Public ceremony and private belief: the role of religion in the Scots law of marriage
- Publisher: W. Green
Historically, religion has played an important role in the legal regulation of marriage in Scotland, with canon law prior to 1560 governing the personal aspects of marriage: formation of marriage, capacity to marry and issues relating to nullity. Following the Reformation in 1560, the control of the Roman Catholic church over marriage was abolished to be replaced in 1563 by the Commissary Court which took over responsibility for all actions arising from marriage. Throughout this period the rules and principles of the canon law continued to be applied "except in so far as altered by statute or inconsistent with the reformed religion" and, therefore, although the Church no longer had direct control over family law, its influence to some extent continued. The 20th Century, a period of substantial statutory reform, brought more radical reforms of Scots family law with marriage becoming increasingly secularised and nowhere is this more evident than in the Marriage (Scotland) Act of 1939 which introduced civil marriage as an alternative form of regular marriage. Since 1940, Scots law has permitted the constitution of regular marriage by either civil or religious ceremony, with the system being further modernised by the Marriage (Scotland) Act 1977. Not only have the legal ties between religion and marriage been loosened, but also religious influence on the traditional roles of husband and wife has decreased in the face of developing economic equality between men and women and growing social acceptance of unmarried cohabitation and children born out of wedlock. In recent years and, in keeping with the general decline in church attendance and formal religious affiliation in Scottish society, it might have been expected that there would have been further steady decline in the influence of religion in legal marriage. Although as a general trend the connections between the secular and the religious have weakened, analysis of some recent developments highlights their ongoing and at times uneasy relationship within the legal context of marriage.