December is recognised as the peak month for engagements; with friends and family coming together and, with many festive traditions tied to this time of year, it is unsurprising that many people choose to pop the question during the holiday season. With the New Year now upon us and the engagement celebrations subsiding, many couples may be starting to think about wedding planning and the legal preliminaries to marriage which must be completed before the ceremony can take place. This insight will look at five things to do before the ceremony (and why they're so important).
1. The marriage ceremony
As unromantic as it may seem, marriage, at its core, is a contract. The act of marriage itself creates a legal status to which the law attaches certain rights, duties and privileges. Unlike any other contract, a marriage is formed by the exchanging of verbal vows (this contrasts with a civil partnership which is formed by the signing of a schedule). In Scotland there are two forms of marriage:
- Marriage by way of a religious or belief ceremony (i.e., a Christian, Jewish, Hindu, Muslim, Sikh or Humanist ceremony); or
- Marriage by way of a civil ceremony (i.e., a civil ceremony conducted by a Registrar).
While for some it may seem like there is no real difference, in the eyes of the law there are different legal rules attached to religious and belief ceremonies and civil ceremonies. The law ascribes rules for example on who may conduct a religious or belief ceremony and which organisations will solemnise a marriage, this can be an issue for couples who wish for a friend or family member to conduct the ceremony or for same-sex couples who wish to have a belief ceremony. In recent years, however, many institutions, such as the Church of Scotland, have voted to allow ministers and deacons to marry same sex couples.
2. The wedding venue
The wedding venue will likely be one of the first things a couple books when they decide to get married. In Scotland, unlike England and Wales, a marriage ceremony can take place anywhere (subject to the agreement of the registrar or celebrant who is marrying the couple).
3. Notice of intention to marry
Many couples do not realise that they must (both) give notice of intention to marry at the registrar's office in the location in which they intend to marry. For example, a couple living in Aberdeen but intending to marry in Inverness must give notice in Inverness. Parties to the marriage must complete a marriage notice form and register this with the registrar along with the fee to register and the other documents that may be required in order to get married, for example birth certificates, proof of address, passport or other documents which prove nationality and a divorce certificate or the death certificate of the deceased spouse (if there has been a previous marriage). These documents with the registry office no earlier than 3 months before the ceremony and no less than 29 days prior to the ceremony. The registrar will enter the details of the parties' names, addresses, dates of birth and date of marriage of the parties in the marriage notice book and display the details of marriage in a conspicuous place at the registration office until the date of the marriage has elapsed. The reason for doing this is to allow an individual to object to the marriage. A formal objection cannot be simply because a person does not want you to get married, but must be for one of the following reasons:
- that one (or both) of the parties are already married (or in a civil partnership).
- that one (or both) of the parties are under the age of 16.
- that one (or both) of the parties are incapable of understanding the nature of the marriage ceremony or of consenting to marriage.
- that one (or both) of the parties are not domiciled in Scotland and the marriage would be void according to the law of the party's own domicile. It is worth noting that in circumstances where a same sex marriage would be void according to the law of the domicile for one or both parties (for example in states where same sex marriage is illegal), that is not considered a barrier to same sex marriage in Scotland and cannot be used as ground of formal objection.
4. The marriage schedule and registration
After giving notice of intention to marry, the registrar will issue the couple's marriage schedule. This is issued no earlier than 7 days prior to the date of the marriage ceremony. For religious ceremonies, the marriage schedule acts as the licence for celebrant to marry a couple and it must be collected by one or both the parties to the marriage in the week before the wedding. For civil ceremonies, the registrar will usually keep the schedule and bring it to the wedding when they perform the ceremony. The marriage cannot proceed without the marriage schedule, and it is essential that the date and place of the marriage are correct on the schedule, otherwise the schedule will require to be amended or a new schedule issued by the registrar.
5. Pre-nuptial agreements
It may not seem like something intended spouses want to think about in the run up to a wedding, however, a pre-nuptial agreement provides a plan, structure and certainty for any potential future marriage breakdown. These agreements can ringfence assets, generational wealth, business and property interests. Marriage affords parties certain rights, duties and privileges and many people do not fully appreciate the implications a marriage may have on their financial well-being. A pre-nuptial agreement may not be considered romantic, however, a relationship insurance policy drafted and entered when two people are at their most compassionate and measured, is a valuable gesture which establishes how assets and liabilities will be divided in the event of a relationship breakdown.
There is a lot to think about when planning a wedding but if all of the above points are dealt with then you can relax and enjoy the special day!
Contributor
Senior Solicitor
