Courts - Scotland
Earlier this month, the Scottish Executive unveiled
radical plans to reform divorce law and parental rights. Leonard
Mair, Head of Family Law at Morton Fraser, discusses the proposals.
There has been a tendency for politicians to be cautious about
introducing dynamic reforms to family law – possibly
because this is indisputably an area that affects us all –
and where one does not need to be an "expert" in
order to express a view. Votes count after all and there have
been powerful conflicting lobbies that make this a political
Consider the record ... We have the key pillars of the Divorce
(S) Act 1976 (which introduced non fault grounds of divorce);
the Matrimonial Homes etc. (S) Act 1981 (providing a measure
of protection to cohabitees); the Family Law (S) Act 1985
(providing for the first time a framework of principles for
financial provision on divorce); and the Children (S) Act
1995 (which adopted in large measure the proposals of the
European Convention on rights of the child and which was intended
to radically alter our thinking on parental rights and responsibilities
[PRRs]).These were all significant Acts that changed lives.
There have been other reforms of course, but of a perhaps
less fundamental nature, and where the outcome was easier
to achieve in political terms.
Now, consider the social changes within the UK since the 1960s.
They have been enormous, but, in general, the law has been
slow to recognise the impact of both demographic and social
change in this sector. There was a hope that the Scottish
Executive would adopt a dynamic approach and that the needs
of Scottish citizens, at least, would be addressed. We had
a false start with the Consultation paper "Improving
Scottish Family Law" in 1999 – and although parts
of it did get the length of a White Paper in 2000 , it eventually
disappeared into the abyss. A great many organisations (including
my own firm's the Family Law Team at the author's firm) spent
a considerable amount of time participating in the consultation
process and the disappointment at the lack of a tangible outcome
was palpable – both with clients and lawyers alike.
This was followed by the government's much hailed "Year
of the family" when nothing much happened at all (in
legislative terms) that was of benefit to families. Surely
a lost opportunity! Family lawyers in Scotland may be forgiven
therefore for not holding their breath.
Change is now needed. The Scottish Executive have issued a
new Consultation Paper -"Improving Family Law in Scotland".
It advises us that one third of marriages end in divorce typically
after around thirteen years; cohabiting couples make up 7%
of Scotland's households; and around 8% of households in the
UK have stepchildren in them. Against that background, the
hope must be that the Scottish Executive current proposals
will be pursued to a sensible outcome and within an appropriate
time scale. At least one of the proposed reforms goes back
to the Thatcher era and has still not seen the light of day!
The Consultation Paper highlights seven key areas. However,
Annex A to the paper also contains a collection of "technical
amendments" which should not be overlooked. The seven
key areas are divided into three subgroups – those in
respect of which there are "firm proposals", those
where a "settled view has not yet been reached"
and those where "views are sought".
PRRs for unmarried fathers, separation as ground for divorce,
and protection against domestic violence
The first sub group proposes three changes concerning PRRs
for unmarried fathers, the reduction of non cohabitation periods
required for divorce, and updates to domestic violence provisions.
The proposal provides that "From the date at which legislation
is commenced, joint registration of a child's birth by unmarried
parents will confer PRRs on the mother and the father. (At
present only mothers secure PRRs). For unmarried parents who
have already registered a birth, the use of PRRs will be promoted".
The proposal is to "Reduce the periods of separation
constituting grounds for divorce from 5 years without consent
to 2 years; and from 2 years with consent to 1 year. This
should lessen the acrimony associated with fault-based divorces
and enable couples who are determined to end their marriage
to do so without unnecessary conflict and recrimination and
allow parents and children to move on".
It is proposed to "Amend domestic abuse legislation to
ensure that protection extends to cover the victim's everyday
life and offers protection to vulnerable cohabitants as well
These issues were all proposed previously and it would appear
that the Scottish Executive are sufficiently satisfied with
the weight of support previously given to make these firm
proposals. The anecdotal evidence suggests that the legal
profession in Scotland will support these changes.
Protection of cohabitants and Step-Parents PRRs
The second sub group proposes the following changes:-
The new rules would "create legal safeguards for cohabiting
couples including fair division of household goods and money/property
from housekeeping acquired during the period of cohabitation
and the right to apply to the court in cases of financial
hardship on the breakdown of a relationship and for a discretionary
share of a deceased partner's estate in the event that one
It is proposed that "where a married step-parent wishes
to secure PRRs for their step-child and both birth parents
are in agreement, as an alternative to applying to court,
an "SPPRRA" can be completed and registered and
that action will confer PRRs on the step-parent".
