THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CSG/681/03  

SOCIAL SECURITY ACT 1998

APPEAL FROM THE DUNDEE APPEAL TRIBUNAL UPON A QUESTION OF LAW

DEPUTY COMMISSIONER:  SIR CRISPIN AGNEW OF LOCHNAW BT QC

Appellant: Ms Isabella Bruce				          Respondent:  Secretary of State

Tribunal:  Dundee  			     Tribunal Case No:  U/05/089/2003/00321

DECISION OF DEPUTY SOCIAL SECURITY COMMISSIONER

Decision

1.	I hold that the tribunal erred in law. I consider that the facts are sufficiently well established by the tribunal for me to make the decision that the tribunal ought to have made. I hold that the claimant has not established that she was married by cohabitation with habit and repute. I therefore refuse the claimant’s appeal and confirm the decision of the Secretary of State issued on 25 November 2002 in which it was held that she was not entitled to bereavement benefit, because she was not married to the deceased.

Jurisdiction

2.	It is well established that the tribunal and the Commissioners have a jurisdiction to determine whether or not parties are married as an incidental question for the purpose of determining any question which is properly before the tribunal, but the decision is not binding on “the world”. As the Lord Justice General said in Brannan v Ross 1937 SLT 536:

“It is, however, now settled that, although the Court of Session has exclusive jurisdiction in declarator of marriage, other Courts, both civil and criminal, may entertain incidentally proof of a marriage for the purpose of determining any question which is properly before them. That principle was laid down in a workmen's compensation case (Turnbull v. Wilsons & Clyde Coal Co., 1935 S.C. 580) by the Lord President, who said (at p. 583): "It is inevitable that in litigations between strangers, and even in litigation between a soi-disant spouse and a stranger, the question should sometimes occur whether the soi-disant spouse is really such. Other questions of the same kind may arise - as to legitimacy, for example. It has never before been suggested that, because these questions involve status, therefore they cannot be determined incidentally to the litigation; although no doubt the effect of a decision between strangers, or between a stranger and a soi-disant spouse, obtained in such circumstances, goes no further than is necessary for the determination of the dispute with which the litigation is concerned, and (unlike the judgment pronounced in a declarator of status where the proper parties are called) has no effect whatever contra mundum." That observation by the Lord President was made obiter, for a narrower ground was found for deciding the point in dispute. Nevertheless I think that the principle which it affirms is well founded.”

3.	It therefore remains open to the claimant to seek a declarator of marriage in the Court of  Session, which would be binding as a declarator of status on everyone.

Background

4.	The claimant made a claim for bereavement benefit. The decision maker determined:

“It has not been established and cannot be presume that there is a valid marriage between [the claimant] and [H].  This is because a marriage ceremony did not take place and an irregular marriage by cohabitation with habit and repute has not been established.

Accordingly [the claimant] is not entitled to bereavement benefits because [H] was not her husband.”

Appeal to the tribunal

5.	The claimant appealed to the tribunal. On 17 June 2003 the tribunal allowed the appeal. The decision notice was in the following terms:

 “The Appellant has established a Scots law irregular marriage by cohabitation with habit and repute with the late [H].  The neighbours thought they were married, they thought of themselves as married and acted as a married couple and did have tacit consent re getting married.  The Appellant is accordingly entitled to Bereavement benefit on [H’s] contribution record – the Decision Maker should make enquiries to determine that other conditions are satisfied and this rate payable.”

The facts found by the tribunal were as follows:

