Three proposals

Family law in the United Kingdom remains dynamic and, it seems, ever-changing. The great modernising statutes of the 1980s and 1990s are already overshadowed by developments like the Civil Partnership Act 2004, the Gender Recognition Act 2004 and the Family Law (Scotland) Act 2006. The pace of change shows no sign of slowing, and three new proposals of far-reaching import made this summer are worth paying some attention to, even before their enactment into law.

The Human Tissue and Embryos Bill

In May, the UK Department of Health published for consultation a draft Human Tissue and Embryos Bill, which is designed substantially to amend and update the 1990 Human Fertilisation and Embryology Act. Two proposals deserve particular notice.

First, the existing s 13(5) of the 1990 Act is to be scrapped. This requires the providers of infertility treatment to take account of the welfare of any child who may be born as a result of the treatment, “including the need of that child for a father”. It is difficult to see what practical effect this odd provision ever had, for the Act did not include any rule to the effect that treatment cannot be provided to single women (or female couples). Yet the provision had a clear symbolic message – that the law preferred children to be born to heterosexual couples. Now, few doubt that it is indeed good for any child to have a father-figure in his or her life, but it is likely that equally few people today believe that the absence of such a father-figure is so contrary to a child’s welfare that the law should strive to prevent the child’s very birth. The removal of s 13(5) is to be welcomed.

The second proposal of note concerns s 28(2) and (3). This is the provision that confers paternity, when a child is born after infertility treatment to a heterosexual couple, on the male member of the couple when he is not genetically the father. When the Civil Partnership Act 2004 was being debated, there was a hope that this provision would be extended to allow same-sex couples (in practice, female couples) to gain equivalent advantage and that, in Scotland, the presumption of paternity in s 5 of the Law Reform (Parent and Child) Scotland Act 1986 would be amended to create an equivalent presumption when a child is born within a civil partnership.

That latter aim always was rather misconceived. The 1986 Act creates a rebuttable presumption not of parenthood but of fatherhood: such a presumption would virtually automatically be rebutted by the very femaleness of those in whose favour it was hoped it would act. However in 2004 the government undertook to re-examine the issue, and it has now done so. The 1990 Act, it should be noted, is a reserved matter.

What is now proposed is that the 1990 Act be amended and that when a woman becomes pregnant as a result of infertility treatment provided by a licensed clinic, her female partner should be recognised as the child’s “second parent”, on the same terms as such a woman’s male partner would be recognised as the child’s father. A consequential amendment to the 1986 Act (not mentioned in the draft bill) would be required in Scotland.

It is of course no longer inconceivable that a child may have two parents of the same gender. This has been possible in England since same-sex couple adoption became possible a few days after the Civil Partnership Act 2004 came into force, and it will be possible in Scotland on the bringing into force of the Adoption and Children (Scotland) Act 2007. Parenthood, it should never be forgotten, is a legal and social construct, more than a matter of fact.

Cohabitants and financial provision

The Family Law (Scotland) Act 2006 provides for Scotland a set of rules allowing for financial readjustment at the end of a cohabitation, either on separation or death. The English Law Commission (Law Com no 307) has now made recommendations for England and Wales. These are very different from the scheme applying in Scotland, but Scottish solicitors may well be called upon to advise clients in cross-border situations and so will need to become familiar with the English rules, whatever they eventually are.

Under the 2006 Act, only those who satisfy the definition of “cohabitant” can access the new remedies and, I understand, some of the early disputes that have arisen have been on this point. The English recommendation is to be far more precise about which cohabitants are eligible. Eligibility may come in one of two forms: having a child together, or satisfying a “minimum duration requirement”. Such a requirement is not uncommon in countries that recognise cohabitation rights, but it was resisted in Scotland, and in my view rightly so. A minimum duration requires both a start and an end, and cohabitations are seldom clear cut at either end: in other words the scope for dispute about eligibility is doubled by such a rule.

The 2006 Act is silent on the effect of any agreement between the parties. The English proposals suggest that there be written into the legislation an “opt-out”, so that couples can disapply the statute and make their own financial arrangements. This has superficial attractions – the desire to respect the autonomy of couples who wish to determine for themselves the legal consequences of their personal relationships. But the proposal has at least one serious drawback. It is based on the assumption that two people have a single desire. They might not. Doubtless the opt-out will work only when both sign an agreement, but that is entirely innocuous only where we are convinced of the equal bargaining power of both parties. Whether the legislation will permit the courts to strike down opt-out agreements, and on what basis they might do so, are matters that remain to be seen.

The English Law Commission suggests creating much more distance between the principles for assessing claims applicable on divorce and on separation than exists in the Scottish Act. For separating cohabitants, they suggest that the claimant must show that he or she made “qualifying contributions” to the relationship. This may not, at the end of the day, be substantially different from the Scottish approach to cohabitation, but it is a significant departure from the much looser, fairness-based approach to the issue on divorce in England.

The 2006 Act gives no guidance to Scottish courts as to how to value claims on death. Claims on death of one of a cohabiting couple have been available in England since the Inheritance (Provision for Family and Dependants) Act 1975, and the jurisprudence built up may give some limited guidance to Scottish courts. There already exists a two year qualifying period of cohabitation, and the only recommendation of substance contained in the Law Commission’s report relating to mortis causa claims is to recognise the existence of children as an alternative qualification.

Intestate succession

The Scottish Law Commission has been as busy as its English sister. It has recently produced a discussion paper on reform of the law of intestate succession (Scot Law Com DP 136). This area of succession law, typically perceived as a matter of the law of property and its transmission, is, I have always thought, better seen as an aspect of family law. It is certainly family law developments, particularly the introduction of civil partnership and the creation of cohabitation rights on death, that have led to the Succession (Scotland) Act 1964 becoming ever more out of touch with the realities of family life. So the current proposals, recognising families in their modern form, are greatly to be welcomed.

I intend to comment on these important proposals in rather more detail, but in another place. However, it is as well to note here that there is no suggestion of moving away from the discretionary court-based award to cohabitants that was introduced in the 2006 Act. But important questions on the issue are raised by the SLC, including in particular whether legislation should give rather more guidance to the courts than the 2006 Act does, as to how to assess claims once competently made. One suggestion is to follow the English recommendations mentioned above, whereby it is based on “qualifying contributions”. Another important recommendation is that the claim by a surviving cohabitant should be extended to the testate as well as intestate estate of the deceased. This would be a significant extension of the claim created by the 2006 Act.

Watch this space

All of the above proposals are likely to generate heated debate and may well be substantially varied before being enacted. This column is unlikely to run out of issues to comment on for some years to come.

Kenneth McK Norrie is a Professor of Law in the University of Strathclyde