former civil partner | Grandchild of former civil partner |
| Relationships by adoption | ||
| Adoptive mother or former adoptive mother | Adoptive father or former adoptive father | Adoptive parent or former adoptive parent |
| Adopted daughter or former adopted daughter | Adopted son or former adopted son | Adopted child or former adopted child |
Section 2: Objections to marriage
8.Section 5 of the 1977 Act provides for situations where there is an objection to a marriage proceeding. Section 5(4) lists the legal impediments to a marriage. These include where one or both parties are already married; where both parties are of the same sex or where one or both parties are not domiciled in Scotland and marriage would be void according to the law of the party’s domicile.
9.Section 2 of the Act repeals the legal impediment of both parties being of the same sex, so that marriages between two people of the same sex can take place in Scotland, once the Act is commenced.
10.Section 2 of the Act also amends section 5(4) of the 1977 Act in relation to cases where one or both of the parties are not domiciled in Scotland.
11.The amendment makes it clear that even if a same sex marriage would be void according to the law of the domicile of one (or both) of the parties, that is not a barrier to the parties entering into a same sex marriage in Scotland.
Section 3: Preliminaries to marriage
12.This section makes some amendments to sections 3 and 7 of the 1977 Act. Section 3 of the 1977 Act makes provision about the procedures a couple must go through when they want to marry. They must submit to a district registrar a notice of intention to marry, with the prescribed fee, their birth certificates and certain other documents, which are specified in section 3 of the 1977 Act.
13.Subsection (2)(a) substitutes a new paragraph (b) in section 3(1) of the 1977 Act, to remove terms like “widow”, “widower” and “spouse”. The new paragraph instead refers to “the other party” to the marriage. Despite the change in terminology, the effect of the provision remains the same. When a marriage has ended because one of the parties has died, a person who is marrying again has to provide the death certificate of the deceased party.
14.Section 3(1) of the 1977 Act is also amended so that any person who wants to get married who has a civil partner who has died is required to submit the relevant death certificate. Section 8 of the Act amends section 3 of the 1977 Act so that if a person who wants to get married is changing from a civil partnership to a marriage, that person must submit a relevant extract from the civil partnership register.
15.Section 3(2) of the 1977 Act makes provision in cases where someone intending to get married cannot supply the birth certificate or some of the other documents required by section 3(1). In essence, a person in this position has to supply the district registrar with a declaration on why the documents cannot be submitted.
16.The obligation in section 3(2) of the 1977 Act is extended by subsection (2)(b) so that it also applies to the additional documents required as set out in paragraph 15 above. For more information on the process of changing from a civil partnership to a marriage, see the explanatory notes on sections 8 to 10.
17.Section 3(5) of the 1977 Act makes provision where one or both of the parties to the marriage is not domiciled in Scotland. Under section 3(5), such a party is required, if practicable, to submit a certificate issued by the party’s home jurisdiction which confirms that there is no legal bar to the party marrying in terms of the law of the home jurisdiction.
18.There are some exceptions in section 3(5) to the need to supply such a certificate. Subsection (2)(c) amends section 3(5) to provide that a certificate is not required if it would not be issued just because the parties to the marriage are of the same sex.
19.Section 7 of the 1977 Act allows a person who wants to marry outwith Scotland to apply to a district registrar in Scotland for a certificate in respect of a person’s capacity to marry. When applying, the person must submit certain documents to the registrar.
20.Subsection (3) amends section 7(1) so it refers also to the death certificate when a civil partnership has ended by death and an extract from the entry in the civil partnership register where civil partners are changing their civil partnership to a marriage.
Section 4: Meaning of marriage and related expressions in enactments and documents
21.Section 4 makes provision on how the term “marriage” and other expressions should be interpreted in enactments (legislation) generally, the 1977 Act specifically, the common law and private documents (such as wills). The provisions of section 4 apply only to devolved legislation – legislation that is within the legislative competence of the Scottish Parliament.
22.Subsection (1) provides that references in enactments to “marriage” and people who are or were married should be read as referring to both opposite and same sex marriage and married couples. This would, for example, apply to terms in those enactments such as “husband”, “wife”, “man and wife” and “spouse”.