“The Facts
1.	On 3/7/02 [the claimant] applied for bereavement benefit in respect of the death of [H] who died on 20/6/02].
2.	[The claimant] started going out with [H] during July 1981.  In November 1983 [H] moved in with [the claimant] at [the claimant’s address].
3.	[H] and [the claimant] discussed getting married and always intended to get married.
4.	[H] and [the claimant] both had children who knew that they were not legally married but [the claimant’s] daughters referred to [H] as dad and treated [H] and [the claimant] for all purposes as if they were a married couple.  Apart from going through a marriage ceremony [H] and [the claimant] were a married couple in every other way and exchanged Christmas and Birthday cards with husband and wife annotations.
5.	[The claimant] never took [H’s] name but was often referred to as [Mrs R] and a lot of the neighbours thought that they were married.  [H] and [the claimant] had separate bank accounts with their own name on them.  The tenancy of the house was a joint tenancy.
6.	[H] and [the claimant] were both free to marry.
7.	[H] wanted to obtain a special license to get married before he died but [the claimant] did not want a marriage ceremony when [H] was dying.
8.	[H] and [the claimant] were living together as if they were husband and wife although they had not actually got married, they always intended to get married and would have got married on their 60th Birthday and had a joint party, they were both 60 within a few months of each other.
9.	[H] and [the claimant] had tacit consent to marry and this combined with the long period of co-habitation with habit and repute constitutes a marriage.”

Appeal to Commissioner

6.	The Secretary of State appealed to the Commissioner on the grounds that the facts found do not disclose “habit and repute” so as to raise the presumption of marriage or if they do, then the facts found show that the presumption was rebutted. The Secretary of State founds on the fact that the children knew that the claimant and H were not married and hence this did not support “repute”. He further suggested that the presumption was rebutted mainly because of finding 8 that “they always intended to get married and would have got married on their 60th birthday and had a joint party. …”

7.	The claimant’s representative seeks to rebut the submissions for the Secretary of State founding on Shaw v Henderson 1982 SLT 211 and Vosilius v Vosilius Lord Macfadyen, Court of Session, unreported 6 April 2000.
The law

8.	The law is reasonably straight forward and is set out in Clive, Husband and Wife, 4th Ed at 05.025:

“Cohabitation and repute do not in themselves constitute a marriage. Outward actings do not make a marriage. Mere consent does not in itself constitute a marriage either. Marriage requires both a mental element (mutual consent to marry) and an outward or factual element (nowadays either a regular marriage ceremony or cohabitation with habit and repute). Both are necessary. Neither is sufficient. If the outward element is proved, the consent will be presumed to have been exchanged, but this presumption can be rebutted. The theory of the present law on marriage by cohabitation with habit and repute is therefore that if a man and a woman cohabit as husband and wife in Scotland for a sufficient time and are generally held and reputed to be husband and wife and are free to marry each other, they will be presumed to have tacitly consented to be married and, if this presumption is not rebutted, will be legally married."

9.	In Ackerman v Logan’s Exrs 2000 SLT 37 [Extra Division] the court said:

“as stated in Clive on Husband and Wife (4th ed), paras 05.032 and 05.033, it is clear that it is essential for the establishment of a marriage by cohabitation with habit and repute that, in modern language, the parties must have been held and reputed to be husband and wife and that the repute must have been sufficiently general. These are matters of fact.”

It was also noted in Ackerman and one of the grounds of the Lord Ordinary’s decision which was approved on appeal, was that the pursuer “called strikingly few witnesses to support her contention” about habit and repute. 

10.	If habit and repute are established, the presumption of tacit consent may be rebutted. Clive [05.038] refers to five circumstances in which the presumption may be rebutted. The third ground is relevant in this case where he say:

“The third type of case is that in which there is direct evidence that the parties intended to get married at some stage in the future and in the meantime consented only to a relationship which left both free.  The pursuer in an action for declarator of marriage by cohabitation with habit and repute who is asked why he or she did not have a regular marriage is in a difficult position.  The safest reply will be along the lines “We regarded ourselves as married without the need for that” but such an attitude is unusual and the pursuer may well blurt out something like “We always intended to get married sometime but kept putting it off” or “We are not ready to commit ourselves”.  The pursuer will then be well on the way to rebutting the presumption of consent to marriage.  However, an intention to have a ceremony in the future perhaps to obtain a marriage certificate and greater security, is not necessarily inconsistent with tacit consent to present marriage, although it will certainly not help the pursuer’s case.  Nor is an intention to be regularly married, which is abandoned early enough in the relationship.  The parties could well adopt the attitude “We intended at one stage to have a regular marriage but gave up this idea and just regarded ourselves as already married”.  A couple who have been living together as husband and wife for many years may well not wish to go through a marriage ceremony for fear of scandal.  Again, such a disinclination is not necessarily inconsistent with tacit consent to present marriage.”

