Nicol v. Bell, 1954 S.L.T. 314
Citation: Nicol v. Bell, 1954 S.L.T. 314
Rule of thumb: Can you argue that you were married to a person even if there was no marriage ceremony & certificate? Yes, you can argue that there was a ‘common law marriage’ – it is a difficult road to go down but not impossible to argue.
Judgment:
The Court held that a key principle in testing for informal marriage was that the marriage had to be ‘general’ even if ‘not universal’. The Court held that where 2 people are living together but they do not ever properly appear outside together as husband and wife, then they are not deemed to be married – the marriage has to be shown to the world at large to a fairly decent general degree even if it is not done perfectly. The facts of this case were that the man argued that the woman he was living with was not living with him as his wife but as his housekeeper and his mistress, but this stopped short of ever constituting marriage. The woman argued that even although at times in some contexts she was treated as a mistress and a housekeeper, they had been living and sleeping together for 20 years as husband and wife, they had children together, and there were witnesses who stated that they had been out in public doing things as husband and wife. The Court declared that a marriage had been formed in this matter as it had happened ‘generally’, even if not quite ‘universally’, ‘The tacit consent to be man and wife may have to be proved to have been given by continued cohabitation as man and wife for a substantial period of time, coupled with the repute of those who knew the parties during the cohabitation that they were man and wife. That repute need not be universal in order to permit of the inference of being drawn that the parties consented to be man and wife, but it must be general, for cohabitation at bed and board may be that of man and wife, but it may also be that of man and mistress. Marriage is a grave matter, not lightly to be affirmed. The inference that cohabitation was that of man and wife will only be drawn if their behaviour has been such as to give rise to a repute which is substantially general and undivided that the pair were man and wife’, Lord Patrick.
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.