So you think you’re married? By all means, if you have a marriage certificate then, absolutely, you are. However, there is still a strong continuing belief in Scotland that there is such a thing as a ‘Common Law Marriage’.
‘Common Law Marriages’ were known throughout the legal profession as ‘Irregular Marriages’. In the past Scottish Law identified a number of occasion which would equate to an ‘Irregular Marriage’. These were:
- Marriage de presenti – Marriage by present consent between the couple, but with no witnesses or procession
- Promise de copula – Where marriage has been promised then followed by consummation; and
- Cohabitation with habit and repute – Where a couple lived together for a number of years and saw themselves as spouses.
The first two forms of Irregular Marriage were revoked in January of 1940. This occurred after the passing of the Marriage (Scotland) Act 1939. After 1940 no-one would be able to apply to court in order to have their de presenti or Promise de copula marriage certified. However, if either of these irregular marriages had formed prior to 1940 then the marriage could be enforced.
The irregular marriage by way of cohabitation with habit and repute can trace it’s roots to Cannon Law. Cannon Law is also known as Church Law. In 1563 the Council of Trent's – the body responsible for creating Cannon Law made a decree, the ‘decree Tametsi’, This decree brought an end to marriage by way of cohabitation with habit and repute in all states which followed Cannon Law. However, Scotland had revoked Papal Jurisdiction only three years earlier. Due to this the Decree had no impact on Scots Law and accordingly irregular marriages in Scotland as well as the previous Cannon Law was still in effect. This meant that the Scottish Courts were well within their right to continue to enforce an irregular marriage by way of cohabitation with habit and repute when an application was made. This remained the case even after 1940 as the Marriage (Scotland) Act 1939 focused purely on de presenti and Promise de copula. An irregular marriage by way of cohabitation with habit and repute remained enforceable until 2006.
In 2006 the Family Law (Scotland) Act 2006 came into force and brought Scotland in line with the rest of the UK as well as the rest of Europe. The Act did this by revoking irregular marriages by way of cohabitation with habit and repute. Section 3(1) of the Family Law (Scotland) Act 2006 quite simply states that:
“The rule of law by which marriage may be constituted by cohabitation with habit and repute shall cease to have effect.”
The impact and intention of this law is clear: As of 2006 any person living with their unmarried partner, can no longer apply to the court in order to enforce an irregular marriage by way of cohabitation with habit and repute. This is the ‘Common Law Marriage’ that many often refer to and as of 2006 this form of Marriage ceased to exist.
It is important to know that cohabitants do not have the same rights to that of a married couple.
The Family Law (Scotland) Act 2006 does make provision for cohabitants in the event that one cohabitant were to predecease the other without a Will. The provisions in the Act do not give you full protection regarding your assets. Regardless to the provision the estate would be intestate and accordingly it would follow the laws of intestacy.
The Laws of intestacy would give your partner prior rights under the The Family Law (Scotland) Act 2006; However, they are not entitled to any legal rights and the laws of intestacy dictate that the residue of the estate would go to your children, or your parents and and siblings in the event that you have no children. If your parents and siblings have predeceased you then the laws of intestacy allow for a spouse or civil partner to get the residue of the estate. However, This does not apply to cohabitants. If you believe you are in a common law marriage you could be taking a huge risk if you wish your partner to get the whole of your estate. Whether you are married or not, if you pass away without a Will your spouse, civil partner or partner may not get what you wish them to get.
There is one sure-fire way to ensure that anyone whom you want to benefit from your estate can do so. This is by way of a Will – a Will is a safety net. It ensures that your wishes are followed once you have passed away. It also removes certain procedures which would have to take place in the event that you pass away without a Will; such as appointing executors. This can be a very stressful thing to do for your family as the process involves having to petition the court and getting them to approve the appointed executor. Further to this you can use a Will to appoint a guardian to look after your children. By completing a Will you would not be required to go to court for these things and you can direct your executors to make over any items or money to any person you wish.