Examples
Section 1 of the Divorce (Scotland) Act 1976 makes provision on the irretrievable breakdown of marriage being a ground for divorce. By virtue of section 4 of this Act, this will apply to both opposite sex and same sex marriages.
Section 1 of the Family Law (Scotland) Act 1985 makes provision on who owes an obligation of aliment. Under section 1, an obligation of aliment is owed by a husband to his wife and by a wife to her husband. By virtue of section 4 of this Act, the obligation is also owed by a spouse to his or her same sex spouse.
23.Subsections (2) and (3) make provision in respect of references in legislation to cohabitants, so it is clear they apply to same sex cohabitants too.
24.Subsection (4) provides that references in legislation to two persons of the same sex who are (or were) living together as if they are or were in a civil partnership (i.e. cohabitants) cease to have effect. Once the Act comes into force, such references will be unnecessary as same sex cohabitants will be covered by the provision made in subsections (2) and (3).
Example
Section 25 of the Family Law (Scotland) Act 2006 defines “cohabitant” for the purposes of sections 26 to 29 of the 2006 Act. The provisions at section 4(2) to (4) of this Act mean that the reference to living together as if husband and wife extends to persons of the same sex living together as if married and the reference to living together as if civil partners ceases to have effect.
25.Subsection (5) makes it clear that subsections (1) to (4) only apply to enactments, other than private Acts, passed or made before section 4 is commenced. (As outlined below, subsection (15) makes changes to the Interpretation and Legislative Reform (Scotland) Act 2010 in respect of future legislation). Subsection (5) also makes it clear that subsections (1) to (4) do not apply if the enactment or any other enactment provides otherwise.
26.Subsection (6) ensures that where being (or having been) married or in a purported marriage is relevant in the common law, the law applies equally to opposite sex and same sex marriage.
27.Subsection (8) empowers the Scottish Ministers to make an order, which due to subsection (9) will generally be subject to the negative procedure, to disapply or modify the effect of subsections (1) to (6).
28.Subsection (9) ensures that any order under subsection (8) may amend primary and secondary legislation. Subsection (10) ensures that, despite an order under subsection (8) generally being subject to negative procedure, any such order which amends primary legislation is subject to affirmative procedure.
29.For private documents which are executed after section 4 comes into force, subsection (11) provides that references in them to “marriage” or people being (or having been) married should be read as referring to both opposite and same sex marriage and married couples. This would, for example, apply to terms in private documents such as “husband”, “wife”, “man and wife” and “spouse”. Subsection (12) makes provision about the interpretation of “widow” and “widower” in documents executed after section 4 comes into force.
30.By virtue of subsection (13), subsections (11) and (12) do not apply to documents where the document provides otherwise. Therefore, if a document executed after section 4 comes into force refers to a person being in an opposite sex marriage, subsection (11) would not enable that reference to be read as meaning a same sex marriage as well.
31.Subsection (14) adds a definition of “marriage” to the 1977 Act, referring to both opposite sex and same sex marriage. Section 26 of the 1977 Act, which contains a number of definitions, makes it clear that the definitions are to apply in the 1977 Act “except where the context otherwise requires”. An example would be the separate provisions of the 1977 Act, as amended or inserted by this Act, on solemnising opposite sex and same sex marriage.
32.Subsection (15) adds definitions of “marriage”, “widow” and “widower” to the Interpretation and Legislative Reform (Scotland) Act 2010. The 2010 Act makes provision on how Acts of the Scottish Parliament and Scottish Statutory Instruments are to be interpreted. Adding a definition of “marriage” to the 2010 Act means that any references to marriage and married couples in any future Acts of the Scottish Parliament and legislation made under Acts of the Scottish Parliament will cover both opposite sex and same sex marriage and spouses, unless specific provision is made so that this is not the case. The new definitions of “widow” and “widower” make it clear that in future Acts of the Scottish Parliament and legislation made under Acts of the Scottish Parliament “widow” will include the female spouse of a deceased woman and “widower” the male spouse of a deceased man, unless contrary provision is made.
Section 5: Same sex marriage: further provision
33.This section makes provision relating to the introduction of same sex marriage and its effect on certain aspects of Scots law.
