[2004] UKSSCSC CSG_681_2003 (21 January 2004)

Factual and Procedural Background

The Plaintiff made a claim for bereavement benefit following the death of the deceased. The decision maker initially determined that there was no valid marriage between the Plaintiff and the deceased, as no marriage ceremony had taken place and an irregular marriage by cohabitation with habit and repute was not established. Consequently, the Plaintiff was found not entitled to bereavement benefits.

The Plaintiff appealed to a tribunal, which allowed the appeal on 17 June 2003, finding that the Plaintiff had established an irregular marriage by cohabitation with habit and repute based on several findings, including the couple's long cohabitation, the neighbours' belief that they were married, and the couple's intention to marry.

The Secretary of State then appealed to the Commissioner, arguing that the facts did not disclose the necessary "habit and repute" to raise the presumption of marriage or that the presumption was rebutted by evidence, particularly the knowledge of the children that the parties were not legally married and the parties' intention to marry in the future.

The Deputy Commissioner reviewed the case and found that the tribunal erred in law by concluding that the Plaintiff had established a marriage by cohabitation with habit and repute. The decision of the Secretary of State denying bereavement benefit was confirmed.

Legal Issues Presented

1. Whether the Plaintiff had established a valid marriage by cohabitation with habit and repute under Scots law.
2. Whether the presumption of marriage arising from cohabitation with habit and repute was rebutted by evidence of the parties' intention to marry in the future.
3. The extent and nature of the jurisdiction of tribunals and Commissioners to determine marital status incidentally in benefit claims.

Arguments of the Parties

Secretary of State's Arguments

• The facts found do not disclose sufficient "habit and repute" to raise the presumption of marriage.
• The knowledge of the parties' children that the Plaintiff and deceased were not legally married negates the necessary repute.
• The presumption of marriage is rebutted by the parties’ intention to marry at a future date, evidenced by discussions and plans for a marriage on their 60th birthday.

Plaintiff's Arguments

• Relied on precedents such as Shaw v Henderson and Vosilius v Vosilius to argue that repute need not be universal and that knowledge of no formal ceremony does not preclude a general repute of marriage.
• Asserted that the couple cohabited as husband and wife, were generally reputed to be married by neighbours, and had tacit consent to marriage.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming that tribunals have jurisdiction to determine marital status incidentally, but such decisions do not bind the wider world and a declarator of marriage remains available in the Court of Session.

The tribunal’s factual findings were reviewed, particularly regarding the elements of cohabitation, habit, and repute. While cohabitation and freedom to marry were conceded, the court found the evidence of "repute" insufficiently general and undivided as required by precedent. The knowledge of the parties' children that the couple was not legally married and the divided opinion among neighbours undermined the necessary general repute.

The court further analyzed the presumption of marriage arising from cohabitation with habit and repute and whether it was rebutted. It found that the parties’ intention to marry at a future date, specifically on their 60th birthday with a joint party, constituted direct evidence rebutting any presumption of tacit consent to marriage. The tribunal erred in failing to address this rebuttal evidence.

The court distinguished the present facts from precedents relied upon by the Plaintiff, emphasizing that the intention to marry publicly and formally in the future is incompatible with a presumption of present marriage by tacit consent.

Accordingly, the court reversed the tribunal’s decision and confirmed the Secretary of State’s decision that the Plaintiff was not married by cohabitation with habit and repute and thus not entitled to bereavement benefit.

Holding and Implications

DISMISSED: The Plaintiff’s appeal is refused.

The court held that the Plaintiff did not establish a marriage by cohabitation with habit and repute. The presumption of marriage was rebutted by evidence of the parties’ intention to marry in the future. Consequently, the Plaintiff is not entitled to bereavement benefit.

This decision confirms the strict application of the requirements for establishing marriage by cohabitation with habit and repute under Scots law and clarifies that evidence of intention to marry later can rebut the presumption. No new legal precedent was created; rather, existing principles were applied to the facts.