Scottish Court of Session Decisions

At advising on 27th November 1958,—

LORD PRESIDENT (Clyde).—The real issue in this appeal is one of general interest which has arisen in more than one previous case in recent years, but has not been finally determined in any of them. That issue is whether a party who is between sixteen and twenty-one years of age can marry in Scotland without parental consent, when

such consent is required by the law of that party's domicile, although not required by the law of Scotland. It is obviously unsatisfactory that there should be uncertainty as to what our law on this matter is. This case should enable that issue to be determined.

The matter arises in an action brought by a man, then twenty-nine years of age, domiciled in the Netherlands, and a girl, then eighteen years of age, also domiciled there. They desire and intend to marry one another. For this purpose, while they were in Scotland, they lodged with the Registrar of Births, Deaths and Marriages at King-ussie a notice of intention of marriage. Under section 10 of the Marriage Notice (Scotland) Act, 1878, provision is made as to the lodging of objections to intended marriages. In particular, under subsection (b) of that section it is provided that where the objections set forth any legal impediment to a marriage the registrar shall suspend the issuing of his certificate until there has been produced to him a certified copy of a judgment of a competent Court of law to the effect that the parties are not in respect of the said objection disqualified from contracting such marriage.

An objection to the intended marriage was duly lodged by the defender on behalf of the father of the girl. This objection narrated (and it is matter of admission between the parties) that the father of the girl had not given his consent to the intended marriage. Article 92 of the Dutch civil code requires the consent of the parents to marriages where the parties are under twenty-one years of age. Article 146 of the Dutch civil code provides that if a marriage to a Dutch subject under twenty-one years of age takes place without the parents' consent, the marriage can be annulled in the Netherlands within six months of the application of either the father or the mother of the minor.

In these circumstances, an action was brought by the two parties to the intended marriage in the Sheriff Court at Inverness against the objector, craving the Court to find that the pursuers were not disqualified from contracting a marriage between them in Scotland, and that the objections to the said intended marriage lodged by the defender with the said registrar are of no force and effect, and do not disqualify the pursuers from marriage to each other. The obvious purpose of this action was to obtain a judgment which would secure the issue of a certificate by the registrar as a necessary preliminary to the intended marriage.

Defences were lodged by the objector, and after a debate, the Sheriff-substitute allowed a proof before answer. On appeal to the Sheriff, the Sheriff-substitute's interlocutor was recalled, and decree, as craved, was granted. The Sheriff took the view that he could competently decide the dispute in this action, and that the girl was not legally incapacitated from marrying in Scotland, notwithstanding the absence of her father's consent. The defender's objections accordingly were, in his view, unfounded.

The defender has now appealed to the Court of Session. When the case came before us, we were informed that the two pursuers had now gone abroad, that they had withdrawn their instructions to their legal representatives, and that they still intended to marry. The defender and appellant, however, still desired to insist on this appeal, and he has clearly still an interest to do so, as his abandonment of it would inevitably lead to the issue by the registrar of a licence, if and when an application therefor is made by the pursuers. Our task was materially simplified by the Solicitor-General, who appeared on behalf of the Lord Advocate in the public interest, and presented an argument to us on the main issue raised before us in this appeal.

Two questions were discussed: firstly, a question of the competency of the action, and secondly, a question on the merits. As regards the question of competency, the main contention was that the present action was in substance an action of declarator, the direct or main object of which was to determine the personal status of the girl, and that actions of this nature were excluded from the jurisdiction of the Sheriff Court by section 5 (1) of the Sheriff Courts (Scotland) Act, 1907.Any decree therefore pronounced in such an action as this could not be the judgment of a competent Court of law within the meaning of section 10 (b) of the Marriage Notice (Scotland) Act, 1878,to which I have already referred.

But, in my opinion, the present action is not one the direct or main object of which is to determine the personal status of the girl at all. If it were, I should regard the action raised in the Sheriff Court as clearly incompetent. The fact is that the girl's personal status is not in issue in this case at all. She is unmarried, she is a minor, and she is domiciled abroad. Nothing decided in this case will by itself alter any of these elements in her status. This case is concerned with what impediments, if any, there are to a person with her admitted status if she seeks to marry in Scotland. Section 5 (1) of the Sheriff Courts (Scotland) Act, 1907, therefore does not disable the Sheriff from determining the matter.

