The concept of an annulment (in Scotland known as nullity of marriage) differs entirely from the concept of divorce. To end a marriage by divorce in Scotland, there must be an irretrievable breakdown in the marriage which is established on the basis of one of the following: -

  • Adultery (although parties to a same-sex marriage cannot establish irretrievable breakdown by adultery).
  • Unreasonable behaviour.
  • Separation for one year or more and that the other spouse consents to the divorce decree being granted.
  • Separation for at least two years (with no consent required from the other spouse).

While ending a marriage by divorce treats the valid marriage as simply coming to an end, ending a marriage by declarator of nullity treats the marriage as if it never existed legally at any time. Unlike divorce, however, a declarator of nullity can only be sought in very specific circumstances and there will only be very few instances when a declarator of nullity of marriage is available and, as such, most family law practitioners in Scotland will never deal with a declarator of nullity. According to the National Records for Scotland, from 2010 – 2020 there were 100,948 divorces and dissolutions of civil partnerships in Scotland, while there were only 7 declarators of nullity granted in Scotland over the same period.

A marriage in Scotland may be void or voidable, the difference is distinguishable in the following ways: -

  • A void marriage is a marriage with no legal effect and does not require a declarator of nullity as the marriage was void from the beginning.
  • A voidable marriage is a marriage which endures unless or until such time as a declarator of nullity of marriage is decreed.

While a void marriage does not actually require a declarator of nullity to be decreed, in practice any person with a legitimate interest may make an application for a declarator of nullity on the basis that the marriage was void. It may be that even in relation to void marriages, where a declarator of nullity is obtained, the court has the same powers to make an award of financial provision, as it does in actions of divorce. This insight will focus on instances where a marriage will be considered void. The basis on which a marriage is void are 1) non-age, 2) if one or both of the parties are already married or in a civil partnership, 3) if there has been an essential error, 4) there is incapacity to understand the marriage, 5) intoxication, or 6) there has been duress.

Non-age

Under s.1(1) of the Marriage (Scotland) Act 1977 (“the 1977 Act”), no person domiciled in Scotland may marry before they turn 16 years of age.

Previous subsisting marriage or civil partnership

Under s.5(4) (d) of the 1977 Act it is a legal impediment to marriage whereby one or both of the parties are already married or in a civil partnership.

Essential error

Essential error can be in two forms, either error as to the individual or the identity of the individual or error as to the nature of the ceremony. An error to the individual or identity will operate in cases where a party to the marriage has impersonated someone else (i.e. person A marries person B believing them to be person C after person B impersonates person C). It would not be considered an error to the individual if person B had simply pretended to have certain accolades or qualities of person C (i.e. if person B had claimed to be pregnant with the child of A and this turned out not to be true, this would not be considered an error to the individual and would therefore not mean the marriage was void). An error to the nature of the ceremony would be in circumstances where one party did not realise they were involved in a marriage ceremony and could not therefore be said to have consented to the marriage.

Incapacity to understand the marriage

A marriage is void if at the time of a marriage ceremony taking place a party to the marriage was incapable of understanding the nature of marriage and therefore consenting to the marriage. If a person lacks the capacity to enter a marriage due to mental illness or impairment, the burden of proof is on the person seeking the declarator of nullity to prove that one or both parties to the marriage were incapable of understanding the nature of the marriage contract at the time the ceremony took place.

Intoxication

A party to a marriage may lack the capacity to consent to a marriage as a consequence of drunkenness or intoxication due to the use of drugs at the time of the ceremony. It is worthwhile noting that timing is key, the intoxication would require to be present at the time of the ceremony giving rise to one (or both) of the parties’ inability to provide consent to the marriage.

Duress

Marriage cannot be valid if it has been entered into under duress. “Duress” is not defined in the 1977 Act, however in case law a person is said to be unable to consent to a marriage if they have been overcome by force and fear. The case law on duress in Scotland is prevalent in cases of arranged marriages where prolonged family pressure, including fear of causing shame to one’s family or being sent to a foreign country, can amount to duress.

In Scotland it is only in very few and specific circumstances that an application for a declarator of nullity can be made. For further information about the process, contact one of our legal advisors today.

Contributor

Eildh McRitchie-Conacher

Associate