34.Subsection (1) makes provision in respect of permanent and incurable impotency. In Scotland, a marriage is voidable (i.e. a court action may be raised to challenge and end the marriage) if one of the parties is at the time of the marriage permanently and incurably impotent in relation to the other spouse. Subsection (1) provides that this rule of law only applies to opposite sex marriages.
35.Subsection (2) amends section 1 of the Divorce (Scotland) Act 1976 (“the 1976 Act”). Under the 1976 Act, there are two grounds of divorce in Scotland:
irretrievable breakdown of the marriage;
the issue, after the date of marriage, to either party of an interim gender recognition certificate under the Gender Recognition Act 2004.
36.Section 1(2) of the 1976 Act provides a number of ways in which the irretrievable breakdown of a marriage can be established. One of those ways is adultery. Adultery means in the common law sexual intercourse between a man and a woman.
37.Subsection (2) provides that “adultery” has the same meaning for the purposes of the 1976 Act for same sex marriage as it does for opposite sex marriage in that it relates to heterosexual intercourse only. This means that a spouse in a same sex marriage could, like a spouse in an opposite sex marriage, raise an action for divorce saying that the marriage has broken down irretrievably because the other spouse in the marriage has committed adultery (i.e. had sexual intercourse with a person of the opposite sex).
38.However, subsection (2) does not extend adultery to cover sexual activity between people of the same sex. Therefore, the ways of establishing irretrievable breakdown of a marriage remain unchanged. Neither an opposite sex spouse nor a same sex spouse can raise an action for divorce saying that the marriage has broken down irretrievably because the other party in the marriage has had sexual intercourse with a person of the same sex. Instead, the divorce action would have to put forward other reasons for irretrievable breakdown, such as unreasonable behaviour.
Section 6: Jurisdiction in proceedings relating to same sex marriages
39.This section introduces schedule 1 on the jurisdiction of the Scottish courts in proceedings relating to same sex marriages. This schedule is explained at paragraphs 219 to 243 of these Explanatory Notes.
Section 7: Reset: abolition of defence
40.This section repeals the defence for wives against the crime of reset. It is a crime to receive goods stolen by another. Subsection (1) abolishes the common law defence to the crime where the person accused of reset is the wife, and the goods were stolen by her husband.
41.Subsection (2) provides that the repeal of the defence to the crime of reset is abolished the day after the provision is brought into force. This means that the repeal will not affect anyone who is relying on the defence prior to this section being commenced.
Chapter 2 – Marriage between civil partners in qualifying civil partnerships
Overview
42.This Chapter relates to changing a civil partnership to a marriage and the legal effect of doing so.
Section 8: Marriage between civil partners in qualifying civil partnerships
43.Section 8 makes provision allowing civil partners, if they are in a “qualifying civil partnership”, to change their civil partnership to a marriage.
44.A “qualifying civil partnership” is defined by the amendment made by subsection (3)(b), which inserts new subsections (6) and (7) into section 5 of the 1977 Act. To be a “qualifying civil partnership”, the civil partnership must have been registered in Scotland. In addition, the civil partnership must not have been dissolved, annulled or ended by death.
45.Subsection (3) also adds provisions to section 5 of the 1977 Act about civil partnerships registered at British consulates overseas and civil partnerships registered by British armed forces personnel.
46.Such civil partnerships are to be treated as having been registered in Scotland for the purposes of determining if they are a “qualifying civil partnership”, so long as:
the parties to the civil partnership elected Scotland as the relevant part of the United Kingdom when they entered into the civil partnership; and
details of the civil partnership have been sent to the Registrar General for Scotland.
47.Subsection (2) amends section 3 of the 1977 Act so that when a couple change their civil partnership to a marriage they have to provide to the district registrar an extract from the entry in the civil partnership register relating to the civil partnership.
48.Subsection (3)(a) amends section 5(4)(b) of the 1977 Act about legal impediments to marriage. The current impediment in section 5(4)(b) is that “one of the parties is, or both are, already married or in civil partnership”. Subsection (3)(a) amends this so that being in a “qualifying civil partnership” with each other is not a legal impediment to marriage.
