Gavin Marriage by 'Habit and Repute' and the other forms of proof have a long history dating back to medieval Canon Law. They were used when there was a dispute where proof of a marriage was required e.g. the rights of the widow or the legitimacy of any children needed to be established. The fact of the marriage was the decision of the Court and there was no requirement for or need for Registration until recently. The most recent cases I have found are an unsuccessful case in 2000 Ackerman vs, Blackburn http://www.scotcourts.gov.uk/opinions/019_13_98.html and a successful one Doherty vs Vosilius http://www.scotcourts.gov.uk/opinions/08_3_96.html The web site for the Scottish Law Commission's Report on Family Law of 1992 http://www.scotland.gov.uk/library2/doc11/rfl-03.asp states that "There are never more than a few declarators of marriage by cohabitation with habit and repute per year. 3 Section 21 of the Marriage (Scotland) Act 1977 requires the principal clerk at the Court of Session to send to the Registrar General for Scotland details of any decree of declarator of marriage by cohabitation with habit and repute including "the date, as determined by the court, on which the marriage was constituted" so that the marriage can be registered. 3. The average since 1961 has been between 3 and 4 a year. Annual Reports of Registrar General for Scotland." In the Registrars reports there is table included as 7.6 at http://www.gro-scotland.gov.uk/statistics/publications-and-data/vital-events/vital-events-reference-tables-2007/section-7-marriages.html which gives the number of irregular marriage since 1946. There were 5 in 2007, the latest year on the table. Their notes state " By the Marriage (Scotland) Act 1939, which came into operation on 1 July 1940, civil marriages were introduced and irregular marriages, other than marriages by cohabitation with habit and repute, were abolished. Although two of the three types of irregular marriage were abolished in 1940 all three types of irregular marriage can be established by Decree of Declarator of the Court of Session." The last sentence probably reflects the more general proposition referred to in footnote 26 in the Commission's discussion: "Sellar, "Marriage by Cohabitation with Habit and Repute: Review and Requiem" (to be published in 1992 in a volume of essays in memory of Professor Sir Thomas Smith). Mr Sellar has kindly made this essay available to us in advance of publication. In it he concludes that "The true position under Scots common law then appears to be that declarator of marriage will be granted if there exist facts and circumstances from which consent to marriage can lawfully be inferred; such facts and circumstances will usually, but need not necessarily, include cohabitation with habit and repute."." "Were you ever involved with a case where a "habit and repute" marriage WAS held to be valid? And if so, was that marriage then recorded in the relevant Register of Marriage?s Gavin Bell John

John Hardy wrote: > ... > The web site for the Scottish Law Commission's Report on Family Law > of 1992 http://www.scotland.gov.uk/library2/doc11/rfl-03.asp states > that "There are never more than a few declarators of marriage by > cohabitation with habit and repute per year. 3 Section 21 of the > Marriage (Scotland) Act 1977 requires the principal clerk at the > Court of Session to send to the Registrar General for Scotland > details of any decree of declarator of marriage by cohabitation with > habit and repute including "the date, as determined by the court, on > which the marriage was constituted" so that the marriage can be > registered. 3. Thank you! That was the Holy Grail, the Missing Link, whatever you want to call it. Although I would still be interested to know what sort of date the court was liable to "determine" - was it the start of the cohabitation, or the 5th anniversary, or what? We have, in the course of this thread, heard of a (sadly anecdotal) case where a cohabitation was entered upon bigamously by one of the parties, but where the original spouse of the bigamist subsequently died, freeing him to enter into a new union. He subsequently abandoned his new partner, but she successfully sued for a declarator of marriage by cohabitation with habit and repute. When would such a marriage be deemed to start? From the date of the first wife's death? Gavin Bell