MARRIAGE (SCOTLAND) BILL [Lords].

Part of the debate – in the House of Commons at on 30 March 1939.

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Photo of Mr John Colville Mr John Colville , Midlothian and Peeblesshire Northern

I beg to move, "That the Bill be now read a Second time."

This Bill is to amend the law governing marriage in Scotland, that is to say civil marriage, for at the very start I wish to make it clear that the Bill in no way interferes with the existing law or practice in regard to marriage by religious ceremony. In Scotland marriages by religious ceremony constitute almost 90 per cent, of the marriages registered, and they are outside the scope of the Bill altogether. The Bill does not deal with religious ceremonies at all. Marriages which are celebrated after banns or after notice given to a registrar are known in Scotland as regular marriages. What the Bill is concerned with is the type of marriage known as "irregular"

For all practical purposes the irregular marriage in Scotland is a marriage by exchange of consent. The principle of Scots law now is that marriage is constituted merely by an interchange of consent. Nothing more is necessary to a valid marriage—no notice, no formality and no record of any kind, and that is an important point. Until 1856 the sole requirement was that the parties should be legally capable of contracting a marriage. This, however, led to run-away marriages by young people south of the Border, and to check these marriages the Marriage (Scotland) Act was passed in 1856. That Act required that one party to a marriage should either have his or her usual place of residence in Scotland at the date of the marriage or have lived there for 21 days previously. There is no other condition besides that.

There has been a growing feeling that the law on this matter left much to be desired. One of my predecessors as Secretary of State, the late Sir Godfrey Collins, set up in 1935 a committee presided over by Lord Morison to inquire into and report upon the law of Scotland relating to the constitution of marriage and to recommend what changes, if any, were desirable. The committee made a full investigation and reported at the end of1936. It cannot be said that full deliberation has not been given to this very important and rather difficult problem of altering what has been the law for many years in Scotland. The principal recommendation of the committee is that marriage merely by exchange of consent should be abolished and replaced by a simple form of civil marriage, to be contracted in the office of an authorised registrar of births, marriages and deaths, after publication of due notice of intention to marry. No doubt hon. Members have read the report of the committee. What are the considerations which led the committee to this view? I will state them briefly. The evil consequences of marriage by consent, tend to fall into two categories—the evils which may arise from lack of formality, and those which arise from the absence of a proper record.

After all, marriage is among the most important transactions known to the law, and it is indefensible that such a contract can be made simply by the private interchange of consent. But it is far from being a question only of mere legal propriety. It may, for example, turn out some considerable time after a supposed marriage by interchange of consent that the marriage is not a marriage at all. One party may not have been legally capable of contracting marriage. Here the requirement of 21 days' residence in Scotland may prove to be not a safeguard but a stumbling block. The lack of this qualification will invalidate the marriage and may ruin the life of an innocent party. It is within the knowledge of those who practise the law in Scotland that such cases take place. Again, lack of a proper record may make proof of marriage very difficult indeed when it is most important that its validity should be established. If such a marriage is not registered and is disputed it can only be established by proof in the Court of Session of the declaration of consent made by the parties. This proof may obviously be attended by very great and sometimes insurmountable difficulties. Even if the marriage is not disputed, there are many occasions on which it is important to be able to produce proof of marriage, as in the case of a claim for a widow's pension. Those who are accustomed to the administration of that part of our social services will agree that it is of the greatest importance to have accurate proof of a marriage.