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Scotland.

The Act of Union between England and Scotland, A. D. 1707 (6 Anne, c. 2), which made one legislature, the present British Parliament, for the two countries, expressly provided that the existing law and judicial procedure of each kingdom should be continued, except so far as they might be repealed by the Act, or by subsequent legislation. The foundation of Scottish jurisprudence is the Roman law, and the canon law which is derived from it, consequently the law of marriage and divorce in Scotland differs from that of England. The status of marriage by Scottish law may be created in any one of three ways: First, by regular or public marriage celebrated in a church or private house by a minister of religion; second, by an irregular or clandestine marriage entered into without the assistance of a clergyman or any other third party, and, third, by declaration, or declarator, wherein the parties make a declaration confessing an irregular union, and are fined for the “offence,” and obtain an extract of the “sentence” which answers to the purpose of a certificate of marriage.

The Scottish definition of marriage is given by Lord Penzance as follows: “The voluntary union of one man and one woman to the exclusion of all others.”

Impediments.—Males under fourteen and females under twelve cannot marry, but if persons under age, called in the Scottish law “pupils,” live together and continue to do so after both have passed their nonage they are considered married, on the ground that there is evidence of a contract after the impediment has ceased to exist.

Insanity.—An insane person cannot give a valid consent and therefore the insanity of either party is an impediment.

Intoxication.—There can be no marriage if one of the parties at the time of the formal union was so intoxicated as to be bereft of reason, but a marriage voidable on the ground of either insanity or intoxication may be validated by the consent of both parties after a return to sanity or sobriety.

Consanguinity and Affinity.—As to the impediments which arise from blood and marriage, the 18th Chapter of the Book of Leviticus is practically the law of Scotland. Marriage is forbidden between ascendants and descendants ad infinitum, and in the collateral line between brothers and sisters, consanguinian or uterine, and between all collaterals, one of whom stands in loco parentis to the other. It is still an academic question whether or not the marriage of a brother and sister both born illegitimate is prohibited.

Of course, a previous marriage still subsisting is an impediment.

Gretna Green Marriages.—In order to put a stop to the Gretna Green marriages which have furnished material for much romance in books and much sorrow in actual life, it was enacted by 19 and 20 Vict., c. 96, that “no irregular marriage contracted in Scotland by declaration, acknowledgment or ceremony (after 31 Dec., 1856) shall be valid unless one of the parties had at the date thereof his or her usual place of residence there, or had lived in Scotland for twenty-one days next preceding such marriage.”

It is manifest from all the decisions that in the absence of impediments, marriage in Scotland is constituted by interchange of consent. No formal expression of such consent is necessary. If the court is satisfied, from the whole circumstances and the conduct of the parties before and after, that they have given genuine consent to present marriage, it will be held that the marriage has been validly constituted.

Husband and Wife.—By the common law of Scotland the legal status of a married woman is so merged in that of her husband as to leave her incapable of independent legal action. Recent legislation has, however, modified this doctrine.

Divorce.—The term divorce as used in this chapter means an absolute dissolution and setting aside of a legal marriage.

The Scottish courts recognize two grounds for divorce, adultery and desertion. These grounds are open to either husband or wife. The action can only be maintained by the innocent party.

Adultery.—The evidence must be such as would “lead the guarded discretion of a reasonable and just man to the conclusion that adultery has been committed.”

If the court has jurisdiction it does not matter that the offence was committed out of Scotland.

Defences.—Besides the denial of the allegation of adultery, the following are sufficient defences: 1, collusion; 2, condonation; 3, long delay in bringing the action; 4, connivance or lenocinium of the plaintiff, who is called a pursuer in Scottish procedure; 5, the honest belief that the intercourse alleged to be adultery was lawful, as when a wife enters into a second marriage in the reasonable belief that her first husband is dead.

Desertion.—Desertion or, as the Scottish lawyers put it, “non-adherence,” for a period of four years, against the will of the party deserted, is the second ground for divorce. Mere separation, as, for example, the absence of the husband on necessary business or his imprisonment, is not such non-adherence as will entitle the pursuer to a decree. The desertion must be a deliberate and obstinate withdrawal from cohabitation and companionship. If a wife refused to accompany her husband abroad, and he went alone, her refusal, and not his going away, would constitute desertion.

Foreign Divorce.—If a native of Scotland acquires a foreign domicile, and obtains a divorce while abroad, the divorce would be recognized in Scotland if granted for either of the two causes sufficient by Scottish law.

Effects of Divorce.—The judgment of divorce completely sets aside the marriage, and both parties are free to marry again. On divorce the innocent party also comes into the immediate enjoyment of all the rights in the estate of the guilty spouse, or the funds settled by the marriage contract, as if the offending party had died at the date of the decree.

Conversely, the guilty spouse loses all claim to such legal rights as he or she would have had on the death of the innocent party but for the divorce.