Mackie v. Mackie and Others [1917] ScotLR 250 (02 February 1917)

Mackie v. Mackie and Others [1917] ScotLR 250 (02 February 1917)

Promise subsequente copula, when proved by competent evidence (writ) and followed by intercourse on the faith of that promise, constitutes a valid marriage under Scots law, with all legal consequences, and a declarator of such marriage is competent even after the death of one party. The only limitation is that the promise must be proved by writ if one party is deceased.

Citation
[1917] ScotLR 250
Parties
Pursuer: Janet Barclay or Mackie; Pursuer: James Mackie Barclay (infant son); Defender: William Mackie (Post Office, Pitlessie) and others; Counsel for the Crown: The Lord Advocate (Clyde, K.C.)
Jurisdiction
Scotland
Judgment Date
02 February 1917
Procedural Posture
Action of Declarator of Marriage and Legitimacy / Inner House, Second Division, After Report From Lord Ordinary
Outcome
Decree granted in terms of the conclusions of the summons.
Legal Topics
Marriage, Irregular Marriage, Promise Subsequente Copula, Declarator of Marriage, Legitimacy of Child, Proof After Death
Family Law Marriage Irregular Marriage Promise Subsequente Copula Declarator of Marriage Legitimacy of Child Proof After Death

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 25 Party arguments 2
Sign in to unlock

Parties

Janet Barclay or Mackie

Pursuer

James Mackie Barclay (infant son)

Pursuer

William Mackie (Post Office, Pitlessie) and others

Defender

The Lord Advocate (Clyde, K.C.)

Counsel for the Crown

Procedural Posture

Action of Declarator of Marriage and Legitimacy / Inner House, Second Division, After Report From Lord Ordinary

Legal Issues

  1. 1 Whether a marriage by promise subsequente copula can be declared after the death of one party
  2. 2 Whether such a marriage constitutes a valid marriage under Scots law
  3. 3 What standard of proof is required when one party is deceased

Ratio Decidendi

Promise subsequente copula, when proved by competent evidence (writ) and followed by intercourse on the faith of that promise, constitutes a valid marriage under Scots law, with all legal consequences, and a declarator of such marriage is competent even after the death of one party. The only limitation is that the promise must be proved by writ if one party is deceased.

Court Disposition

Decree granted in terms of the conclusions of the summons.

Orders

  • Found and declared that Janet Barclay or Mackie and the late William Mackie were lawfully married as of 17 September 1914.
  • Found and declared that James Mackie Barclay is their legitimate son.