Section 9: Power to modify meaning of “qualifying civil partnership”
49.This section allows the Scottish Ministers to extend by order the category of civil partnerships which can change their relationship to marriage in Scotland. This power could be used to enable civil partners in a partnership registered outwith Scotland to change their civil partnership to a marriage in Scotland.
50.Subsection (2) provides the order may amend primary or secondary legislation and is subject to affirmative procedure.
51.Subsection (3) requires the Scottish Ministers to consult the Registrar General of Births, Deaths and Marriages for Scotland and such other persons as considered appropriate on a copy of the proposed draft order before laying a draft of any such order before the Scottish Parliament.
Section 10: Change of qualifying civil partnership into marriage
52.Section 10 makes provision so that qualifying civil partnerships can be changed to a marriage in accordance with an administrative procedure which may be prescribed by the Scottish Ministers in regulations.
53.By virtue of section 10(7), “qualifying civil partnership” in this section means a civil partnership registered in Scotland which has not been dissolved, annulled or ended by death (see section 5(6) of the 1977 Act, inserted by section 8(3) of this Act). The definition also includes certain overseas civil partnerships treated as having been registered in Scotland (see section 5(7) of the 1977 Act, inserted by section 8(3) of this Act). The definition could be modified by the use of the power in section 9 of the Act.
54.Subsection (2) provides that regulations may in particular make provision on:
the application process (subsection (2)(a));
the information required from the applicants (subsection (2)(b));
evidence to support the application (subsection (2)(c));
any requirement to attend at a particular place or appear before a particular person (subsection (2)(d));
conferring functions on persons (such as, for example, the Registrar General) (subsection (2)(e)). (Subsection (3) makes provision on particular functions which may be conferred);
fees (subsection (2)(f)).
55.Subsections (4) to (6) make provision on procedures in relation to any regulations made by the Scottish Ministers. Under subsection (4), the Scottish Ministers must consult the Registrar General before making any regulations. Under subsections (5) and (6), any regulations are subject to negative Parliamentary procedure unless they amend primary legislation, in which case they are subject to the affirmative procedure.
Section 11: Effect of marriage between civil partners in a qualifying civil partnership
56.This section makes provision on the effect of civil partners changing their relationship to a marriage.
57.Subsection (1) ensures that this provision applies to civil partners who change their relationship (registered in Scotland) to a marriage, regardless of whether they make this change through having a marriage ceremony (section 8 of the Act) or through the administrative route (section 10 of the Act).
58.Subsection (2)(a) provides that the qualifying civil partnership ends when the marriage is solemnised or the change took effect and subsection (2)(b) provides that the civil partners are to be treated as having been married to each other since the date on which the qualifying civil partnership was registered.
59.Subsection (2)(a) ensures that the couple do not have two civil statuses (married and in a civil partnership) at the same time. Subsection (2)(b) ensures that their time in the civil partnership is treated as if they had been married. For example, this means that provisions in the Family Law (Scotland) Act 1985, which covers matters such as financial provision during marriage and on divorce, applies to property acquired during and for the civil partnership as well as to property acquired during and for the marriage.
60.Subsection (3) defines what is meant by “registered” for the purposes of subsection (2)(b) in relation to civil partnerships originally registered at British consulates overseas or by British armed forces personnel. Civil partnerships at consulates are treated as registered when they are entered in the Register Book. Civil partnerships through the armed forces are treated as registered when the register is signed.
61.Subsection (4) makes provision so that subsection (2)(b) is subject to any contrary provision made in legislation and any order made under subsection (5). For example, provision may be needed in relation to civil partnerships which turn out to be void but are changed into marriage before it is realised that they are void so the marriage is not backdated to when the civil partnership first started. In addition, there may be a need to recognise any court decrees from outwith Scotland which relate specifically to civil partnerships. The scope of any order and its Parliamentary procedure are set out in subsection (6).
62.Subsection (7) provides that any decree of aliment requiring one civil partner to make payments to the other which is in force when a civil partnership ends because it has been changed into a marriage continues to have effect. This ensures that any reference in the decree to the civil partnership does not stop the decree from continuing to have effect.
