A wealth of measures

We have waited a long time for the bill that was presented to the Scottish Parliament on 7 February 2005. Its genesis can be traced to two reports of the Scottish Law Commission: the 1989 Report on the Grounds of Divorce (Scot Law Com no 116) and the 1992 Report on Family Law (Scot Law Com no 135). These were followed by the Scottish Office’s consultation paper Improving Scottish Family Law (1999), the Scottish Executive’s Parent and Children: The Scottish Executive’s Proposals for Improving Scottish Family Law (2000), and finally Family Matters: Improving Family Law in Scotland (2004).

Within that gestation period some ideas emerged only to be dropped, including grandparents’ rights and step-parental responsibilities and rights agreements. Other ideas, such as dealing with the Wallis v Wallis problem, have been added. The following is not a comprehensive description of the details of what is a surprisingly wide-ranging bill, but identifies some of the highlights. Any opinion expressed hereafter is entirely personal, reflecting my previously published views.

Securer foundations

The Matrimonial Homes (Family Protection) (Scotland) Act 1981 is to be amended in a number of crucial ways. First, occupancy rights will be removed by the passing of two years during which the entitled spouse and the non-entitled spouse were not cohabiting and the home was not occupied by the non-entitled spouse. Secondly, the scope of matrimonial interdicts is to be extended so that they may cover, in addition to the matrimonial home, any other home occupied by the applicant, the applicant’s place of work and the child’s school. Thirdly, powers of arrest attached to matrimonial interdicts will no longer fall at the end of the marriage but will do so three years after their granting. Fourthly, “domestic interdicts” are created, being an equivalent to matrimonial interdicts but available to cohabitants (whether opposite-sex or same-sex).

Practicalities of divorce

The separation periods are to be reduced from two and five years to one and two years of non-cohabitation with and without (respectively) the defender’s agreement. A knock-on consequence is that desertion as a ground for divorce disappears. The importance of desertion lay solely in the fact that it allowed a two year non-cohabitation divorce to be obtained without consent: this will now be possible whether or not there is initial desertion. Two bars to divorce are also to go: the fact that one party may suffer grave financial hardship, and collusion. Grave financial hardship lost its significance as a bar when the Family Law (Scotland) Act 1985 made it one of the justifications for granting financial provision. Collusion is to disappear in recognition of the fact that while as a bar it made sense when divorce was truly an adversarial process, today the process is often in fact collusive or at least non-adversarial, and it is indeed good social policy to encourage this.

One of the most important changes (about which the Scottish Executive took many soundings without achieving broad consensus) is that in determining financial provision on divorce, the court is to be allowed to take into account fluctuations in the value of the matrimonial property after the relevant date. This is designed to overrule the unloved decision of Wallis v Wallis 1993 SLT 1348, but the bill as presented may well undergo redrafting before the best way to achieve that aim is identified. Another small but important practical change is that sheriff clerks are to be given the power to execute deeds necessary to ensure the transfer of property required by an order for financial provision: sheriff clerks already have this power in relation to heritable property and the bill extends it also to moveable property.

Parenthood or welfare?

Unmarried fathers’ rights was another issue upon which consensus could not be reached, though in the various consultations that preceded the bill there was a clear preponderance of opinion to the effect that the current situation (whether or not it was consistent with the ECHR) was not sustainable. I have long argued that to distinguish between male and female parents, and between married men and unmarried men, in relation to the parent-child relationship is sexist and status-based and is therefore contrary to the UN Convention on the Rights of the Child, as well as subverting the very ethos of the Children (Scotland) Act 1995 by absolving some men of their parental responsibilities. The position of the unmarried father is very substantially ameliorated by the bill, which grants parental responsibilities and parental rights to fathers if they are either married to the mother or registered as father. This will deal with most unmarried fathers, but it still distinguishes between male and female parents because the latter do not need to register themselves as parent before acquiring parental responsibilities and parental rights (and this distinction will survive for another 16 years since the provision is not to be retrospective).

It may be that this does not matter terribly, since registration is the means by which most unmarried fathers prove paternity. But the practical difference will lie with the man who is not registered but who claims to be the father (such as, for example, the ex-Home Secretary). Obtaining a declarator of paternity in itself brings nothing except financial obligation, and to obtain parental responsibilities and parental rights such a man would need also to seek an order under section 11 of the Children (Scotland) Act 1995 establishing that their granting would be in the welfare of the child. If proof, by whatever means, of paternity were to have the same effect as proof, by whatever means, of maternity then parental responsibilities and parental rights would follow the fact of parenthood rather than the judgment of welfare.

Cohabitants and financial rights

Cohabitants currently have a range of important private law, taxation and social security rights. The bill grants a few more, including some highly significant rights. The definition of cohabitant, if somewhat clumsily, includes same-sex couples who have not registered their relationship as a civil partnership. The rules contained in sections 25 and 26 of the Family Law (Scotland) Act 1985 (presumption of equal share in household goods and in savings from housekeeping allowances) are extended to cohabitants. Much more importantly, an entirely new set of rules is provided for financial readjustment between the pair at the end of the relationship, either on death or on separation. When one cohabitant dies, the survivor will be able to go to court to claim a portion of the deceased’s intestate estate, it being for the court to determine what portion to award, taking account of a variety of facts but being capped at the amount that a spouse would be entitled to in similar circumstances. And when the cohabitants separate for any reason before the death of one of them, either may seek a court order similar to but much more restricted than those available under section 8 of the Family Law (Scotland) Act 1985 for divorcing spouses. Putting it in the language of section 9 of that Act (which the bill does not do), there will be two justifications for a cohabitant’s claim for financial provision: (i) the sharing of any economic burden of caring after the end of the cohabitation for a child (currently, of the cohabitants), and (ii) the harmonisation of the economic advantages and disadvantages obtained or suffered by the parties in the interests of the other or of any child of the relationship.

Same-sex couples

The Civil Partnership Act 2004 made a bit of a hash of the Scottish provisions (the blame for which lies with whoever insisted on sending the matter to Westminster). Nevertheless the opportunity has been taken in the current bill to deal with some of the omissions and anomalies. Perhaps most importantly, the Matrimonial Homes (Family Protection) (Scotland) Act 1981, which is at present limited to married couples and opposite-sex cohabitants and which was extended to civil partners by the 2004 Act, will be further extended by the bill to same-sex cohabitants. Other omissions are likely to be resolved as the bill makes its way through the legislative process, such as including same-sex cohabitants in the provisions of the Civil Evidence (Family Mediation) (Scotland) Act 1995.

A long time coming

There are various other crucial amendments contained in this important bill and doubtless more will be added during its passage, together with substantial amendment to highly complex issues. While the political climate has clearly altered since most of the changes were first mooted, the social imperative for the changes was not noticeably less pressing 15 years ago than it is today. The delay may be explained by the change of government, followed by devolution, followed by the Scottish Executive’s increasing predilection for consultation. Given the consultations that the Scottish Law Commission undertakes in any case, one is left wondering whether the Executive’s approach is truly based on a belief that this will lead to better law, or a belief that the process will allow it to be seen to be consulting the people. Defensive government does not necessarily create bad law, but it does mean that good law is a long time coming.