A subsidiary point on competency was also put forward to the effect that, in any event, this should have been an ordinary, and not a summary, application in the Sheriff Court. This point was not taken before the Sheriff-substitute when the matter could easily have been remedied; and it was not ultimately insisted in. In the circumstances it has not, in my opinion, any substance. The result is that the attack on competency fails, and I turn to the main issue on the merits.

By the law of Scotland a girl of eighteen years of age can marry without the consent of her parents (Bell's Principles of the Law of Scotland, (Guthrie's edition) pars. 1522, 1523) and, if the law of Scotland regulates the issue in the present case, the objection taken by the defender to the issue of a certificate is unsound. But it is contended that the Dutch civil code renders the girl in the present case

incapable of marrying without her parents' consent, and that the objection of the defender should therefore be sustained. The question accordingly is, whether the necessity for parental consent is in this case to be determined by the law of the domicile of the minor or by the law of the place where the marriage is to be solemnised.

The solution of this problem depends, in my opinion, upon a consideration of the nature and quality of the impediment to marriage created by the requirement of parental consent. Marriage is a very special type of contract involving, as it does, not merely the parties primarily concerned, but third parties, and indeed the whole basis of our social structure as a civilised community. In regard to this very special type of contract the canon law formulated two broad categories of impediment, the impedimentum dirimens and the impedimentum impeditivum. This distinction has been incorporated from the canon law into the law of Scotland (see Fraser on Husband and Wife, (2nd ed.) vol. i, p. 49) where the learned author describes the two impediments respectively as impediments irritant and impediments prohibitive. The distinction was referred to and reaffirmed with approval by Lord Phillimore in Administrator of Austrian Property v. Von Lorang . The reality of this distinction between the two types of impediment to marriage is clearly, in these circumstances, part of our law in Scotland today.

The impedimentum dirimens, or irritant impediment, is an impediment so fundamental that it prevents a marriage coming into existence at all, making it null and void ab initio, however much the parties may have complied with all the formalities connected with the marriage ceremony. A marriage between a brother and sister is an obvious instance. In the case of such an impediment the party to the ceremony approaches it utterly incapable of really taking part in it. Hence if the law of the domicile of either imposes an impediment of this kind, that impediment will probably prevent and nullify a marriage of such persons anywhere.

The impedimentum impeditivum, or prohibitive impediment, on the other hand, is not so fundamental. It does not render the marriage completely invalid ab initio, but merely prohibits its celebration, unless the impediment is removed. Many of the impediments of this latter category are concerned with the conditions under which the marriage may be solemnised, and relate to the requirements of the law in connexion with entering into the ceremony of marriage. They vary in different countries according to the requirements of the local law. The validity of this latter type of impediment therefore depends, in any particular case, on the law of the country where the marriage is solemnised.

From this it follows in the present case, that, if parental consent is

an impedimentum dirimens the law of the girl's domicile is probably the proper law to apply, but if that consent is an impedimentum impeditivum, then the law of Scotland will determine whether such consent is necessary.

It is, in my opinion, firmly settled that parental consent is an impediment of this latter category. Lord Stair in his Institutes treats consent of parents to marriage as one of these less fundamental impediments "quae impediunt matrimonium contrahendum quae non dirimunt contractum." Elsewhere in the same work (I, xvii, 14) he describes the necessity for parental consent as one of the solemnities (or formalities) of the marriage, and this again would place the question of parental consent in the lesser of the two types of impediment and make it therefore dependent upon the lex loci celebrationis. Fraser on Husband and Wife says:

"Although the contracting parties be in minority, the consent of parents is not necessary to their marriage. The Court desires it as a consent highly desirable, but not essential to the validity of the contract, and the want of it does not render it a clandestine marriage."

