The news that the state of New York is taking steps to make it possible to apply for a marriage licence accessible online, and to validate remote civil ceremonies will come as welcome news to couples intending to marry. Our usual social ceremonies around significant life events including marriages, births and deaths have been altered due to the outbreak of the pandemic. For those who had planned to marry, the inability to attend ceremonies and have celebratory events has caused disappointment at best, distress at worst.
Residents of the state of New York will soon be able to marry despite the lockdown. New York Governor Andrew Cuomo has signed an order allowing online marriages. It is anticipated that many couples may choose to tie the knot via video conferencing facilities. Finding a workaround of social distancing measures may be seen by many as a solution to a difficult issue, but what is the legal status of an online marriage?
Can I get married online in Scotland?
The short answer is that an online marriage will be legally recognised if the law of the state or country in which the proposed marriage would take place allows that. In short, while New Yorkers will be able to legally marry online; sadly the vast majority of the world’s population will not – at least yet.
While the place of marriage does not determine which legal system would apply in the event of a separation, it does matter to the issue of whether or not a marriage is “legal”. As matters stand in Scotland it is not possible to apply for a licence to marry online, nor is it possible to conduct a legally recognised ceremony remotely.
In Scots law, the legal validity of a marriage is primarily determined by the Marriage (Scotland) Act 1977. That piece of legislation sets out who can marry, and the legal requirements to make a marriage legally valid. While the legislation has occasionally received an update (for example to enable same sex couples to marry) it is not yet possible to carry out the preliminary requirements of a ceremony remotely.
Would a New York marriage stand in Scotland?
A Scottish couple who fulfilled the residency requirements necessary to make an application in the State of New York could make that application, conduct the ceremony remotely and their marriage would attract legal recognition. Were the couple to return to Scotland and separate some time later, then the Scottish legislative framework would apply when it comes to resolving the financial and child related issues which require to be resolved, assuming the requirements for establishing jurisdiction in Scotland were fulfilled. That particular issue is complex and worthy of specialised advice should you find yourself in that situation.
A further consideration for those intending to marry at this time is whether or not to broach the issue of entering in to a pre nuptial agreement. Such an agreement can be useful in identifying parameters around financial provision in the event of subsequent separation. Again, the issue of pre nuptial agreements is a complex issue, and it is important for those considering whether such an agreement would be advisable to seek advice from a solicitor specialising in family law and who has experience of dealing with complex family law issues.
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Time will tell whether online marriages will be popular. It remains to be seen whether other states or countries will follow the lead of the New York governor and validate marriages conducted remotely. Whatever your circumstances, we are here to help should you wish to discuss any aspect of marriage of family law in Scotland.
Our family law team is made up of experienced family law solicitors around the country. Many of our team are trained in various methods of dispute resolution, including mediation and collaborative practice, and are Accredited by the Law Society of Scotland as specialists in their field. Head of Family Law Amanda Masson holds the COSCA qualification in Counselling Skills.