Section 2: Void Marriages
6.Section 2 amends the Marriage (Scotland) Act 1977 by inserting a new section 20A which puts into statutory form two grounds that will make a marriage void. Previously these grounds were not set out in legislation but existed at common law. The common law is that aspect of the law comprised of decisions by the courts.
7.A marriage will be void under section 20A if:
a party to the marriage was capable of consenting to the marriage but consented only
because of duress or error; or
a party to the marriage was incapable both of understanding the nature of marriage
and of consenting to the marriage.
8.Subsection (4) states that a marriage will not be void simply because a party tacitly withheld consent to the marriage at the time the marriage was solemnised. The effect of this is to prevent couples who willingly enter into “sham” marriages from relying on the lack of matrimonial consent as a basis for annulment.
9.Subsection (5) defines ‘error’ for the purposes of section 20A as a mistake as to the nature of the marriage ceremony or the identity of the persons involved in the ceremony.