This sub group provides much food for thought. Cohabiting
couples form a significant percentage of households in Scotland
and that figure is likely to increase. Women who cohabit and
who have children have historically been the group most likely
to suffer financial prejudice on separation. That said, it
is interesting to note that it is proposed this time round
that limited rights should be extended not only to opposite-sex
couples but to same-sex couples. Whatever the theory might
be, there is a widespread perception that in practice the
law does not currently provide appropriate and fair protection
to such vulnerable groups. The majority of cohabiting couples
probably have little or no appreciation of any legal rights
or obligations that may exist between them. Potential remedies
based on constructive trusts, recompense or indeed marriage
by cohabitation with habit and repute tend to be avoided by
lawyers and clients alike on the grounds of cost, demanding
evidential requirements and uncertainty of outcome. There
are few modern reported cases on these topics. There continues
to be a widespread misunderstanding in Scotland that the term
"common law wife/husband" has legal significance.
Unnecessary law is probably undesirable, but experience in
legal practice suggests that this is indeed an area that needs
to be addressed, particularly since many couples seem to drift
into cohabitation scenarios specifically to ease financial
Important and necessary organisations such as Stepfamily Scotland
have been able to provide valuable insight into the needs
of families from information gleaned from their Helpline and
outreach work. At the moment there is no express legal provision
for step families, yet, the demographic predictions suggest
that in just a few years time, the majority of families with
children in Scotland will, in fact, be in step family relationships.
A step-parent currently has no PRRs and cannot acquire same
without going to court (even if the birth parent has no objection).
This is a common sense, facilitative proposal that allows
for practical parenting. It would enable step-parents in established
family units to make day to day decisions in connection with
the upbringing of their children with legal authority. Consider,
for example, the step-father on holiday with his step-son
who then suffers a serious injury. At the moment he has no
legal authority to allow doctors to carry out medical procedures.
Birth parents are not prejudiced by this proposal.
The third sub group considers the extension of contact rights
to the wider family and related practical aspects.
The Scottish Executive does not believe that contact rights
should be extended to the wider family but is nonetheless
interested in canvassing on the issue. "There has been
pressure to introduce a right of contact for grandparents.
The Executive does not consider this to be appropriate but
is keen to canvass all views on how the difficult area of
promoting contact with wider family can best be achieved where
voluntary agreements cannot be reached".
"Views are sought on coverage and dissemination of information
on family law, on the support available to families with relationship
difficulties or in transition, and on experience of using
family law and ideas for improvement".
It is perhaps an indication of the relative failure of the
traditional family unit in modern times that grandparents
and other family members seem nowadays to be more litigious
in the interests of children. Experience in legal practice
and a number of reported cases suggests that this may be so.
However, whether or not grandparents (or any other discreet
family sub group) should be given a right of contact to children
in the family is another matter. In the author's view, it
is inappropriate. At the moment, anyone with "an interest"
can apply to the court for PRRs. The court has the power and
the discretion to look at all matters before making a decision
in the best interests of the child.
The proposed reforms will generally be welcomed
in Scotland by those who deal with families in transition,
whether they be lawyers, Charities, Counselling Services,
Faith Groups or otherwise. As always, the devil will be in
the detail, but it will be a major step forward if the principles
behind the reforms can be agreed shortly and a White Paper
issued before the end of the year. The implementation of reform
will fall in large measure on the legal profession, but our
profession works in association with many other organisations
who provide a key role in the infrastructure- often Charities,
such as the Family Mediation Service, Couple Counselling and
Stepfamily Scotland – several of whom are dependant
upon funding from the Scottish Executive. Appropriate and
guaranteed funding plans should be put in place to ensure
the survival of such organisations without whose support there
would be rather more in the way of defended litigation. This
is an area where "joined up thinking" across the
various service delivery organisations is paramount, and it
is within the gift of the Scottish Executive to deliver this.
This time, please, let's not be disappointed.
Leonard Mair is Head of Family Law at Morton
As can be clearly seen from the above, Scotland
will not have any real changes made to the current situation.
PPR with agreement of both natural parents and the rights
of stepparents to acquire it just line up more cases for dispute
at the lawyers’ mercy.
What a shame the natural biological parents
are not given better protection for the welfare of the child.
Same games as usual for the family law system and a blatant
unwillingness to address the issues.