Scots Family Law - Marriage and Civil Partnership - Marriage - Legal Impediments To Marriage

Legal Impediments To Marriage

There are seven defined impediments to both regular and irregular marriage:

• the parties are too closely related;
• one of the parties is already married;
• one or both of the parties is under the age of sixteen;
• one or both of the parties legally lacks capacity to understand or consent to the marriage;
• the parties are the same sex;
• one or both of the parties are domiciled in another legal jurisdiction and the party is impeded from marrying on another ground in that jurisdiction; or,
• the marriage is a sham marriage.

If any of these impediments exist when the marriage is solemnised it will make the marriage void. It is not possible for a person under the age of sixteen to marry, even with parental consent. A party who lacks the capacity to understand or consent to a marriage cannot marry, although legal precedent in Scotland has established that it would take a significant degree of lack of understanding or diminished intelligence before the marriage would be considered void. Extreme intoxication due to alcohol or drugs has been accepted as grounds by courts in the past. Other legal grounds to claim a contract is void under Scots contract law, such as error, have less scope in regards to marriage. For example, a marriage contract is an exception to the general rule in Scots law that an error held by one of the parties induced by the fraudulent misrepresentation of the other makes the contract void. So, a marriage would not be void where a man married a woman because she told him she was pregnant with his child and actually she was not pregnant at all. On the other hand, grounds such as force, fear and duress will normally make the marriage void.

The only recognised ground where a marriage is voidable (i.e. the marriage exists until it is made void through a court order) is the incurable impotency of the husband. The impotency must have existed at the time the marriage was solemnised and continue to exist at the time that the wife seeks to make the marriage void. Impotency in this case is distinguished from sterility and a refusal to have sex, both of which do not make the marriage voidable.

In the situation that a marriage is void or voidable, any legitimately interested party (usually one of the parties to the marriage) can seek a declarator of nullity of marriage from the Court of Session, which will acknowledge that their marriage is void and, in effect, never existed. When making such a ruling the judge has the power to make awards for financial provision, like in a divorce.