Commentary Part 1 – Marriage Overview Section 3: Preliminaries to marriage
12.This section makes some amendments to sections 3 and 7 of the 1977 Act. Section 3 of the 1977 Act makes provision about the procedures a couple must go through when they want to marry. They must submit to a district registrar a notice of intention to marry, with the prescribed fee, their birth certificates and certain other documents, which are specified in section 3 of the 1977 Act.
13.Subsection (2)(a) substitutes a new paragraph (b) in section 3(1) of the 1977 Act, to remove terms like “widow”, “widower” and “spouse”. The new paragraph instead refers to “the other party” to the marriage. Despite the change in terminology, the effect of the provision remains the same. When a marriage has ended because one of the parties has died, a person who is marrying again has to provide the death certificate of the deceased party.
14.Section 3(1) of the 1977 Act is also amended so that any person who wants to get married who has a civil partner who has died is required to submit the relevant death certificate. Section 8 of the Act amends section 3 of the 1977 Act so that if a person who wants to get married is changing from a civil partnership to a marriage, that person must submit a relevant extract from the civil partnership register.
15.Section 3(2) of the 1977 Act makes provision in cases where someone intending to get married cannot supply the birth certificate or some of the other documents required by section 3(1). In essence, a person in this position has to supply the district registrar with a declaration on why the documents cannot be submitted.
16.The obligation in section 3(2) of the 1977 Act is extended by subsection (2)(b) so that it also applies to the additional documents required as set out in paragraph 15 above. For more information on the process of changing from a civil partnership to a marriage, see the explanatory notes on sections 8 to 10.
17.Section 3(5) of the 1977 Act makes provision where one or both of the parties to the marriage is not domiciled in Scotland. Under section 3(5), such a party is required, if practicable, to submit a certificate issued by the party’s home jurisdiction which confirms that there is no legal bar to the party marrying in terms of the law of the home jurisdiction.
18.There are some exceptions in section 3(5) to the need to supply such a certificate. Subsection (2)(c) amends section 3(5) to provide that a certificate is not required if it would not be issued just because the parties to the marriage are of the same sex.
19.Section 7 of the 1977 Act allows a person who wants to marry outwith Scotland to apply to a district registrar in Scotland for a certificate in respect of a person’s capacity to marry. When applying, the person must submit certain documents to the registrar.
20.Subsection (3) amends section 7(1) so it refers also to the death certificate when a civil partnership has ended by death and an extract from the entry in the civil partnership register where civil partners are changing their civil partnership to a marriage.