63.Subsection (8) provides that orders under section 103(3) or (4) of the 2004 Act, which relate to the regulation by the court of rights of occupancy of the family home, which were in force during the civil partnership continue to have effect once the couple are married.
64.Subsection (9) makes consequential amendments to section 1 of the 2004 Act, which contains provision on the circumstances in which a civil partnership ends.
Chapter 3 – Solemnisation of marriage
Overview
65.This Chapter makes provision about who may be authorised to solemnise marriage in Scotland.
66.For opposite sex marriage, Church of Scotland ministers are authorised by way of the Church of Scotland being named specifically in section 8 of the 1977 Act. Other religious bodies may be prescribed by Statutory Instrument so that their celebrants are authorised to solemnise marriage. Other religious bodies can also nominate persons to be registered by the Registrar General for Scotland as celebrants under section 9 of the 1977 Act. And the Registrar General may grant temporary authorisation to individuals to solemnise a marriage or marriages under section 12 of the 1977 Act.
67.In addition, civil registrars are authorised to solemnise marriage.
68.The Act retains this system but makes provision for belief bodies to be authorised as well.
Section 12: Persons who may solemnise marriage
69.Section 12 of the Act makes amendments to the 1977 Act for several different purposes.
70.Firstly, section 8 of the 1977 Act makes provision on who is authorised to solemnise marriage. This is amended so its current provisions apply to authorisations for opposite sex marriage only.
71.Secondly, section 12 of the Act amends section 8 of the 1977 Act to allow celebrants from belief bodies to be authorised to solemnise marriages. Subsection (4) amends the existing definition of “religious body” in section 26 of the 1977 Act so that it covers belief bodies as well. The relevant aspects of the amended definition in relation to belief bodies are “an organised group of people …the principal object (or one of the principal objects) of which is to uphold or promote philosophical beliefs and which meets regularly for that purpose.”
72.Religious bodies can be prescribed under section 8 of the 1977 Act. The section is amended so that religious or belief bodies can be prescribed under this section. The effect of prescribing religious or belief bodies is that their celebrants and other persons recognised by them as entitled to solemnise opposite sex marriage can solemnise opposite sex marriages recognised by the state.
73.Thirdly, the new section 8(1A) of the 1977 Act, inserted by subsection (2)(b), provides that the Scottish Ministers may only prescribe a religious or belief body so that its celebrants are authorised to solemnise opposite sex marriage if the body requests this and if Ministers are satisfied that the body meets the “qualifying requirements”. Qualifying requirements are those set out in regulations made by the Scottish Ministers. These regulations are subject to the negative parliamentary procedure (new section 8(1G) refers).
74.Fourthly, section 12 of the Act adds a number of provisions to section 8 of the 1977 Act to allow celebrants (of religious and belief bodies) to be authorised to solemnise same sex marriage. The new section 8(1B) of the 1977 Act, inserted by subsection (2)(b), provides who may solemnise a same sex marriage. The new section 8(1C) provides that the Scottish Ministers may only prescribe a religious or belief body so that its celebrants are authorised to solemnise same sex marriage if the body requests this and if Ministers are satisfied that the body meets the “qualifying requirements”.
75.Fifthly, the new section 8(1D) provides that nothing in subsection (1B)(a) or (1C)(a):
imposes a duty on any religious or belief body to request (under section 8(1C)(a)) to be prescribed so that their celebrants can solemnise same sex marriage;
imposes a duty on any religious or belief body to nominate members under section 9 of the 1977 Act to be empowered to solemnise same sex marriage;
imposes a duty on any person to apply for temporary authorisation under section 12 to solemnise same sex marriage;
imposes a duty on a celebrant approved to solemnise same sex marriages to solemnise such marriages.
Section 13: Registration of nominated persons as celebrants
76.Section 13 makes a number of amendments to section 9 of the 1977 Act, which relates to the registration of nominated persons as celebrants. Section 9 of the 1977 Act permits the authorisation of celebrants of bodies who have not been prescribed by regulations or are not, in the case of opposite sex marriage, the Church of Scotland.
