Last night the Scottish Parliament passed important and
controversial changes to Scots Family Law. It is anticipated that
the Family Law (Scotland) Bill will become law in April 2006. This
decision comes hot on the heels of the introduction of Civil
Partnerships for same sex couples in terms of the Civil Partnership
Act 2004 which became law on 5th December 2005. As of next week the
first Civil Partnerships can be registered in Scotland.
Existing Law
The Divorce (Scotland) Act 1976 was itself a landmark piece of
legislation in the history of Divorce Law in Scotland. As amended
by the Gender Recognition Act 2004, it provides the circumstances
in which a divorce can be obtained today. In terms of the 1976 Act,
divorce is available where the marriage has broken down
irretrievably. This can only be established by proving that one of
five factual circumstances exists. These are as follows:-
- Adultery
- Unreasonable Behaviour
- Desertion
- Two years non cohabitation with consent
- Five years non cohabitation
These five circumstances have been typically referred to as "the
grounds for divorce". For many years the law has been regarded as
misleading in this respect. It has also been criticised as placing
too much emphasis on fault and distorting the bargaining position
of spouses in relation to children and finances.
New Law
In terms of the Family Law (Scotland) Bill the separation
periods will be cut from five years to two years and two years to
one year respectively. The rarely used "ground" of desertion which
has been a part of Scots Law since 1573 will be abolished. Neither
the fact that the divorce would cause one Party to suffer grave
financial hardship nor collusion will prevent the granting of
divorce.
Background
On 7th February 2005 the draft legislation was presented to the
Scottish Parliament. This particular Bill has been as a result of
over twenty years worth of planning. There were two Reports of the
Scottish Law Commission - the 1989 Report on the Grounds of Divorce
and the 1992 Report on Family Law. Whilst the Bill introduces a
number of other changes to Scots Family Law, it is the reduction in
the separation periods required for divorce as set out in Section
10 which have caused the most controversy.
Objections
The Roman Catholic Church in particular has voiced fears over
"quickie divorces" and it has been suggested that the changes will
undermine the institution of marriage. The legislation is described
by the Church and others as having caused "considerable disquiet
and concern". Despite these objections and a late attempt to
introduce an amendment providing for separation periods of eighteen
months and three years respectively the majority of MSP's have now
voted in favour of the new Law.
Some Other Changes
Parental Rights
At present unmarried fathers have no automatic rights and
responsibilities in respect of their children. These can only be
acquired by their marrying the mother of the children, entering
into an Agreement with her or obtaining a Court Order. In terms of
the Bill, unmarried fathers should automatically obtain parental
rights and responsibilities if they are registered as the child's
father on the Birth Certificate.
Cohabitants Rights
The Bill introduces a number of changes for cohabitants. Contrary
to the prevalent myth of the "common law marriage", the Law does
not meantime give rights to cohabiting couples to claim property or
financial support from the other on termination of their
relationship. The Bill will provide certain rights to cohabiting
couples to seek a share of household goods, money and property at
the end of a relationship. These rights will cover all couples who
are living together as husband and wife without the requirement for
the couple to sign any form of agreement stating that these rights
apply to them.
Matrimonial Homes
The scope of matrimonial interdicts will be extended to cover not
only the matrimonial home but should the threatened spouse require
it, any other home occupied by him or her, their place of work and
the School attended by any child of the marriage. There will also
be changes to Powers of Arrest.
Commentary
The Family Law (Scotland) Bill represents the most significant
piece of legislation in Scots Family Law in the last thirty years.
The Scottish Parliament has not been afraid to broach difficult
issues and to push through controversial legislation despite
vigorous opposition. Only the passage of time will enable us to
establish whether the new legislation has addressed satisfactorily
the perceived weaknesses of the current law of divorce.
Shaun George