The Scottish Government

« Previous | Contents | Next »

Listen

IMPROVING FAMILY LAW IN SCOTLAND: ANALYSIS OF WRITTEN CONSULTATION RESPONSES

CHAPTER FOUR VIEWS ON THE FIRM PROPOSALS FOR THE FAMILY LAW BILL

The consultation stated:

On the basis of previous consultations, there are a number of firm proposals which the Executive plans to include in a future Family Law Bill. The major provisions are:

• conferring parental responsibilities and rights on unmarried fathers who jointly register the birth of their child with the mother following commencement of new legislation; and
• reducing the periods of non-cohabitation required to constitute grounds for divorce from 2 years to 1 year with consent and 5 years to 2 years without consent.

Other firm proposals for the Bill are updating domestic abuse provisions, and some minor technical amendments to existing family law.

Are there any views you want to record in relation to these firm proposals?

Despite these provisions being presented as "firm proposals", they attracted amongst the largest volume of response out of all of the topics highlighted in the consultation. Overall, 95 respondents (31%) commented on the proposal to confer parental responsibilities and rights (PRRs) on unmarried fathers who jointly register the birth of their child; 190 respondents (62%) chose to comment on the plans to reduce periods of non-cohabitation required to constitute grounds for divorce; and 21 (7%) responded on the proposals for updating domestic abuse provisions and/or the other minor technical amendments.

Most of those who commented provided an indication of whether they agreed with or were opposed to the proposed changes. Their views have been categorised broadly in Table 2 below.

Table 2: Views on firm proposals by broad category of respondent

NB. Percentages may not total 100% exactly due to rounding

As shown above, the vast majority of those who provided an indication of their stance supported the introduction of PRRs for unmarried fathers who jointly registered the birth of their child and agreed with the firm proposals regarding the technical amendments. However, there was more of a divergence in views in relation to the proposed reduction in time periods of non-cohabitation prior to divorce, with 90% of individuals who responded indicating their opposition to this proposal compared with a clear majority in support (73%) amongst the organisation responses.

It should be noted here and in the remainder of this chapter that the consultation made clear that these proposals were "firm" and encouraged respondents to focus their response on the remaining provisions proposed. It is not known how many of those who chose not to comment on these firm proposals supported or opposed them.

4.1 CONFERRING PARENTAL RESPONSIBILITIES AND RIGHTS ON UNMARRIED FATHERS WHO JOINTLY REGISTER THE BIRTH OF THEIR CHILD WITH THE MOTHER FOLLOWING COMMENCEMENT OF NEW LEGISLATION

In total, 95 respondents commented on this firm proposal with 75% expressing support, 15% opposing it and 10% providing commentary with no firm view indicated.

Reasons for Supporting the Proposal

Many reasons were provided in support of conferring PRRs on unmarried fathers who jointly register the birth of their child. These comprised:

• Promotes involvement of father in upbringing of child

(Faith 93, Faith 114, Legal186, LG 254)

• Enhances and substantiates the parental status and role of father

(FM 88, Couns 100, Char 127)

• Addresses perceived current unfair discrimination against fathers

(Indiv 20, FM 194, Char 213, Misc 326)

• May reduce stress on parents/child at later time

(Couns 39, Couns 216, Couns 259)

• Contributes to stability for child

(Couns 100, Char 184, LG 324)

In addition, respondents considered that conferring PRRs on unmarried fathers helped to achieve the rights of the child as set out in relevant Articles in the United Nations Convention on Rights of the Child (Legal 208, Misc 260); complied with the European Community Human Rights provisions for fathers (Legal 325); aided in practical terms regarding permanency planning by local authorities (LG 50); contributed to greater clarity in identification of "relevant persons" in the case of Children's Hearings (LG 50, Legal 325); helped redress the balance of rights for some fathers who currently met their responsibilities as set out by the Child Support Agency (Char 213); and provided a back up in the event of a mother's illness or death (LG 324).

Reasons for Opposing the Proposal

Most of the rationale provided in opposition to the proposal was submitted by individual respondents rather than organisations. A few respondents argued that unmarried fathers should be entitled to PRRs even without registering their child's birth (Indiv 40, Indiv 60, Indiv 311). Other views were that fathers should have to marry the birth mother to be entitled to such PRRs (Indiv 68); that such a proposal would not address the issue of mothers denying contact between the child and the father (Indiv 45); that the provision would undermine "the family" unit (Indiv 134); and that fathers may take advantage of their new rights whilst shirking the accompanying responsibilities (Misc 164).

