Family Law- Diagnostic Exercise

2022614d
Andrew Docherty
Dr. Frankie McCarthy
To acquire the status of marriage, capacity, consent and compliance
with formalities is required. Both parties satisfy the condition of
capacity under M(S)A 1977 s5 to marry (1). The fundamental basis of
a marriage is that it is based on true and free consent, s20A (2). The
validity is affected only by duress or error. In no way has duress
occurred as there was no pressure to overcome the free will
Caroline, Mahmood v Mahmood (3).
The meaning of error is restricted to the identity of the other
party or nature of the ceremony, MSA 1977 s20A(5) (4). Caroline did
not think of the marriage simply as a betrothal so there was no error
to the nature of the ceremony. Although Max has lied about himself,
Caroline knew she was marrying Max and not another man which
means there was no error of identity. In the case of McLeod v Adams
the defender lied about his rank in the army, used a false name and
later left his wife and kept her saving (5). No error as to identity
arose because the pursuer intended to marry the man before her.
However, a decelerator of nullity was later granted on the grounds
that the marriage was a sham.
It was recognised at common law that a marriage was null if
it were to be established that a member of the party for any reason
intended to become married at the time of the ceremony, Orlandi v
Castelli (6). However, the sham marriage doctrine appears to have
been abolished since then, S 20 A (4) MSA 1977 (7) provides, the
marriage shall not be void by reason only of that partys having
tacitly withheld consent to the marriage at the time when it was
solemnised. Caroline does not have grounds on which to challenge
the validity of the marriage on the basis of it being a sham
marriage.
Max was deceitful about his home life and dietary habits
which deeply upsets Caroline. The conclusion drawn in common law
was that a misjudgement of quality of the party to the marriage
does not vitiate consent. Errors in qualities or circumstances
vitiate not.. if one supposing he had married a chaste woman, had
(1)Marriage Scotland Act 1977 Section 5
(2) ibid Section 20 (A)
(3) Mahmood v Mahmood 2007 S.L.T. (Sh Ct) 176 (4) MSA 1977 s20A(5)
(5)McLeod v Adams 1920 1 S.L.T. 229 (6) Orlandi v Castelli 1961 SC 113
(7) S 20 A (4) MSA 1977 (8) Stair I 9.9 (9) Lord President Clyde ,L v L (10) Marriage (Scotland) Act 1977 S8
subsection 1a ii)
(11) M(S)A 1977 Section 13 Subsection 1(c )

married a whore, Stair I 9.9 (8). The fundamental principle, to take

each other for better or worse in the contract of marriage parties
would not be in line with the idea of vitiating consent based on
characteristics of the person. A marriage is only voidable in this
context if one of the parties at the time of the ceremony is incurably
impotent, Lord President Clyde, L v L(9).
There were several instances were compliance with formality was not followed
during the ceremony. Ian, a friend of the couple who is a minister in Second Life
steps in to conduct the ceremony. The ceremony should be conducted by an
authorised person. Under the Marriage (Scotland) Act 1977 S8 subsection 1a ii)
(10) the one who conduct the ceremony has to be recognised by a religious body
so prescribed as entitled to solemnise marriages on its behalf.

Also the Marriage Schedule should be signed by the parties and two
witnesses. However Carolines twelve-year-old daughter Fiona signed the
marriage schedule as a witness. Under M(S)A 1977 Section 13 Subsection
1(c ) it requires two persons professing to be 16 years of age or over are
present as witnesses (11).
Compliance with formalities does not affect the validity of the marriage
under MSA 1977 s23A because the marriage is valid as long as both
parties are present and the marriage is registered(12).
Max bought and sent Caroline an expensive engagement ring. Generally
the presumption against donation is applicable when dealing with gifts
between spouses Jamieson v McLeod (1880) (13). However the
presumption can be overturned with examination of the circumstances of
the gift giving and receiving, Stair The Institutions of The Law of Scotland
6th Edn (1981) (14). To rebut the presumption of donation, it is relevant to
point out that it is tradition for a man to give the woman an engagement
ring.

(1)Marriage Scotland Act 1977 Section 5

(2) ibid Section 20 (A)
(3) Mahmood v Mahmood 2007 S.L.T. (Sh Ct) 176 (4) MSA 1977 s20A(5)
(5)McLeod v Adams 1920 1 S.L.T. 229 (6) Orlandi v Castelli 1961 SC 113
(7) S 20 A (4) MSA 1977 (8) Stair I 9.9 (9) Lord President Clyde ,L v L (10) Marriage (Scotland) Act 1977 S8
subsection 1a ii)
(11) M(S)A 1977 Section 13 Subsection 1(c )

(12) MSA 1977 s23A (13) Jamieson v McLeod (1880)

The Institutions of The Law of Scotland 6th Edn (1981)

(14) Stair

(1)Marriage Scotland Act 1977 Section 5

(2) ibid Section 20 (A)
(3) Mahmood v Mahmood 2007 S.L.T. (Sh Ct) 176 (4) MSA 1977 s20A(5)
(5)McLeod v Adams 1920 1 S.L.T. 229 (6) Orlandi v Castelli 1961 SC 113
(7) S 20 A (4) MSA 1977 (8) Stair I 9.9 (9) Lord President Clyde ,L v L (10) Marriage (Scotland) Act 1977 S8
subsection 1a ii)
(11) M(S)A 1977 Section 13 Subsection 1(c )