77.Subsection (2)(a) amends section 9(1) of the 1977 Act so that it just relates to opposite sex marriages. This means that section 9(1) as amended provides that a religious or belief body, other than the Church of Scotland or a body prescribed by regulations to solemnise opposite sex marriage, may nominate to the Registrar General members so that that they can solemnise opposite sex marriages.
78.Subsection (2)(b) to (l) then inserts new subsections into section 9 of the 1977 Act. The new section 9(1A), inserted by subsection (2)(b), provides that a religious or belief body who has not been prescribed by regulations to solemnise same sex marriage may nominate celebrants to the Registrar General so that they can be authorised to solemnise same sex marriage.
79.A number of amendments are made to section 9 of the 1977 Act, which provides for when the Registrar General must reject a nomination; what happens when a nomination is accepted; the register of authorised celebrants and their bodies; and for appeals. These amendments are made to take account of the introduction of same sex marriage and the authorisation of belief bodies and their celebrants.
80.Under section 9(2) of the 1977 Act, the Registrar General must reject a nomination on various grounds including if the Registrar General considers the nominating body has sufficient celebrants to meet its needs. The amendment in subsection (2)(c) amends the grounds to reflect the changes made to subsection (1) and the new subsection (1A). The amendments reflect that bodies may have different needs in relation to celebrants solemnising same sex marriage when compared with opposite sex marriage.
81.A new ground for rejection of not meeting the qualifying requirements is added to section 9(2)(e) by subsection (2)(d) to the circumstances in which the Registrar General must reject a nomination.
82.Under section 9(2) of the 1977 Act, the Registrar General must also reject a nomination on the ground that the marriage ceremony used by the nominating body is not of an appropriate form. Section 9(3) of the 1977 Act sets out that a marriage ceremony will be of an appropriate form if it includes, and is no way inconsistent with particular declarations. Subsection (2)(f) amends section 9(3) to expand upon the declarations which will be considered to be of an appropriate form in the case of a marriage ceremony between persons of different sexes.
83.Section 9(3) (as amended) permits the Registrar General to accept nominations from religious and belief bodies which use (i) only gender specific language in marriage declarations, (ii) only gender neutral language in marriage declarations or (iii) a combination of both gender specific and gender neutral language in marriage declarations.
84.Subsection (2)(g) inserts provisions about the declarations for same sex ceremonies.
85.Subsection (2)(h) makes amendments to section 9(4) of the 1977 Act, which deals with cases where the Registrar General accepts the nomination. The Registrar General must currently decide how long the period of authorisation for the nominee should be, and may decide which area the nominee may solemnise marriages in. The amendments give the Registrar General the power to restrict any nominee to solemnising marriages in specific places.
86.Subsections (3), (4) and (5) make several amendments to sections 10, 14 and 24 of the 1977 Act. Section 10 makes provision about when a celebrant’s name may be removed from the register of bodies and celebrants who are authorised to solemnise marriage. Section 14 is about the form of ceremony to be used by a celebrant. Section 24 is about offences under the 1977 Act.
87.The amendments made by subsections (3), (4) and (5) are consequential, as a result of changes made to other provisions of the 1977 Act about authorisation of belief bodies; maintaining separate registers for same sex and opposite sex marriages; creating separate declarations for same sex and opposite sex marriage ceremonies; and enabling the Registrar General to authorise a nominee celebrant for a particular place only.
Section 14: Temporary authorisation of celebrants
88.Section 12 of the 1977 Act allows the Registrar General to grant temporary authorisation to solemnise marriage to a person. Section 12(1)(a) relates to temporary authorisation for a specific marriage or marriages and section 12(1)(b) relates to temporary authorisation for a period of time.
89.Subsection (2)(a) amends the Registrar General’s power to clarify that temporary authorisations may be granted only to members of religious or belief bodies.
90.Subsection (2)(b) inserts new subsection (1A) into section 12 of the 1977 Act to provide that the Registrar General may grant an authorisation only if the religious or belief body meets the “qualifying requirements”. The “qualifying requirements” are those set out in regulations made by the Scottish Ministers (new section 12(1D)). These regulations are subject to the negative parliamentary procedure (new section 12(1F)).