Two respondents expressed concern that such a proposal might lead to complications in the future:

"…. massive spanner in the works for all involved and opening up a huge can of worms" (Indiv 14)

" easy to envisage individuals operating promiscuously outside marriage with a string of parental rights and responsibilities to children scattered here and there none of which the individual is in a position to either exercise or fulfil" (Faith 163)

Requirement for Father to be Present at Registration

A few respondents raised as a problem the necessity for fathers to always be present at the time of registration. Situations were envisaged where fathers may be away from home, for example in the armed forces or navy and not available for registration (Indiv 18, Char 127, Char 213, Indiv 333).

Retrospective Rights?

A divergence in views emerged in relation to the plan to confer PRRs following commencement of the new legislation and not award such PRRs retrospectively. Of the 20 respondents who commented the majority (13) supported the proposal.

A few respondents argued that PRRS could not be awarded retrospectively as the law should be clear and precise (Legal 186, Legal 208) and should avoid creating abrupt changes to a child's legal status (Misc 260). Two respondents, whilst supporting the proposal, emphasised the importance of publicising the existence of PRRs in order that existing unmarried fathers could be made aware of them and take appropriate action to attain such PRRs if they so wished (FM 194, Char 213).

Amongst the 7 responses indicating a wish to see such PRRs awarded retrospectively, one respondent considered that the current plan breached human rights (Indiv 5), with another remarking that lack of retrospective provision would leave a " huge void in the lives of children and parents who are affected by this problem" (Indiv 31).

Publicising the Change to Provisions

A recurring theme was what respondents saw as the need to make people aware of the change in provisions relating to PRRs for unmarried fathers. Publicity was considered necessary on a regular basis (FM 82) with wide dissemination (FM 82, Misc 267). Respondents stipulated that the information should be comprehensive (Univ 122, Char 127), with one suggestion that parents be given an information booklet at the time of registration of the birth (Legal 186).

Emerging Issues

Many respondents had given some thought to the implications associated with the operation of the new provision. The most commonly raised issue related to concern over ensuring that women and children were protected from inappropriate contact with abusive fathers holding PRRs. Suggested ways to address this included enabling mothers to object to the conferring of PRRs on the father of their child in some instances (319 Char), and establishing a robust mechanism for review of PRRs, for example, in the case of abuse or where relationships break down (Faith 163, Misc 220, Misc 267).

Another situation in which automatic PRRs may not always be appropriate was suggested as being in the event of a birth resulting from non-consensual sex (Indiv 27, Misc 267).

One remark was that perhaps an initial outcome of the provision may be a reduction in the number of joint registrations of birth (Indiv 110). Another prediction was that there may be an initial increase in advice and assistance costs from Scottish Legal Aid, although this was likely to diminish over time (Legal 121).

Further concerns raised were that there appeared to have been no consideration given as to how to ensure that absent parents fulfilled their new responsibilities (Char 321); that mothers were still in a position to withhold the father's name from the registration document (Misc 267); and that a new system should be introduced to enable the police to have details of PRRs to inform their actions relating to cases of disputes (Legal 158).

One comment was that the provision would promote consistency with the Antisocial Behaviour Scotland Act 2004 in holding parents to account over their children's behaviour (Char 127). Another point raised was that the provision may require consequential amendments to the Adoption legislation as this related to rights of unmarried fathers (Legal 316).

Finally, it was emphasised that in establishing new mechanisms to confer PRRs on unmarried fathers, it will be important not to create a further tier of inequality for lesbian and gay co-parents (Char 258).

4.2 REDUCING THE PERIODS OF NON-COHABITATION REQUIRED TO CONSTITUTE GROUNDS FOR DIVORCE FROM 2 YEARS TO 1 YEAR WITH CONSENT AND 5 YEARS TO 2 YEARS WITHOUT CONSENT

As stated earlier, 62% of all respondents commented on this firm proposal, of the individuals who responded 90% were opposed to the plan, in contrast to the majority support (73%) for the proposal amongst the responses from other organisations.

Despite such contrasting opinions between individual and organisation responses, common ground did emerge. For example, a great many respondents, representing a range of respondent categories expressed their deep concern for children caught up in their parents' divorces and the negative after effects on children which the respondents considered could result. Again, despite having different opinions on the time period proposed, many respondents highlighted the regrettable nature of divorce and its potential repercussions.

