This is a past event
In c.1990 the Scottish Law Commission opened a consultation on the reform of Scots family law, as part of which the question ‘Should marriage by cohabitation with habit and repute be retained or abolished?’ was posed. The question produced a very full consideration of the doctrine of marriage by cohabitation with habit and repute by David Sellar, who argued that the question required reformulation. Sellar argued that the sense conveyed by the question, in effect posed by Eric Clive, was that marriage could be constituted in some unique way by cohabitation as husband and wife with habit and repute arising therefrom. Sellar argued at length that this was the position neither of the canon law through which the doctrine had been received into Scots law, nor of Scots law. Rather, Sellar argued that the doctrine was neither more nor less than a presumption of the law arising from proofs of cohabitation with habit and repute whereby a court was authorised to infer that a couple had exchanged present matrimonial consent, which present consent alone constituted marriage. Clive continued to maintain his view of the doctrine in light of Sellar’s intervention.
This paper will seek to re-examine the classical doctrines of irregular marriage, in effect by applying the same approach adopted by Sellar in examining marriage by cohabitation with habit and repute. By considering the Decretals of Gregory IX and the leading commentary on the decretals by Nicholas Tudeschis, better known to posterity as Panormitanus (which were part of the library of the founder of the University of Aberdeen, Bishop William Elphinstone, who taught canon law at Paris before sitting as a spiritual judge in Scotland) in respect of the classical canon law doctrines of marriage it will be argued that in a canon law context, two clear points emerge. It will be argued that the doctrine of marriage per verba de praesenti concerned a mode of marriage constituted by consent alone, the external words spoken in the present tense were no more than proofs of an exchange of present consent, which present consent alone constituted marriage. It will then be argued that the doctrine of marriage per verba de futuro cum copula subsequente also concerned a mode of marriage constituted by consent alone, in which proof of engagement to marry and subsequent copulation were mere proofs which allowed a court to infer, through a presumption of the law or legal fiction, that a couple had exchanged present consent prior to copulation: marriage was constituted by that inferred present consent alone, and various insights from Panormitanus’s commentary on the Decretals will be offered. From the canon law perspective, it will be argued that the picture that emerges is that in all three doctrines of irregular marriage, all were constituted by present consent alone, with words or other sings denoting present consent, or copulation following engagement, or cohabitation with habit and repute all strictly delineated as proofs in canon law. The consequences of this analysis of the canon law will then be considered in respect of the subsequent history of Scots consistorial law, the Clive-Sellar dissensus, and the eventual abolition of the doctrine in 2006.
- Speaker
- Thomas M. Green
- Hosted by
- School of Law
- Venue
- Online Event
- Contact
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Seminar is Free to attend. Please contact Mr Georgi Chichkov for event link at georgi.chichkov@abdn.ac.uk