Doherty Or Cunningham Or Vosilius (AP) v Vosilius & Ors [2000] ScotCS 100 (6 April 2000)

Doherty Or Cunningham Or Vosilius (AP) v Vosilius & Ors [2000] ScotCS 100 (6 April 2000)

The pursuer and deceased cohabited as husband and wife for over eighteen years, were generally reputed to be married in their community, and there was no evidence rebutting the presumption of tacit consent; therefore, a marriage by cohabitation with habit and repute is constituted as of 6 November 1977.

Citation
[2000] ScotCS 100
Parties
Pursuer: Sarah Doherty or Cunningham or Vosilius (AP); First Defender: Patrick Vosilius; Second Defender: Second Defender; Third Defender: Third Defender; Fourth Defender: Fourth Defender; Fifth Defender: Railway Pension Trustee Company Limited; Sixth Defender: Lord Advocate
Jurisdiction
Scotland
Judgment Date
06 April 2000
Procedural Posture
Action of Declarator of Marriage by Cohabitation With Habit and Repute and Interdict / Judgment After Proof
Outcome
Declarator of marriage granted; interdict granted; expenses reserved.
Legal Topics
Marriage by Cohabitation With Habit and Repute, Widow's Rights, Distribution of Estate, Tacit Consent, Repute
Family Law Succession Law Marriage by Cohabitation With Habit and Repute Widow's Rights Distribution of Estate Tacit Consent Repute

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Parties

Sarah Doherty or Cunningham or Vosilius (AP)

Pursuer

Patrick Vosilius

First Defender

Second Defender

Second Defender

Third Defender

Third Defender

Fourth Defender

Fourth Defender

Railway Pension Trustee Company Limited

Fifth Defender

Lord Advocate

Sixth Defender

Procedural Posture

Action of Declarator of Marriage by Cohabitation With Habit and Repute and Interdict / Judgment After Proof

Legal Issues

  1. 1 Whether pursuer and deceased cohabited as husband and wife for a sufficient period
  2. 2 Whether they were generally reputed to be husband and wife
  3. 3 Whether presumption of tacit consent to marriage was rebutted

Ratio Decidendi

The pursuer and deceased cohabited as husband and wife for over eighteen years, were generally reputed to be married in their community, and there was no evidence rebutting the presumption of tacit consent; therefore, a marriage by cohabitation with habit and repute is constituted as of 6 November 1977.

Court Disposition

Declarator of marriage granted; interdict granted; expenses reserved.

Orders

  • Decree of declarator of marriage in terms of first conclusion of summons
  • Interdict in terms of second conclusion of summons restraining distribution of estate without regard to pursuer's widow's interest