Many respondents referred to the proposed reduced time periods as constituting "fast tracking" divorce, which was either viewed favourably or negatively depending on the overall stance of the respondent.

Opposition to Reducing Periods of Non-Cohabitation Required

Three main reasons to oppose this firm proposal emerged repeatedly. These were that the reduced time periods could:

• result in increasing the number of divorces in Scotland
• limit the time available for couples to rethink and seek reconciliation
• belittle the seriousness of marriage, weakening it and undermining its stability

A myriad of other reasons were given by small numbers of respondents in opposition to the proposals. These comprised:

• Proposals are out of step with the underlying principles of the consultation with respect to making the child's interests a central priority
• Unfair to spouse who may wish to save the marriage and/or is the innocent party

For example, it was considered that this could enable a dominant financial partner to rid themselves of any financial obligations to their wife/husband quicker than might otherwise have been the case (Legal 333)

• Proposals may ease the path for one spouse over the other and for "serial adulterers"
• Will encourage marriage to be entered into without due consideration

" people will go into marriage in an almost light-hearted way knowing that it can all be disentangled after a very short time" (Indiv 66)

" marriage without due consideration as exit will be so easy" (Indiv 70)

• People will be able to escape from any obligation to try to make their marriage work

" will breed a culture of walking away from problems rather than addressing them" (Indiv 226)

• The Government should be trying to encourage marriage not divorce
• Against Christian principles

" marriage is an ordinance of God not something that man evolved for his own convenience" (Indiv 225)

" marriage was not invented by the Government or by the nation but by God, so we should not be trying to make it easier to divorce" (Indiv 238)

• Likely to lead to more litigation because less time to sort out financial affairs
• Just a fashion fad

" Quickie divorce is a fashionable fad…..Government should seek to be trend-setter not a fashion victim" (Indiv 204)

• Will result with civil divorces preceding religious divorces for Muslims and Jews
• May serve to increase the number of marriages arranged simply for convenience

Support for Reducing Periods of Non-Cohabitation Required

Supporters of this firm proposal provided much less rationale than those opposing it. Where rationale was presented this focused around:

• Lessening of acrimonious divorces

" allows the separation to focus on future needs, not conflict" (Char 184)

• Likely reduction in numbers of "fault" divorce applications to the court
• Lessens the financial burden on divorcing couples

e.g. by avoiding some of the problems encountered by some parties relating to financial provision where there has been post-separation change in the value of assets (Legal 313)

• Provides a "cleaner break" and helps parties to "move on"

" once a decision is made to end a relationship, waiting rarely changes it. A clean break rather than a difficult period with legal barriers still in place would be less stressful" (Couns 216)

4.3 OTHER FIRM PROPOSALS: UPDATING THE LAW ON MATRIMONIAL INTERDICTS AND EXCLUSION ORDERS AND OTHER TECHNICAL AMENDMENTS

These firm proposals attracted relatively little response. Most of those who responded simply indicated their support for what was proposed. A few supplemented their response with commentary. Key points are summarised below.

A recurring theme was that the proposals should also take account of same-sex sexual partnerships (Indiv 2, Misc 164, Legal 208, Misc 220, Char 321). Another comment expressed by a few respondents was that the power of arrest attached to a matrimonial interdict should perhaps not lapse automatically after 3 years but may require extending in some cases (Legal 316). It was suggested that such powers be reviewed after 3 years and extended after this time where necessary (Faith 163, Misc 220). A few respondents requested that the scope of matrimonial interdicts should be extended further than proposed (Faith 163), to cover " any other specified place" (Misc 220), or all educational establishments and anywhere a child is likely to be (Misc 267).

An opposing view was that the plan to repeal parts of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 should not proceed, as the current situation where an arrested person can be detained for a further 2 days provides abused women and children a " period free from harassment and abuse in the pursuit of the civil action. Moreover, the provision is extremely useful in terms of locating the abuser for service of the writ" (Misc 267). One respondent agreed that although it may not be used very frequently " it is an important safeguard, for example, which can allow a breathing space for an abused family" (Misc 220).

Two respondents expressed concern that measures to protect victims would soon span several different pieces of legislation and that this could cause confusion (Misc 220, Legal 316).

« Previous | Contents | Next »