Friday, January 9, 2009

Law of annulment in Scotland UK>

Please can you research the grounds for annulment of marriage in Scotland UK

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 search strategy nullity marriage scotland nullity marriage scots law annulment marriage scots law

#If you have any other info about this subject , Please add it free.#

Posted by cfz |

Law of annulment in Scotland UK>

Recent Posts

Archives

Categories

Blog roll

Meta