11.	The real difficulty in any case is to see how the facts fit the principles. First the facts have to show that the parties “are generally held and reputed to be husband and wife”; it then has to be shown that they were free to marry; and finally any evidence rebutting the presumption will have to be assessed.

The facts in the present case

Habit and repute

12.	The Secretary of State does not dispute that the claimant and H cohabited for long enough. I agree with that concession. It was also found by the tribunal, and not disputed, that they were free to marry.

13.	Turning to “repute” there are limited findings on repute; finding 4 that “both had children who knew they were not legally married” and finding 5 “a lot of the neighbours thought they were married”. In the reasons it is said that, “[The claimant] also explained that most of the neighbours thought that they were married …”. This accords with the findings made by the decision maker recorded in the submission to the tribunal at paragraph 13 on page I. I also note, that like in Ackerman, few witnesses were called to support repute.

14.	In my opinion, on the findings made by the tribunal it could not be said that the repute was “sufficiently general” to establish the presumption that the parties were married. The children knew that they were not legally married. It was only “a lot of the neighbours” or “most of the neighbours” who are said to have thought they were married. There is no evidence of any wider repute and even within the neighbours the repute appears to have been divided. As Lord Patrick said at page 322 in Nicol v Bell 1954 SLT 314 (2nd Div):

“… the tacit consent to be man and wife may 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 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 keeper 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 parties were man and wife.”

He accepted that the repute need not be universal, but held that it must be “substantially general and undivided” and that marriage was “not lightly to be affirmed”. 

15.	I consider that on the evidence before the tribunal, approaching the matter on the basis that marriage was not to be lightly affirmed, that the tribunal could not reasonably hold that the repute was substantially general and undivided. The fact that they had separate bank accounts in their own name, would suggest that those they dealt with when making payments would not had had a repute of marriage. The use of their own names, albeit the claimant was “often referred to as Mrs …”, again suggests that in the general community they were not holding themselves out as man and wife. These contra indications had to be balanced against the fact that it was said that “a lot of neighbours thought that they were married”. In Vosilius, relied upon by the claimant, Lord Macfadyen considers the point that some people “knew” that the parties were not married and said:

“[27] It was clear in the evidence of the pursuer and her sons that they recognised that there were people who "knew" that she and the deceased were "not married". It seems to me to be virtually inevitable that that would be so. In my view, however, it is reasonably safe to infer that that evidence related to people who knew that there had been no ceremony of marriage, who equated being married with having gone through a ceremony of marriage, and who therefore "knew" that they were not married. I do not consider that the existence of a number of persons in that category rules out a conclusion that the pursuer and the deceased were generally reputed in the community in which they lived to be man and wife.”

There would appear to have been no evidence before the tribunal of how the neighbours who knew that the parties were not married approached the matter, so that a decision could be made on whether or not they fell into the category described by Lord Macfadyen. He never-the-less puts the test as “generally reputed in the community … to be man and wife”.

16.	I therefore hold that the tribunal erred in law, in that there was insufficient evidence before the tribunal from which the tribunal was entitled to find that there was a general repute that the parties were married.

Rebutting the presumption

17.	If I am wrong on that point and the tribunal can be taken to have validly found that there was a sufficiently general repute from which tacit consent could be inferred, then the question arises as to whether or not the presumption established has been rebutted by the evidence.

18.	The Secretary of State founds on the findings that the parties “discussed getting married and always intended to get married” [Finding 3], “they always intended to get married and would have got married on their 60th birthday and had a joint party” [Finding 8]. The reasons also note that the claimant explained that she and H “had always intended to get married but wanted to wait until they were both 60 and have a joint party”. These facts are said to rebut any presumption of tacit consent that might be inferred from the cohabitation with habit and repute. It is a submission that was made to the tribunal [Page J paragraph 14.] It is clear from the Statement of Reasons that the tribunal did not address or consider this submission. That is an error of law.

