Gay marriage is set to be introduced in Scotland very soon (SNP cabinet ratifying their legislative agenda for this term this morning) and after a short delay gay marriage is set to be introduced in England and Wales by 2014. Which got me thinking: where is it required that Scotland and England and Wales recognise each other’s marriages? Is it required in the Acts of Union? In some other constitutional act? Is it an unwritten convention wherein everybody assumes it would be stupid to do otherwise? Or are the individual countries that make up the UK free to not recognise each other’s marriages?
The Marriage Act 1753 specifically excludes marriages in Scotland from application.
We’re not a federal country, so there’s nothing to enforce a recognition even if the English courts found an excuse not to. But as AK84 says, I doubt they could even find one.
I’m not sure I fully understand the implications of this Act. By mentioning Scottish marriages outright in the wording of the Act is that taken that England and Wales recognise Scottish marriages as legitimate? If so, isn’t the other direction, Scottish recognition of English and Welsh marriages missing? Or am I misunderstanding?
Which is precisely why the English ecclesiastical courts (in Compton v. Bearcroft in 1768) and the English common law courts (in Ilderton v. Ilderton in 1793) subsequently recognised as valid any marriages contracted in Scotland, even if those marriages would have been invalid if contracted in England. So there is no doubt that English law recognises that Scots law determines whether Scottish marriages are valid in England.
But that doesn’t mean that the English courts would necessarily recognise Scottish gay marriages. That’s because there’s also the whole ‘marriage’-requires-one-man-and-one-woman argument. In other words, the same argument used against recognising foreign polygamous marriages. But, then again, with conflicting precedents, the English courts might just as easily take the opposite view.
Er, no, because, if necessary, it wouldn’t be ‘the English courts’ that had the final (non-European) say on the matter, but the Supreme Court, which is a specifically British court.