91.Under section 12(1B), as inserted, temporary authorisation may be granted for opposite sex marriage only, for same sex marriage only or for both.
92.Under section 12(1C), as inserted, the Registrar General can only grant a temporary authorisation for a period of time under section 12(1)(b) to solemnise same sex marriages if the relevant religious or belief body is prescribed by regulations under section 8 so that its celebrants can solemnise same sex marriage or has nominated members under section 9 to solemnise same sex marriage.
93.Subsection (3) clarifies the existing offence under section 24(2)(c) of the 1977 Act of solemnising a marriage not covered by a temporary authorisation. The amendments made by subsection (3) have the effect that it is an offence to solemnise a marriage:
where it is not specified in a temporary authorisation;
where it is outwith the period of the temporary authorisation;
otherwise than in accordance with any terms and conditions in the temporary authorisation.
Section 15: Religious or belief marriage: further provision
94.Sections 12, 13 and 14 of this Act make provision for celebrants of belief bodies to solemnise marriage. Section 15 makes a number of consequential amendments to sections 6, 11, 13, 14 and 15 of the 1977 Act, as a result of these provisions, to reflect the authorisation of belief bodies and their celebrants.
Chapter 4 – Same sex marriage: protection of freedom of expression etc.
Section 16: Same sex marriage: protection of freedom of expression etc.
95.This section provides that the introduction of same sex marriage does not affect:
the exercise of rights of anyone to freedom of thought, conscience, religion and freedom of expression which have been conferred by the European Convention on Human Rights; and
the exercise of any equivalent rights conferred on anyone by the common law.
Chapter 5 – Other changes to marriage procedure
Overview
96.This Chapter makes a variety of changes to marriage law.
97.These include the introduction of powers for district registrars to require evidence of nationality from people wishing to get married; provisions on the timing of the issue of the Marriage Schedule; providing information to the district registrar on the ending of any civil partnership when a person is marrying outwith Scotland and is seeking a certificate about the person’s legal capacity to do so; the automatic authorisation of Church of Scotland deacons to marry opposite sex couples and allowing civil marriage ceremonies to take place anywhere agreed by the couple and the registrar, other than religious premises.
Section 17: Power of district registrar to require evidence of nationality: marriage
98.This section makes amendments to sections 3 and 7 of the 1977 Act.
99.Section 3 of the 1977 Act makes provision about the documents which people wishing to enter into an opposite sex or same sex marriage have to supply to the district registrar.
100.Subsection (2) adds new subsections to section 3 of the 1977 Act so that a district registrar may require “specified nationality evidence” in relation to the intended parties to a marriage. Guidance can be issued by the Registrar General about what evidence is required.
101.Subsection (3) amends section 7 of the 1977 Act. This amendment means that where a person wants to marry outwith Scotland and seeks a certificate about legal capacity from the district registrar, that person may be required to provide evidence of nationality.
Section 18: The Marriage Schedule
102.This section amends the 1977 Act in relation to the power to prescribe the form of the Marriage Schedule and makes a number of changes to how quickly the marriage schedule and a certificate of no impediment should be issued after notice of intention to marry has been submitted by the parties to an intended marriage.
103.Subsection (2) amends section 6 of the 1977 Act so that regulations prescribing the form of the Marriage Schedule may make different provision for different cases or circumstances. This would, for example, allow the Marriage Schedule to take one form for opposite sex marriage and another for same sex marriage.
104.Section 6(4)(a) of the 1977 Act provides that a district registrar shall not issue a Marriage Schedule within 14 days of receiving a marriage notice. A Schedule may be issued earlier, on a specified date, where there is a written request and the Registrar General authorises the registrar to issue the Schedule on the specified date. The amendment at subsection (2)(b) changes the 14 day period to 28 days.
105.Section 7 of the 1977 Act relates to the issue of a certificate of no impediment to marry where a person residing in Scotland intends to marry outwith Scotland. Section 7(2) provides that the certificate shall not be issued earlier than 14 days after receiving the marriage notice. The amendment at subsection (3) changes the 14 day period to 28 days.