19.	I also hold that the evidence of intention to get married and the intention to get married at the age of 60 and have a joint party clearly rebuts any presumption of tacit consent that might be inferred from the cohabitation with habit and repute. To have found otherwise, as the tribunal has done, is in my opinion an error of law. 

20.	If parties “always intended to get married” I cannot see how it can be presumed that they had tacitly consented to get married at some time in the past during the cohabitation. In Clive at 05.038 the author says in putting a hypothetical question to a pursuer in an action of declarator that:

“… the pursuer may well blurt out something like “We always intended to get married sometime but kept putting it off” …. The pursuer will then be well on the way to rebutting the presumption of consent to marriage.”

In MacKenzie v Scott 1980 SLT (Notes) 9, the Lord Ordinary noted:

“… the pursuer herself really destroyed any suggestion that there had been tacit consent to marriage by her evidence that she and James Scott had discussed getting married and had contemplated getting married in the early spring of 1976. She stated that she knew that they were not married and that by the latter days of their cohabitation 'she wanted to get married'. As I understood her evidence it was not merely that she and James Scott were to go through a formal ceremony of marriage in the spring of 1976 but that they were to 'get married', i.e. become married persons. She stated that she did not feel that the law would treat them as married. …

No doubt they acted most of the time as if they were married, but it is plain that each of them knew that their relationship was something less than marriage, and that far from ever having tacitly consented to marriage they merely had a future intention to marry.”

I am of the opinion that finding 5 falls clearly within the same approach. The parties “discussed getting married and always intended to get married”. They seem to have gone as far as fixing a date, namely their 60th birthday. I therefore hold that on the evidence, where there is nothing to rebut finding 5, that the tribunal was not entitled to hold that the presumption had not been rebutted. While on its own finding 7 [deathbed licence] might not have been fatal to rebut the presumption, in context of the other findings, I consider that finding also supports a finding that H did not consider himself to be married and wanted to rectify the position before he died.

21.	The claimant founds on Shaw v Henderson 1982 SLT 211 and no doubt on the passage:

“It is well settled that the repute from which alone the inference can arise must be general, and the difficulty for the pursuer here is that although the repute was general inasmuch as her neighbours and social companions regarded her as married, she herself admitted and there was evidence to the same effect from some of the relatives that her own relatives knew that she and Henderson were not married and indeed that the couple had made arrangements to be married on 24 February of the year in which Henderson died. Her close friend Sandra Byrn deponed that although a lot of folks thought the two were married the pursuer had confided in her that she was not. I think however that the difficulty arising from that evidence may be more artificial than real. Fairly read, what it amounts to is that the knowledge of which the pursuer and the relatives were speaking was knowledge that the pursuer and Henderson had never gone through any form of marriage, and that interpretation is borne out by her explanation for postponing the ceremony until she knew she was pregnant, viz., "the thought of the upheaval". That would appear to me to indicate not so much repudiation of the marriage state as distaste for the upset of a marriage ceremony, and particularly of having the ceremony at a date long after she had been accepted as a married woman by neighbours and associates. Unlike the situation in England where as I understand it repute is relevant only as evidence that the parties had gone through some valid form of marriage, all that requires to be inferred under Scots law is that the parties tacitly consented to the status of a married couple.”

I do not consider that Shaw assists in this case. There appears to have been evidence that the pursuer was upset at the thought of having a marriage ceremony so long after she had been accepted as a married woman. In the present case the claimant and H were planning a marriage on their 60th birthday and “a joint party”. That appears to me to be an intention to make a very public announcement about the proposed marriage, which is very different from Shaw¸ where the pursuer was upset at the thought of the marriage ceremony.

22.	For all these reasons I hold that the tribunal erred in law. I consider that there is sufficient evidence in the papers and the findings of the tribunal for me to take the decision that the tribunal ought to have taken. I therefore reverse the decision of the tribunal and confirm the decision of the Secretary of State, that the claimant has not established a marriage by cohabitation with habit and repute and is therefore not entitled to bereavement benefit.

					(Signed)
					Sir Crispin Agnew of Lochnaw Bt QC
					Deputy Commissioner
					Date:  21 January 2004