HL Deb 23 October 1979 vol 402 cc12-5

3 p.m.

Report received.

The Earl of MANSFIELD moved Amendments Nos. 1 to 4 en bloc:

Clause 18 [Amendment of Marriage (Scotland) Act 1977]:

Page 13, leave out lines 7 to 17 and insert—

  1. ("(a) in section 6(5) (restriction as to date and place of religious marriage), for the words" 13(3) "there shall be substituted the words"23A";
  2. (b) in section 8(1) (persons who may solemnise marriages), at the beginning there shall be inserted the words "Subject to section 23A of this Act,";
  3. (c) in section 13 (preliminaries to solemnisation of religious marriages), subsections (2) and (3), which in so far as they are not inconsistent with the provisions inserted in the said Act of 1977 by paragraph (d) below are superseded by those provisions, shall cease to have effect;
  4. (d) after section 23 there shall be inserted the following section—

("Validity of registered marriage, 23A.—(1) Subject to sections 1 and 2 of, and without prejudice to section 24(1) of, this Act, where the particulars of any marriage at the ceremony in respect of which both parties were present are entered in a register of marriages by or at the behest of an appropriate registrar, the validity of that marriage shall not be questioned, in any legal proceedings whatsoever, on the ground of failure to comply with a requirement or restriction imposed by, under or by virtue of this Act.

(2) In subsection (1) above, "appropriate registrar" means—

  1. (a) in the case of a civil marriage, an authorised registrar; and
  2. (b) in any other case, a district registrar.").

Page 13 line 20, leave out ("paragraph (a) and (b) of")

Schedule 3 [Repeals]:

Page 20, line 54, at end insert—

("1977 c. 15. The Marriage (Scotland) Act 1977. Section 13(2) and (3).")

In the Title, line 24, leave out ("preliminaries to marriage") and insert ("the validity of marriages").

The noble Earl said: My Lords, with the permission of the House—and it will be for its convenience—I shall move all the Amendments—that is to say, Amendments Nos. 1 to 4—together. These amendments have been drafted in response to comments made by the Law Society of Scotland, which pointed out that the provisions of Clause 18 as introduced did not go far enough. They suggested that the clause should amend the Marriage (Scotland) Act 1977 in such a way as to validate all marriages which had been duly registered, but which might theoretically be open to challenge on the ground of procedural defect or even non-capacity on the part of the celebrant.

As such defects are, almost invariably, the fault of clergymen or officials, the marrying parties being themselves in no way to blame, it is considered right that the opportunity should now be taken to remove any possible question about the validity of any marriage where such defects have occurred. These amendments make it clear that any such marriages are valid.

Amendment No. 1 effectively replaces the whole of subsection (1) of Clause 18 of the Bill, and is in four parts. Paragraphs (a) and (b) amend Sections 6 and 8 of the 1977 Act, which state that marriages "may be solemnised only" in accordance with their provisions, by inserting a reference to the new Section 23A inserted by paragraph (d). These amendments make it clear that, even if in a particular marriage the provisions of Sections 6 and 8 are contravened, that marriage will be valid. Paragraph (c) provides for subsections (2) and (3) of Section 13 of the 1977 Act to cease to have effect.

Paragraph (d) inserts into the 1977 Act a new Section 23A which validates in general terms marriages at which both parties were present and which were duly registered. This validation does not extend to marriages which contravene the provisions of Sections 1 and 2 of the 1977 Act, which deal with the substantive matters of minimum age of marriage and forbidden degrees of marriage. It is also without prejudice to subsection (1) of Section 24 of the 1977 Act, which, inter alia, makes the solemnisation of a marriage in certain circumstances an offence.

Amendment No. 2 is a drafting amendment consequential upon Amendment No. 1 and Amendment No. 3 gives formal effect to the repeal of Section 13(2) and (3), already removed by paragraph (c) of Amendment No. 1. Amendment No. 4 amends the Bill's Long Title by substituting a reference to "the validity of marriages" for the present reference to marriage preliminaries. This arises from Amendment No. 1.

It may be proper of me to say that I sent to the noble Lord, Lord Hughes, who has spoken for noble Lords opposite at previous stages of this Bill, a copy of the amendments before they were tabled, plus an explanation. I am glad to say that, while official duties keep him beyond the Border, he has expressed himself in writing to me as satisfied as to their propriety. My Lords, I beg to move.

Lord ELWYN-JONES

My Lords, not having had the advantage of seeing that private correspondence with my noble friend and being a little in the dark about this matter, may I ask whether, broadly speaking, this is a piece of benevolent retrospection?

The Earl of MANSFIELD

My Lords, if legislation putting right defects which are almost invariably the fault of clergymen or officials can be said to be anything but beneficial, yes, my Lords, it is.

Lord DRUMALBYN

My Lords, was I right in understanding my noble friend to say—I hope that I was not—that the effect of one of these amendments would be to validate a marriage which it was an offence to solemnise?

The Earl of MANSFIELD

My Lords, no. I think I am right in saying that the amendment is without prejudice to subsection (1) of Section 24 of the 1977 Act, which in itself makes the solemnisation of a marriage in certain circumstances an offence. What these amendments do is to validate a situation which might exist through no fault of the parties, but through what I shall choose to call a mistake on the part of those who carried out the ceremony of marriage in the first place.

On Question, amendments agreed to.