This item was published during the term of a previous administration that ended in April 2007
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Modern laws for modern families
20/01/2000
Justice Minister Jim Wallace today revealed plans for the most radical shake-up of Scottish family law in a generation. The reforms will promote the welfare of modern families and focus greater attention on the needs of children.
In a statement to the Scottish Parliament, Jim Wallace announced that he would publish a Family Law White Paper in May in which the key proposals would include:
- Reducing the periods of separation for divorce in order to lessen the acrimony between parents that can have a damaging impact on children.
- Making it easier for unmarried fathers to have rights and responsibilities from the moment their child is born.
- Allowing step-parents to obtain parental responsibilities and rights by registering an agreement with both natural parents.
- Establishing a statutory grant scheme to fund family support organisations.
- Measures to strengthen the legal protection available to victims of domestic abuse regardless of their marital status.
Jim Wallace said:
"I am able to announce today how the Executive intends to take forward the matters contained in the consultation paper Improving Scottish Family Law published last March. Our starting point is one of support
for the family. Families today take diverse forms. However, we believe that the family provides the best setting for the care and upbringing of children
"We support marriage as the most recognisable and widely accepted way of signalling to society a couple's commitment to each other and to their life together as parents. However, we must also take account of the fact that many couples choose not to marry but to live together in stable relationships in which they bring up children. Any changes in family law must take account of this.
Divorce
"We also recognise the reality that families do break up, whether the parents are married or not. It is not the role of the Executive or of this Parliament to be judgmental about marital breakdown but to adopt the policies and legislation that minimise the damage to families and, in particular, children.
"Where marriages break down, we must make sure that the divorce process is handled with as much dignity and as little pain as possible. There is considerable evidence that acrimony between parents is damaging to children.
"We agree with the Scottish Law Commission that the existing periods of separation are too long, and may lead to more acrimonious routes to divorce being taken. So did most responses to our consultation. We therefore propose to shorten the period to establish breakdown of marriage from two years to one year if both parties consent; and from five to two years without consent.
"At this time we do not propose any change to the fault grounds (adultery, desertion and behaviour). However, consultees were divided on the value of such grounds, and we do not rule out further change, such as the replacement of the three grounds with a single "unreasonable behaviour" ground.
Unmarried Fathers
"Almost forty per cent of children are now born to unmarried parents. Many unmarried fathers do not realise that they have no parental responsibilities and rights in relation to their children. There is at present a procedure for an unmarried father to obtain parental rights and responsibilities but it is not well understood and is little used. We believe that change is needed to enable unmarried fathers to obtain parental rights and responsibilities more easily from the birth of the child.
"We think that the best way forward is, that from the commencement of the new legislation, parental responsibilities and rights should be conferred automatically on all fathers who have registered the birth of the child jointly with the mother.
Step-parents
"We will also bring forward measures to enable step-parents to obtain parental responsibilities and rights by registering an agreement with both the natural parents. Many step-parents form close ties with their new family. At present, they have to go to court to prove that it is in the children's best interest that they should have parental responsibilities and rights.
Funding for Family Support Organisations
"Any changes we make in family law must be designed to ease the transitions that some families undergo as a result of breakdown, and in particular minimise the damaging effects on children.
"An important role is played by organisations like Couple Counselling Scotland, Family Mediation Scotland and Stepfamily Scotland in providing services to families in transition. We propose to set up a new statutory grant scheme to support these organisations and others like them. As a first step, the administration of the existing section 10 grants to these organisations will pass to the Justice Department from April.
"For the avoidance of doubt, I should also add that we have no proposals to make mediation compulsory for those undergoing divorce. The present arrangements whereby mediation may be undertaken voluntarily and the court may refer a couple for mediation at any time in the divorce process under a rule of court, will remain in place.
Domestic Abuse
"We will also introduce new measures to strengthen the legal protection available to victims of domestic abuse. Matrimonial interdicts will be extended to former spouses and cohabitants, and we propose that they be renamed " domestic interdicts". They will be extended to last for up to 3 years and will not fall when a divorce is granted. Also, they will be able to cover more than just the immediate home, so that vulnerable people are protected at their work or at their children's schools.
"Members have, rightly, been very concerned that people who have been threatened by, or consider themselves under threat from, their spouse or cohabitee should get the protection they need and deserve. Our proposals will improve protection to members of families disrupted by abuse.
Other Reforms
There will be many other improvements of a technical nature to various aspects of family law.
"The Scottish Law Commission recommended the abolition of the old Scottish law of marriage by cohabitation and repute - common law marriage. However, the responses to consultation have persuaded us that it has its uses, and we should retain it, and also judicial separation.
"We propose, however, to end of the status of illegitimacy in Scotland. The children of unmarried parents have long had equal rights in almost all respects, and it is right and proper that the status of illegitimacy should now be removed from the statute book."
News Release: SE0100/2000
20 Jan 2000
News Release: SE0100/2000
20 Jan