In dealing with the requirement of parental consent to the marriage of minors, which was curiously enough insisted on during the sixteenth century in Scotland, he describes it as a "requisite to the regular celebration of marriage," thus clearly disassociating it from that more fundamental type of impediment which destroys altogether the whole validity of a marriage. I have found nothing which suggests to me that this is not still the law of Scotland. If so, absence of parental consent would only constitute an impediment to this marriage, if parental consent were necessary by the law of Scotland. In the present case it clearly was not.

It appears that the decisions in England which bear on this matter reach the same conclusion. In Simonin v. Mallac, the necessity for the parental consent to the marriage of a person, domiciled in France who was marrying in England, fell to be determined by the law of England as the lex loci celebrationis, and not by the law of the domicile. Similarly, in Ogden v. Ogden the law of the domicile declared that the marriage of a minor without parental consent was void, if proceedings were taken for that purpose in proper time, but left the marriage valid, unless such proceedings were successfully brought. But the Court took the view that the necessity for parental consent must be determined by the law of the place where the ceremony took place, and not by the law of the domicile. In both these English cases, therefore, the necessity for consent by a parent was treated as one of the lesser types of impediment which belonged to the formalities of the ceremony of the marriage and not to the substance of the marriage itself.

The case of Ogden v. Ogden has been adversely commented upon more than once (e.g., Attorney-General for Alberta v. Cook and

Chapelle v. Chapelle ) but these comments have been directed to a quite different point, namely, the extent to which the English Courts should recognise a decree of divorce pronounced in France, the country of the domicile. That point has not any bearing on the present question, and I have not found any case in which the decision in Ogden on the present question has been criticised.

The Gretna Green marriages again illustrate the same conclusion. If the observations of Lord Stair to which I have referred above are correct, obviously in Scotland the absence of parental consent to these romantic adventures by minors would not be regarded as an impediment to the marriage, for it would be treated in our Courts as an impedimentum impeditivum the validity of which would fall to be determined by the lex loci celebrationis. But no one apparently has had the temerity to challenge these marriages before the Scots Courts. The attempt has been made in England. Although the challenge in England failed, partly on the ground that Lord Hardwicke's Act, laying down the need for parental consent, only operated in England and did not apply to Scotland, it also appears from the reports that the Courts in England regarded the necessity for parental consent as part of the formalities of the marriage ceremony, as distinct from something fundamentally destroying the marriage altogether ab initio. In these circumstances, in my opinion, our law regards parental consent, not as something which can render a marriage funditus null, but as one of the factors relating to the celebrating of the marriage ceremony. The requirements regarding such consent in the case of a marriage celebrated in Scotland must therefore depend on Scots law.

I am confirmed in this conclusion by a consideration of the particular case with which we are concerned. The impediment in the Dutch civil code does not even purport to involve an absolute impediment rendering a marriage without the parents' consent null and void ab initiofor all purposes. On the contrary, the main article in the code which is founded upon (Article 92) seems to me plainly to indicate that the consent is part of the formalities surrounding the marriage ceremony. It provides merely that parental consent is required to marriages where the parties are under twenty-one years of age. But the matter is put beyond doubt, in my opinion, by Article 146, which provides that, if a marriage of a Dutch subject under twenty-one years of age takes place without the parents' consent, the marriage can be annulled within six months on the application of either the father or the mother of the minor. It necessarily follows that, if such application is not made, the marriage can be perfectly valid. In my opinion, an impediment of this kind is not such as to affect the minor's capacity to marry, if she goes to another country for that purpose and no such impediment is imposed by the law of that other country. This article

in itself shows that the impediment is not an impedimentum dirimens at all.

It was argued that, by refusing to sustain the objection put forward by the defender, this Court would merely enable a marriage to take place here which could almost immediately be annulled by the father under Article 146. But the father may not take that course; in which event the marriage will clearly be valid. The mere fact that an attempt may be made to annul the marriage once it is celebrated is obviously not a reason for preventing its celebration. In any event, the attempt may well fail on the ground that Article 146 does not apply to a marriage celebrated in this country.

In the whole circumstances, therefore, the Sheriff reached the correct conclusion, and, in my opinion, the appeal should be refused.

LORD CARMONT .—I agree.