106.Section 19 of the 1977 Act provides that an authorised registrar shall not solemnise a marriage within 14 days of receiving a marriage notice. The amendment at subsection (4) changes this period to 28 days. An exception in section 19(1) of the 1977 Act allows the marriage to be solemnised earlier, on a specified date, where there is a written request and the Registrar General authorises the registrar to solemnise the marriage on the specified date.
Section 19: Marriage outside Scotland: evidence of dissolution of former civil partnership
107.This section amends section 7 of the 1977 Act. The effect of the amendment is that where a person wants to marry outwith Scotland and seeks a certificate about the person’s legal capacity from the district registrar the person must provide a copy of the decree of dissolution or annulment of any civil partnership which the person has previously been in.
Section 20: Religious marriages: solemnisation by Church of Scotland deacons
108.This section amends the provisions of section 8(1)(a)(i) of the 1977 Act about automatic authorisation of ministers of the Church of Scotland in respect of opposite sex marriage. The effect is that Church of Scotland deacons, like Church of Scotland ministers, are automatically authorised to solemnise opposite sex marriage.
Section 21: Places at which civil marriages may be solemnised
109.This section makes amendments, principally to section 18 of the 1977 Act, so that civil marriage ceremonies can take place anywhere, other than in religious premises, agreed by the couple and the registrar, rather than at “approved places” (places approved by the local authority). This section applies to both opposite sex and same sex marriages. The section provides definitions for “appropriate place”, “local registration authority” and “religious premises”.
110.Specifically, these amendments mean that a civil marriage ceremony can take place in either:
the registration office of the authorised registrar; or
at an appropriate place in the registration district of the authorised registrar; or
with the approval of the Registrar General, at the registration office of another authorised registrar; or
with the approval of the Registrar General, at an appropriate place in the registration district of another authorised registrar; or
with the approval of the Registrar General, at an appropriate place in Scottish waters.
111.As a result of the above, some amendments are necessary to the 1977 Act. Section 18A (on approved places) is repealed. Section 19 (on the marriage ceremony and registration) and section 26 (on interpretation and definitions) are amended where they refer to the place where a marriage has taken place. Those amendments are made in subsections (3) to (5).
Section 22: Second marriage ceremony: form of endorsement
112.This is a minor amendment to section 20 of the 1977 Act. This makes provision for a couple to go through a second marriage ceremony in Scotland if they have already married outwith the United Kingdom but there is some doubt about the validity of the overseas ceremony. The second marriage ceremony in Scotland must be civil in nature.
113.Section 20 of the 1977 Act sets out the process for a second marriage ceremony. Section 20 currently provides for an endorsement to be made to the Marriage Schedule by the authorised registrar, and the wording of that endorsement refers to years starting “19” reflecting only the 20th century. The amendment made by section 22 repeals those figures.
Chapter 6 – Sheriff court jurisdiction in relation to declarator of marriage
Section 23: Sheriff court jurisdiction in relation to declarator of marriage
114.A declarator of marriage is a court judgment that a valid marriage exists, or existed, between two parties.
115.Section 23 clarifies the jurisdiction of the sheriff court in relation to declarators of marriage. It does so by amending section 8 of the Domicile and Matrimonial Proceedings Act 1973 (“the 1973 Act”).
116.The amendments made by section 23 of the Act to the 1973 Act only relate to opposite sex marriage. Paragraph 1(2) of schedule 1 to this Act disapplies section 8 (and section 7) of the 1973 Act in relation to same sex marriage. Schedule 1 to the Act makes provision on the jurisdiction of the Scottish courts in relation to same sex matrimonial court actions, including declarators of marriage.
117.By virtue of the amendments made by section 23(2) and (3), the sheriff court has jurisdiction in declarator of marriage cases when either party to the marriage (a) is domiciled in Scotland when the action is raised or (b) was habitually resident in Scotland for a year before the action is raised or (c) died before the date when the action is raised and at death was domiciled in Scotland or had been habitually resident in Scotland for a year. In addition, either party to the marriage must have been:
resident in the sheriffdom for a period of 40 days before the court action is raised; or
resident in the sheriffdom for at least 40 days ending not more than 40 days before the court action is raised and with no known residence in Scotland when the action is raised.
