CHAPTER ONE – ABOLITION OF MARRIAGE BY COHABITATION WITH HABIT AND REPUTE
Scots Law on cohabitation was brought into the 21st Century with the enactment of the 2006 Act which came into force on 4 May 2006. The 2006 Act took great leaps forward in providing additional legal protection to those who may previously have been left with very little by way of remedy following the death of their cohabiting partner or the termination of their relationship. The sections predominantly applicable to cohabitation are found at ss. 25 to 29. However, this chapter will consider the abolition of “marriage by cohabitation with habit and repute” and the limited circumstances in which such a “marriage” may still be established.
The common law concept of “marriage by habit and repute” (or “irregular marriage”) provides for parties to be treated as spouses (therefore falling within the scope of the legal provisions available to divorcing spouses under the Family Law Scotland Act 1985 and the applicable law on succession). Section 3 of the 2006 Act is entitled “abolition of marriage by cohabitation with habit and repute”. However, this is somewhat misleading. Although subsection (1) states that “the rule of law by which marriage may be constituted by cohabitation with habit and repute shall cease to have effect”1, this is expanded upon in subsections (2), (3) and (4) which provide for certain exceptions.
Subsection 2: No Retrospective Effect
“3 (2) Nothing in subsection (1) shall affect the application of the rule in relation to cohabitation with habit and repute where the cohabitation with habit and repute –
ended before the commencement of this section (‘commencement’);
began before, but ended after, commencement; or
began before, and continues after, commencement.2“
The law is not applied retrospectively. When practitioners are considering a cohabitation which commenced prior to 4 May 2006, it is of crucial importance that consideration is given as to whether it may be possible to establish a marriage by cohabitation with habit and repute, which may lead to a more favourable outcome for the client. The correct procedure in that event is to raise an action for declarator and to provide sufficient evidence to support the position. This will predominantly come down to whether third parties truly considered the parties to be married, as opposed to any suggestion that they simply ought to be considered as such.
In Ackerman v Blackburn3 Miss Ackerman, the pursuer, sought a declarator that she had been married to Mr Logan. They had cohabited for just shy of four years. The cohabitation commenced in May 1994 and ceased in April 1998. Miss Ackerman raised her action after Mr Logan had passed away in a hillwalking accident. She also sought an interdict to prevent Mr Logan’s executors (Blackburn and Logan), from intromitting with Mr Logan’s estate until her action had been determined. The case was heard at the Court of Session before Lord Nimmo Smith. Evidence was led to the effect that the parties had become engaged to be married in March 2006. Mr Logan had at that time purchased a ring for the pursuer. Miss Ackerman’s position was that they subsequently went on what they considered to be their “honeymoon”, staying in a hotel overnight and having a champagne dinner. She stated in evidence that thereafter they considered themselves to be married. This was contradicted by the defenders, who considered that Miss Ackerman and Mr Logan had been engaged to be married but were not in fact widely considered to be married. It was held that in order to establish marriage by cohabitation with habit and repute, it was necessary that there be both a mental element (consent to marry) and a factual element (either a cohabitation with habit and repute or some form of marriage ceremony). It was established in the Ackerman case that on the evidence there had been a future intention to marry, rather than the relationship being a marriage. Miss Ackerman appealed to the Inner House of the Court of Session on the basis that the Lord Ordinary had erred in making a finding that there had been insufficient evidence to support her position. The appeal was refused. The Inner House held that “there had to be evidence that the habit and repute was so widespread as to leave no substantial doubt”4. Establishing both a mental and factual element is not without its difficulties, which suggests that it is only worth going down this route if there is a very clear body of reliable evidence available to support the position.
An interesting example can be taken from the English case of A v A5. In A v A declarator of marriage was granted in circumstances where parties had believed themselves to be married. They had failed to give notice of the marriage prior to the ceremony taking place. They were then married in a mosque. They had taken advice from the Imam who conducted the ceremony prior to going ahead, although it later transpired that not only had appropriate notice not been given, but that the Imam was also not registered to carry out valid ceremonies. The parties, however, had believed themselves wholeheartedly to be married and had continued about their lives on that basis. Their friends and family all believed them to be married. This is exactly the type of situation where marriage by cohabitation with habit and repute might well be recognised under Scots law. It was held in A v A that the marriage could be held to be valid under English Law. Importantly in that case, both parties to the marriage wished to have the marriage legally recognised. It is acknowledged that the ease of establishing the mental element necessary to establish marriage by cohabitation with habit and repute is rather more difficult where parties are in dispute.
Subsection 3 and 4 Exception: Ceremonies Conducted Overseas
It is not the case that parties commencing their cohabitation post 4 May 2006 are unable to raise an action for declarator of marriage by cohabitation with habit and repute in all cases. A narrow but significant exception remains. If parties have entered into a marriage overseas which they believe to be valid, but discover following the death of one of the parties to the marriage that the marriage did not in fact have validity, marriage by cohabitation with habit and repute may still be established where the parties are (or were, at the time of death) both Scottish domiciled. This is set out in subsections (3) and (4) as follows:
“3(3) Nothing in subsection (1) shall affect the application of the rule in relation to cohabitation with habit and repute where –
the cohabitation with habit and repute began after commencement; and
the conditions in subsection (4) are met.
3(4) Those conditions are –
That the cohabitation with habit and repute was between two persons, one of whom, (“A”), is domiciled in Scotland;
That the person with whom A was cohabiting, (“B”), died domiciled in Scotland;
That, before the cohabitation with habit and repute began, A and B purported to enter into a marriage (‘the purported marriage’) outwith the United Kingdom;
That, in consequence of the purported marriage, A and B believed themselves to be married to each other and continued in that belief until B’s death;
That the purported marriage was invalid under the law of the place where the purported marriage was entered into; and
That A became aware of the invalidity of the purported marriage only after B’s death.6“
Proving such a case is likely to be difficult in the face of resistance from executors, given the emphasis placed on the belief held by the parties.
For the vast majority of clients entering a solicitor’s office in Scotland and seeking legal advice on the claims available to cohabitants, if cohabitation either began after 4 May 2006; or it began prior to 4 May 2006 but third parties did not believe the parties to be married, the provisions found in sections 25 to 29 of the 2006 Act will apply.
1Family Law (Scotland) Act 2006 (2006, asp 2), section 3 (1)
2Family Law (Scotland) Act 2006, 2006, asp 2, section 3 (2)
3Ackerman v Blackburn 2000 Fam L.R. 35
4Ackerman v Blackburn (No 1) 2002 SLT 37
5A v A  2 W.L.R. 606
6Family Law (Scotland) Act 2006, 2006, asp 2, section 3 (3) and 3 (4)