LORD RUSSELL .—I also agree.

LORD SORN .—The question we have to decide is whether two persons, both domiciled in Holland, may legally marry each other here, one of them being under twenty-one and thus requiring parental consent to marry under the law of the domicile. The case has been presented to us as if this question was in all respects the same as the question which would arise if we were determining ex post facto the validity of such a marriage once it had been entered into. I am not at all sure that this is so, and I shall have something to say on the point later, but in the meantime I shall consider the case in this light.

The agreed statement in the case as regards the Dutch law is somewhat meagre. It appears that by Article 92 of the Dutch civil code parental consent to marriage is required in the case of persons under twenty-one. Article 146 provides that, if a marriage does take place without such consent, it can be annulled in the Netherlands within six months on the application of either of the parents of the minor. From these articles, I am prepared to take it that Dutch law does not treat the absence of consent as rendering a marriage fundamentally null, and that a marriage without consent will be a valid marriage, if it is not annulled by the parents.

It would seem that, in earlier times, our view may have been that the validity of a marriage celebrated in Scotland fell to be determined exclusively by the lex loci celebrationis; but it is conceded that this is not any longer our law, and that we now regard and give effect to the lex domicilii for certain purposes. It is said that we will give effect to the foreign law as regards the "capacity" of the parties to marry (the word capacity being given a rather extended meaning); or it is said that we will recognise a prohibition against the marriage, if it is a prohibition of a certain kind. The question for us is, whether the absence of parental consent should be regarded as something which takes away the capacity to marry, or, if it is put the other way, whether

a prohibition of marriage in the absence of such consent is a prohibition which we should regard as an absolute prohibition. We had a considerable citation of authorities, and I shall refer briefly to some of the cases quoted. In the Sussex Peerage case the decision itself is not in point, because the effect of the absence of the consent required under the Royal Marriages Act was being considered, not in the country where the marriage was celebrated, but in the Court of the domicile. In the course of his observations, however, Lord Brougham emphasised the special character of the Act in that it made consent an essential of marriage; and he contrasted the position under that Act with the position under the General Marriage Act:—

"Parties are rendered incapable of contracting matrimony and not merely, as in the case of Lord Hardwicke's Act, the marriage rendered null and void."

The decisions in the Gretna Green cases (e.g., Compton v. Bearcroft are not strictly in point, being decisions by the Court of the domicile, and moreover they are perhaps rested chiefly on the view that Lord Hardwicke's Act did not apply to marriages which had taken place in Scotland. In the corresponding Irish case of Steele v. Braddell, however, Dr Radcliff was at pains to point out the difference between the Royal Marriages Act and the Irish statute, and he says (at p. 27):

"How can that case be likened to this of an ordinary municipal law, when no personal incapacity of contracting is imposed, and the contract is not made void in its inception but voidable, and annullable by suit under conditions and limitations, and good till avoided, and valid if not impeached in one year?"

In Simonin v. Mallac, we have a decision in point here. In that case, two persons of French domicile got married in England without the consents required by French law. Sir Cresswell Cresswell delivered the judgment of the Court, and, rejecting the argument that the effect of the French law was to affix to the parties an incapacity to contract marriage without attending to the formalities prescribed, held that the marriage was valid. In Brook v. Brook two persons domiciled in England, the woman being the man's deceased wife's sister, married in Denmark, where this relationship was not a bar to marriage, and returned to live in England. It was held that such a marriage was absolutely prohibited by English law, and that the prohibition rendered the parties incapable of contracting a valid marriage in Denmark. In the course of his speech Lord Campbell, L.C. (at p. 218), contrasted the prohibition in the case then before him with the prohibition in Simonin v. Mallac . In the case then before him Sir Cresswell Cresswell had, in the Court below, delivered an opinion adverse to the validity of the marriage, and the Lord Chancellor asks himself whether there was anything inconsistent between that opinion and the opinion previously expressed by Sir Cresswell in Simonin'scase and gives this answer:—

