Dalrymple v Dalrymple (1811) 2 Hag Con 54
Valid marriage created by words of present assent
A wife raised a claim against her husband for the restitution of conjugal rights. Due to family circumstances requiring secrecy, the matrimonial contract between the parties was formed by the exchange of written mutual promise. Thereafter, the parties conducted themselves as man and wife. Further acknowledgements of the nature of their relationship followed. Sometime later, the secrecy of the relationship was broken at the instance of the wife and the husband remarried.
The principal issue was the validity of a marriage of this kind according to the law of Scotland. Counsel for the wife argued that a valid marriage was constituted under Scots law in three types of case: (i) where the parties assume a marriage contract between them verbally at that moment; (ii) where the parties promise to enter matrimony at a future time and (iii) by virtue of public acknowledgements of matrimony. It was argued that the marriage between the parties met the criteria for all three types. The husband contended that the breaking of the condition of secrecy released him from the purported marriage contract.
The validity of the marriage was upheld by the court under Scots law. The judge referred to the opinions of Scottish legal academics. These opinions stated that the deliberate consent of the parties to enter into an agreement to take one another as husband and wife was sufficient to constitute a legal marriage despite the absence of a clergyman. The consent must be expressed per verba de praesenti (i.e. by words of present assent). Based on the correspondence between the parties it was therefore clear that a valid marriage had been created. Accordingly, the claim by the wife to conjugal rights was a just one and was upheld.