Hello toshie
Thanks for your question. Before I start to answer it, I just need to
point out what you probably already know: we cannot give professional
legal advice, but are happy to offer you the results of our research.
Annulment of marriage is called "nullity of marriage" in Scots law.
Asking a court to declare a marriage null or void, is called asking
for a "declarator of nullity".
At present some of the grounds for a "declarator of nullity" are spelt
out in statute law, and some depend on common law. The Scottish Law
Commission has been trying to "tidy up" this situation and has been
proposing changes to the law for the last decade. Because of this, the
clearest information actually comes from reading the report with their
recommendations, bearing in mind that we are looking for the current
situation, not their hopes for the future.
For a marriage which took place in Scotland, grounds to declare
nullity are:
1 One partner was already married when the ceremony took place.
2 One partner was under 16.
3 Both partners are the same sex.
4 The partners are too closely related, "In the case of blood
relationships this means that a person cannot marry his or her parent,
grandparent, or great-grandparent; child, grandchild or
great-grandchild; brother or sister; uncle, aunt, nephew or niece."
5 The formal requirements have not been followed, e.g. registration
procedures.
6 Absence of consent by one partner, including mental incapacity,
duress or "mental reservation" (see below).
7 Impotence
You'll find further discussion of this, including other "prohibited
degrees of closeness", here:
http://www.scotland.gov.uk/library2/doc11/rfl-04.asp
Note that one slightly surprising variation on the "absence of
consent" is the "mental reservation", where one partner has no genuine
intention of becoming truly married.
"A marriage is also void in Scots law if the parties, even although
consenting freely to go through a marriage ceremony and in no error,
had at the time of the ceremony a mental reservation to the effect
that a legal marriage would not result from the ceremony. For example,
the parties may have tacitly withheld consent to be married by a civil
ceremony because they believed a religious ceremony to be essential
for their religious purposes, or because they were going through the
ceremony merely for immigration purposes. Although this rule is
consistent with the traditional view that true consent, and not merely
the external appearance of consent, is essential for the constitution
of marriage it is open to the objection that it allows parties to use
the Scottish marriage law and Scottish marriage ceremonies cynically
for their own purposes. In the case of Akram v Akram Lord Dunpark was
clearly unhappy with the state of the present law but was forced to
grant the decree of declarator of nullity sought.
[...]
Scots law seems to be peculiarly generous in relation to such sham
marriages. "
The Scottish Office has also published a document comparing the
situation now with the Scottish Law Commission's draft proposals.
(sections 4.6.1.- 4.6.8)
http://www.scotland.gov.uk/library/documents-w8/isfl-05.htm
* * * *
Further points to consider:
It is quite rare for cases of this kind to come before Scottish
courts.
"There are only about 8 actions for declarator of nullity of marriage
a year in Scotland on average"
http://www.scotland.gov.uk/library2/doc11/rfl-05.asp
"Nullity of Marriage
The marriage that never was. Although rare in Scotland we have
experience of dealing with them successfully."
://www.google.co.uk/search?q=cache:Kk6uVBtANLMJ:www.brodies.co.uk/text/services/family_law_11.asp+site:.www.brodies.co.uk+nullity&hl=en&ie=UTF-8
If someone is married abroad, the marriage may not necessarily be
declared null under Scots law even if it would have been illegal had
it taken place in Scotland. If it was legal in the country where the
marriage took place it may be considered valid in Scotland. For
example:
"Validity and effect in Scots law of potentially polygamous marriages.
7.—(1) A person domiciled in Scotland does not lack capacity to enter
into a marriage by reason only that the marriage is entered into under
a law which permits polygamy.
(2) For the avoidance of doubt, a marriage valid by the law of
Scotland and entered into—
(a) under a law which permits polygamy; and
(b) at a time when neither party to the marriage is already
married,
has, so long as neither party marries a second spouse during the
subsistence of the marriage, the same effects for all purposes of the
law of Scotland as a marriage entered into under a law which does not
permit polygamy."
http://www.hmso.gov.uk/acts/acts1995/Ukpga_19950042_en_3.htm
The European Communities (Matrimonial Jurisdiction and Judgments)
(Scotland) Regulations 2001 has defined exactly who may bring an
action for declarator of nullity in a Scottish Court here:
http://www.hmso.gov.uk/legislation/scotland/ssi2001/20010036.htm
However, for practical purposes these regulations did not bring much
change. Nullity of marriage does not crop up much in the Scottish
courts and at least one of the partners must have been resident in
Scotland for at least the past year.
Just one further technical legal point for amusement only. If someone
is descended from George II, his/her marriage may be declared null if
the sovereign did not consent to it.
I hope this gives you all the information you need. Please feel free
to get back to me with a request for clarification if anything needs
further explanation and I'll do my best to help.
Regards - Leli
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