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FAMILY
54 :
The Journal: December 2005
Marriage by cohabitation with habit and repute is finally
to be consigned to the history books
In a surprise move, the Scottish
Executive has announced the
impending abolition of marriage by
cohabitation with habit and repute
(“MCHR”). Not before time,“common
law marriage” is to be a thing of the
past.
Irregular marriage was abolished in
England and Wales by Lord
Hardwicke’s Act of 1753. Hardwicke
acted against the “scandal” of marriage
being carried out in informal and
boisterous circumstances, but the
crucial problem was that young people
could marry without parental consent.
Scotland resisted Hardwicke’s attempt
to end irregular marriage in Scotland
in 1755, and so running away to
Scotland to get married would
become something of a fashion, and a
scandal, over the years. Furious redfaced
English fathers (and presumably
some mothers) pursued their
wayward offspring in a race to the
Scottish border where marriage could
be had over the anvil at Gretna
without parental consent.
The role of consent
Irregular marriage has its roots in
medieval canon law where the central
question was always the consent of
the parties.The most straightforward
way of marrying was by present
consent (marriage de presenti). No
publicity, no expense and no
interference from your family or
community.
The second form was marriage by
promise followed by intercourse
(promise subsequente copula); surely
no respectable woman would have
proceeded otherwise? Both of these
forms were abolished for the future by
FAREWELL THEN
COMMON LAW
MARRIAGE
the Marriage (Scotland) Act 1939,
though it remains possible to seek
declarator of marriage where the acts
took place prior to 1 July 1940.
The third form, if it is indeed a
separate form, is marriage by
cohabitation with habit and repute. In
pre-tridentine canon law, if a couple
lived together and presented
themselves as married for an extended
period of time, there was a
presumption that they had exchanged
consent.
The departmental committee set up
to consider Scots marriage law in
1936 concluded that MCHR should go
along with the “other” forms of
irregular marriage. Informal
arrangements were too doubtful a
basis on which to establish rights to
newly introduced welfare benefits,
especially widows’ pensions. But
Parliament clearly decided that MCHR
should stay: what is not at all clear is
the basis for its remaining part of Scots
law. If, as David Sellar argues (in Carey
Miller and Meyers, Comparative and
Historical Essays in Scots Law (1992)),
MCHR was merely proof of consent,
the abolition of marriage de presenti
and by promise subsequente copula
would mean that MCHR was proof of
something that could not, in any event,
found marriage. On the other hand,
Eric Clive argues (Husband and Wife,
paras 05.022-026), in part because
MCHR clearly still exists, that it must at
some point have become a form of
irregular marriage in its own right.
Difficulties in recent cases
What is certain is that the courts have
not quibbled over the continuing
existence of MCHR, even if they fail to
enlighten the rest of us as to what
basis it has in law.
Two recent cases highlight the
problem with MCHR.The Inner House
considered a dispute between a
purported widow and the defunct’s
executors in Ackerman v Logan’s
Executors 2002 SLT 37. Ms Ackerman
had lived with Mr Logan for four years
until his sudden death in 1998 and
gave evidence of a “wedding ring” and
a honeymoon. She said that she was
introduced to, and was treated by,
friends and associates of Mr Logan as
his wife. However the Lord Ordinary
found that they had merely been
engaged to be married and that their
reputation as being married fell far
short of the general repute that was
required.The Inner House found the
Lord Ordinary entitled to so conclude.
Is it possible that Mr Logan wanted
Ms Ackerman treated as his wife?
Might she deserve some element of
financial provision? From the case
report, these questions might be
answered in the affirmative. Had she
been formally married her position
would be clear. Had she been a
“mere” cohabitant her position would
be clear. As it was, her status was
radically uncertain and the court was
obliged either to find Ms Ackerman
married and entitled to a large part of
the estate or find her unmarried and
entitled to nothing at all.
In October’s Journal, long-time critic
of MCHR, Kenneth Norrie, discussed
the Outer House case of Sheikh v
Sheikh 2005 GWD 11-183 under the
typically direct title of “Marriage by
deception”. For a number of reasons
the pursuer refused to marry the
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