Whale... or rabbit?

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 minefield.

Consider the record. We have the key pillars of the Divorce (Scotland) Act 1976 (which introduced non-fault grounds of divorce); the Matrimonial Homes etc (Scotland) Act 1981 (providing a measure of protection to cohabitees); the Family Law (Scotland) Act 1985 (providing for the first time a framework of principles for financial provision on divorce); and the Children (Scotland) Act 1995 (which adopted in large measure the proposals of the European Convention on rights of the child and which was intended to alter radically 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 family law team) 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! Scots family lawyers may be forgiven therefore for not holding their breath.

New day or false dawn?

Change is now needed. The Scottish Executive has issued a new consultation paper, “Improving Family Law in Scotland”. It advises us that one third of marriages end in divorce typically after around 13 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’s current proposals will be pursued to a sensible outcome and within an appropriate timescale. 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”.

The first subgroup proposes:

• in respect of PRRs for unmarried fathers, “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”.
• in respect of reducing the non-cohabitation periods required for divorce, “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”.
• in respect of updating matrimonial interdicts and exclusion orders, “Amend domestic abuse legislation to ensure that protection extends to cover the victim’s everyday life and offers protection to vulnerable cohabitants as well as spouses”.

These issues were all proposed previously and it would appear that the Scottish Executive is sufficiently satisfied with the weight of support previously given to make these firm proposals. Anecdotal evidence suggests that the legal profession in Scotland will support these changes.

Rights for cohabitants?

The second subgroup proposes:

• in relation to legal protection for cohabitants, “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 party dies”.
• in relation to Step-Parent PRRs Agreements, “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 subgroup 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 strains.

Step-parents and beyond

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 commonsense, 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 stepfather on holiday with his stepson 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 subgroup proposes:

• in relation to contact between children and the wider family, “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”.
• in relation to making the law work in practice, “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 suggest that this may be so. However, whether or not grandparents (or any other discrete family subgroup) should be given a right of contact to children in the family is another matter. In my 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.

Support the supporters

I believe that 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 dependent on 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 WS, Head of the Morton Fraser Family Law Team

The text of this article was first published on LawZone (www.thelawyer.com/lawzone)