COMMONS AMENDMENT (Hansard, 26 April 1977)

§ Lord KIRKHILL

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No 40. Clause 20 deals with a problem which will not often arise in practice, but it is a problem nevertheless. It concerns couples who claim to have married one another outside the United Kingdom but who cannot prove this. For example, a couple who were married years earlier in the Indian sub-continent might not be able to produce a marriage certificate. Another example is that in some circumstances there might be doubt about the validity under our law of a marriage abroad if it was potentially polygamous.

Clause 20 sets out to help people who are caught in these unfortunate circumstances by offering them the possibility of a second marriage ceremony in Scotland. This is already possible in England and Wales. The second ceremony will provide them with documentary evidence, in the form of a Scottish marriage certificate, of their marital status. The second ceremony will constitute a valid marriage in all respects. But Clause 5(4)(b) states that it is a legal impediment to a marriage if one of the parties is, or both are, already married. It might be thought that this would prevent a second marriage under Clause 20, since the point of it is that the couple claim to be already married but cannot prove it. The Amendment makes it clear that this possible legal impediment to the second—or confirming—marriage does not in fact apply to prevent it, so long as the existing first marriage is between the same two parties who seek the confirming ceremony. In short, the Amendment ensures that the registrar can be satisfied that, although the parties state that they are already married to each other, this does not constitute an impediment to the second marriage under Clause 20.