"Nothing whatever; for [in Simonin'scase] the objection to the validity of the marriage in England was merely that the forms prescribed by the Code Napoléon for the celebration of a marriage in France had not been observed. But there was no law of France, where the parties were domiciled, forbidding a conjugal union between them; and if the proper forms of celebration had been observed, this marriage by the law of France would have been unimpeachable." In Sottomayor v. De Barros the distinction between different kinds of prohibition was again recognised, and the opinion expressed that parental consent must be considered a part of the ceremony of marriage and not a matter affecting the personal capacity of the parties to contract marriage. In Ogden v. Ogden a domiciled Frenchman married a domiciled English woman in England without the consent of his parents, as required by French law, and it was held that the marriage was valid. The case is in point here, and it goes further than Simonin's case because the consent in question was one that required to be obtained, and not one that could be dispensed with by means of certain formal acts. Ogden's case has no doubt been the subject of unfavourable judicial comment, but there were two questions in the case. There was the question of the validity of the marriage, and there was the question of the recognition to be given to a foreign decree declaring it to be a nullity. As regards the latter question there has been adverse comment; but we were not referred to any judicial criticism so far as the former question is concerned. The judgment fully recognises the difference between a prohibition which entirely prohibits marriage and one which does not. It also affirms the view that parental consent should be considered a part of the ceremony of marriage. In Macdougall v. Chitnavis Lord Moncrieff refers with approval to Ogden's case and emphasises the distinction between a proper question of capacity to marry and a question of parental consent, which he regarded merely as a condition affecting "liberty" to marry. The conclusion to which this brief review of the authorities leads, is that we are now in a position to dispel any remaining doubt and to affirm that, in a case like the present one, the absence of parental consent does not of itself invalidate the marriage, and that the marriage in question may therefore lawfully proceed.

What has been said so far has been said on the footing that the foreign law does not go the length of purporting to render a minor fundamentally incapable of marrying without consent; the underlying suggestion being that, if it did, our decision might be different. But of this I am far from satisfied. If we are to regard consent as part of the ceremony of marriage—and I think that is how we do regard it—there is a good deal to be said for the view that we should act upon this understanding regardless of what the provisions of the foreign law on the subject may be. It must be remembered that the question

which we are considering is whether a marriage may legally take place in Scotland, and, at least at this stage, is there not much to be said for the view that, this being the place of the marriage, we should apply our own law with regard to the ceremony and what it covers? The opposite view would involve elaborate and lengthy inquiry into some foreign law, and, if it did emerge that the foreign law purported to turn absence of consent into something which took away the capacity to marry, would that be the end of it? Would we be prepared to attempt to pre-judge the ultimate validity or invalidity of such a marriage? If such a marriage were later declared null by the Court of the domicile, it might be that we would require to recognise that decree here; but the point is doubtful, and I reserve my opinion upon it. In Administrator of Austrian Property v. Von Lorang the feature that the law of the domicile was in conflict with the lex loci celebrationis did not occur, nor was the problem viewed from the angle of the country in which the marriage took place. In any case, the question how we should treat such a decree, if it ever came to be pronounced, is not a question we can or should attempt to anticipate at this stage. If, in the absence of such a decree, the marriage came to be challenged here, would we be prepared ourselves to apply the foreign law in view of the conflict to which I have referred? Again I am not sure. Then, upon one view (which has much to recommend it), the law by which the ultimate validity of the potential marriage falls to be decided is the law of the intended domicile of the marriage, as that may be ex post facto determined. It could thus happen that a marriage fundamentally prohibited by the existing lex domicilii of the parties could ultimately turn out to be valid. Is it to be suggested that we should attempt to explore the future in order to divine whether the parties will effectuate their present intention to make a home in this or that country—and incidentally decide controversial questions of international law—before allowing a marriage, valid in all respects by the local law, to proceed? Considerations like these may be thought to point towards a general view that, when it is a question of whether a marriage may be celebrated, the only sensible and workable rule is that we should look to our own marriage law and nothing else; and perhaps especially so as regards parental consent, since, in that case, to do otherwise would involve laying aside our own view of what the ceremony covers. As this wider question does not arise for decision, and, more particularly, as there was no argument upon it, I express no concluded opinion.