Scottish Court of Session Decisions

The cause called before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord Mayfield and Lord Morison, for a hearing.

At advising, on 17th December 1993, the opinion of the court was delivered by the Lord Justice-Clerk (Ross).

OPINION OF THE COURT—This is a reclaiming motion against an interlocutor of a temporary judge dated 20th March 1992 in which he sustained the first plea-in-law for the defenders and dismissed the action as irrelevant. Since the case was in the Outer House the pleadings of the parties have been amended. The action is one in which the pursuer seeks declarator that she was married to the deceased James Jackson by cohabitation and the habit and repute arising therefrom. She also has a conclusion for interdict of the first defender from proceeding with the winding-up of the estate of the deceased.

In presenting the reclaiming motion counsel for the pursuer submitted that the temporary judge had erred in three principal respects. First, he contended that the temporary judge had erred in holding that as matter of law a period of cohabitation extending to six-and-a-half months was too short a period. Secondly, he maintained that the temporary judge had erred in refusing to consider the period of cohabitation prior to the pursuer and the deceased having become free to marry. His third submission was that the temporary judge was wrong in concluding that the pursuer's averments lacked detail and gave the defenders inadequate notice of the case being made.

We are satisfied that the temporary judge went too far in dismissing this action as irrelevant, and that the issues of law which arise should not be decided until the facts have been established. That being so, it would not be appropriate for us now to express any final conclusions upon the issues which were canvassed before us. In the context of marriage by cohabitation with habit and repute, it has often been said that cohabitation must have lasted for a considerable time (Stair's Institutions, IV, xlv, 19; Erskine's Institute, I, vi, 6; Lapsley v. Grierson (1845) 8 D. 34 perLord Moncreiff at p. 61).

In Campbell v. Campbell (1866) 4 Macph. 867 at p. 926 the Lord Justice-Clerk and the other consulted judges stated:

"Accordingly, all the Scottish authorities lay it down that, in order to make a marriage in this way, there must be a cohabitation and repute for a considerable period. No precise period has been fixed, but probably less than the Roman year would not do, and probably the Jutish triennium would be sufficient."

In Wallace v. Fife Coal Co. 1909 S.C. 682 at p. 686, Lord Ardwall expressed the view that the cohabitation and any repute that there was in that case, which extended to approximately 10 months, was not a sufficient time to establish a marriage by cohabitation and habit and repute.

It appears to us, however, that the law does not prescribe any minimum period of cohabitation which must elapse before a marriage by cohabitation and habit and repute can be established. In our opinion much will depend upon the nature and quality of the cohabitation and repute during the period in question, and until the facts are established in the present case it cannot be affirmed that the period of six-and-a-half months was necessarily insufficient. Of course if the period of time is as short as six-and-a-half months, it may be difficult for the pursuer to establish that there was adequate cohabitation and repute, but in our opinion the pursuer on the present pleadings is entitled to attempt to establish that.

The temporary judge expressed the view that only facts and circumstances arising after the parties were free to marry could be relevant, and that circumstances of cohabitation or anything else prior to the parties being free to marry could never be relevant to infer consent. We were referred to a number of

authorities bearing upon this issue. However, we think it is going too far at this stage to hold that averments relating to cohabitation and repute prior to the parties becoming free to marry are wholly irrelevant. In the present case the pursuer avers that she and the deceased had lived together as man and wife since about May 1984 although they did not become free to marry until they both obtained divorces. She obtained her divorce from her former spouse on 9th March 1988, and the deceased was divorced from his spouse on 23rd February 1989. Counsel for the first and second defenders accepted that averments relating to cohabitation and repute between May 1984 and 23rd February 1989 would be relevant as background, and he also described them as being of doubtful relevancy. We were referred to a number of authorities upon this matter. Again we feel that the legal question as to whether cohabitation and repute prior to 23rd February 1989 can be relevant to infer consent after that date should be decided only after the facts have been proved. In view of what the Lord Justice-Clerk and the other consulted judges in Campbell v. Campbell said at p. 926, the fact that cohabitation has originally been illicit may mean that it is more difficult to establish marriage on the basis of cohabitation and repute after the impediment has been removed, and if that is so then evidence of the cohabitation and repute prior to the removal of the impediment is relevant at least to the question of whether some change in fact took place once the impediment was removed.

In Campbell v. Campbell the Lord Justice-Clerk and the consulted judges at p. 927 stated under reference to Lapsley v. Grierson :

"The only principle truly involved in that case is, that in every irregular marriage the whole circumstances are to be looked at."

In Campbell v. Campbell (1867) 5 Macph. (H.L.) 115 Lord Cranworth at p. 135 stated:

"Where a man and woman have lived together as man and wife, at a time when they could not be man and wife, and they continue to live together in the same manner after it has become possible for them to become man and wife, the question whether they have become man and wife is a question not of law but of fact. The law permits them to create that relation between themselves, and whether they have done so must be decided like any other question of fact. The circumstance that they represented themselves to be man and wife, when they knew they were not so, may reasonably be taken into account in estimating their subsequent conduct. It may neutralise the effect which would otherwise have been properly given to their subsequent cohabitation, i.e., it may do so as matter of fact. I cannot think it must do so as matter of law."

That passage appears to us to support the view that in the present case it cannot be affirmed that the fact that the pursuer and the deceased lived together as man and wife when there was an impediment to their marriage is something which is wholly irrelevant. On the contrary, it appears to be part of the background material which the pursuer is entitled to establish in support of her claim that decree of declarator of marriage should be pronounced. The question of whether the pursuer and the deceased cohabited as man and wife with the necessary habit and repute is essentially a question of fact, and the temporary judge was in error when he decided the issue as a question of law. [Their Lordships dealt with a proposed amendment for the pursuer and continued:]

For the foregoing reasons we shall grant the reclaiming motion, we shall recall the interlocutor of the temporary judge, and having allowed the pursuer to make a further amendment to art. 2 of the condescendence, we shall allow a proof before answer.