Marriage (Scotland) Act 1977

Forbidden degrees S

2 Marriage of related persons. S

[F1 (1) Subject to subsection (1A), a marriage between persons who are related to each other in a forbidden degree is void if solemnised—

(a) in Scotland; or

(b) at a time when either party is domiciled in Scotland.

(1ZA) For the purposes of subsection (1), a person is related to another person in a forbidden degree if related to that person in a degree specified in Schedule 1.]

[F2 (1A) [F3 A person who is related to another person in a degree specified in paragraph 2 of Schedule 1 (relationships by affinity) is not related to that person in a forbidden degree] if—

(a) both parties have attained the age of 21 at the time of the marriage; and

(b) the younger party has not at any time before attaining the age of 18 lived in the same household as the other party and been treated by the other party as a child of his family.

F4 (1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F5 (1C) For the purposes of paragraph 2 of Schedule 1, “spouse” means—

(a) in the case of a marriage between persons of different sexes, a wife in relation to her husband or a husband in relation to his wife; and

(b) in the case of a marriage between persons of the same sex, one of the parties to the marriage in relation to the other.]

(2) For the purposes of this section a degree of relationship exists—

(a) in the case of a degree specified in paragraph 1 of Schedule 1 to this Act, whether it is of the full blood or the half blood; . . . F6

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6

(3) Where a person is related to another person in a degree not specified in Schedule 1 to this Act that degree of relationship shall not, in Scots law, bar a valid marriage between them; but this subsection is without prejudice to—

(a) the effect which a degree of relationship not so specified may have under the provisions of a system of law other than Scots law in a case where such provisions apply as the law of the place of celebration of a marriage or as the law of a person’s domicile; or

(b) any rule of law that a marriage may not be contracted between persons either of whom is married to a third person.

[F7 (4) References in this section and in Schedule 1 to this Act to relationships and degrees of relationship shall be construed in accordance with section 1(1) of the Law Reform (Parent and Child) (Scotland) Act 1986.]

[F8 (5) Where the parties to an intended marriage are related in a degree specified in paragraph 2 of Schedule 1 to this Act, either party may (whether or not an objection to the marriage has been submitted in accordance with section 5(1) of this Act) apply to the Court of Session for a declarator that the conditions specified in paragraphs (a) and (b) of subsection (1A) above are fulfilled in relation to the intended marriage.]

[F9 (6) [F10 Subsection (1A)] above and [F11 paragraph 2] of Schedule 1 to this Act have effect subject to the following modifications in the case of a party to a marriage whose gender has become the acquired gender under the Gender Recognition Act 2004 (“the relevant person”).

(7) Any reference in [F12 subsection (1C)(a) as it applies to paragraph 2 of Schedule 1] to a F13 ... wife or F13 ... husband of the relevant person includes (respectively) any F13 ... husband or F13 ... wife of the relevant person.

[F14 (7A) This section and Schedule 1 to this Act have effect as if any reference in paragraphs 1 and 2 of that Schedule to a [F15 parent] within any of the degrees of relationship specified F16 ... included a woman who is a parent of a child by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008 (c. 22).]

F17 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F1 S. 2(1)(1ZA) substituted for s. 2(1) (16.12.2014) by Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), ss. 1(2)(a), 36; S.S.I. 2014/287, art. 3, sch.

F2 S. 2(1A)(1B) inserted by Marriage (Prohibited Degrees of Relationship) Act 1986 (c. 16, SIF 49:1), s. 2, Sch. 2 para. 2(b)

F3 Words in s. 2(1A) substituted (16.12.2014) by Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), ss. 1(2)(b), 36; S.S.I. 2014/287, art. 3, sch.

F4 S. 2(1B) repealed (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 1(a)(ii), 46(2); S.S.I. 2006/212, art. 2

F5 S. 2(1C) inserted (16.12.2014) by Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), ss. 1(2)(c), 36; S.S.I. 2014/287, art. 3, sch.

F6 S. 2(2)(b) and the word “and” preceding it repealed by Law Reform (Parent and Child) (Scotland) Act 1986 (c. 9, SIF 49:8), ss. 9, 10(2), Sch. 2

F7 S. 2(4) inserted by Law Reform (Parent and Child) (Scotland) Act 1986 (c. 9, SIF 49:8), ss. 9, 10(1), Sch. 1 para. 17

F8 S. 2(5) inserted by Marriage (Prohibited Degrees of Relationship) Act 1986 (c. 16, SIF 49:1), s. 2, Sch. 2 para. 2(c)

F9 S. 2(6)-(8) inserted (4.4.2005) by Gender Recognition Act 2004 (c. 7), s. 26, Sch. 4 para. 7; S.I. 2005/54, art. 2

F10 Words in s. 2(6) substituted (30.6.2006) by The Family Law (Scotland) Act 2006 (Consequential Modifications) Order 2006 (S.S.I. 2006/384), arts. 1, 4(a)(i)

F11 Words in s. 2(6) substituted (30.6.2006) by The Family Law (Scotland) Act 2006 (Consequential Modifications) Order 2006 (S.S.I. 2006/384), arts. 1, 4(a)(ii)

F12 Words in s. 2(7) substituted (16.12.2014) by Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), ss. 1(2)(d)(i), 36; S.S.I. 2014/287, art. 3, sch.

F13 Word in s. 2(7) repealed (16.12.2014) by Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), ss. 1(2)(d)(ii), 36; S.S.I. 2014/287, art. 3, sch.

F14 S. 2(7A) inserted (1.9.2009) by The Human Fertilisation and Embryology (Consequential Amendments and Transitional and Saving Provisions) Order 2009 (S.I. 2009/1892), art. 1(1)(a), Sch. 1 para. 1

F15 Word in s. 2(7A) substituted (16.12.2014) by Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), ss. 1(2)(e)(i), 36; S.S.I. 2014/287, art. 3, sch.

F16 Words in s. 2(7A) repealed (16.12.2014) by Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), ss. 1(2)(e)(ii), 36; S.S.I. 2014/287, art. 3, sch.

F17 S. 2(8) repealed (30.6.2006) by The Family Law (Scotland) Act 2006 (Consequential Modifications) Order 2006 (S.S.I. 2006/384), arts. 1, 4(b)