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FAMILY MATTERS: IMPROVING FAMILY LAW IN SCOTLAND

ANNEX A

TECHNICAL AMENDMENTS TO FAMILY LAW

Technical Amendments

We have already committed in previous papers to make certain technical amendments to family law. Many of these are recommendations from the Scottish Law Commission that we accept are necessary to modernise family law and to put into statutory form rules that rely currently on the common law.

Children

These changes will remove the few remaining legal discriminations against people on the grounds of the marital status of their parents.

We plan to:

• abolish the status of illegitimacy and the concept of legitimation by subsequent marriage. We will preserve the effect of the Legitimation (Scotland) Act 1968 on succession to hereditary titles.

• remove any reference in existing legislation to declarators of legitimacy, legitimation and illegitimacy. We will provide for extant enactments and deeds that refer to a legitimate or illegitimate person.

• amend the law that determines a child’s domicile so that it will be the country with which the child is most closely connected. This will be presumed (unless it is shown otherwise) to be to be the country where both parents are domiciled and the child has a home with either or both of them, or, where the parents are not domiciled in the same country, the country where the child has a home with one of them.

Marriage

Several of the key rules in marriage law rely currently on the common law. We plan to put these into statutory form. Other changes that we will make involve private international law rules on the effects of marriage, litigation between spouses, marriage by cohabitation and repute, and rules of court.

Nullity of Marriage

We plan to:

• put into statutory form the rule that a marriage is void if either party to it is at the time of the marriage already married.

• remove the remaining restrictions on marriage between a person and the parent of his or her former spouse.

• widen the existing provisions for non-compliance with formal requirements to marriage to include non-compliance under earlier laws.⁷

• make it clear that only the more important formal requirements of marriage will result in nullity.

• set out in statute the common law rules for nullity on grounds of defect of consent. These are mental incapacity, error or duress.

Declarators Relating to Marriage

We plan to:

• make declarators of marriage and declarators of nullity of marriage competent in the Sheriff Court.⁸

• apply the rules on jurisdiction that apply currently to actions for declarator of marriage to actions for declarators that a divorce, annulment or legal separation is or is not entitled to recognition in Scotland.

• abolish declarators of freedom and putting to silence as a remedy against someone who falsely asserts that he or she is married to the person bringing the action.⁹

Litigation Between Spouses

We plan to remove from the courts the power to dismiss actions between spouses in respect of wrongful or negligent acts or omissions, if it appeared that no substantial benefit would accrue to either party.

Choice of Law Rules on validity and dissolution of marriage

We plan to legislate so that:

• the question of whether a marriage is formally valid is governed by the place of celebration.¹⁰
• the question of whether a marriage is essentially invalid because either party was under a legal incapacity to enter into it, or did not give a legally effective consent to it, is governed by the law of that party’s domicile immediately before the marriage, subject to certain exceptions essential to the validity of a marriage under Scots law.¹¹

• any foreign rule that requires a person under a certain age to obtain the prior consent of a parent or guardian before he or she can marry should result in a legal incapacity for marriage only if it precludes a marriage by that person anywhere in any form while he or she is under that age.

• when applying the above rules, if a marriage is initially valid, any decision to annul by a Scottish court will depend on Scots law. Foreign decrees of nullity will continue to be recognised if the court had jurisdiction.

• a foreign rule as to the validity or invalidity of a marriage will not be recognised or applied in Scotland where to do so would be contrary to Scottish public policy.

Choice of Law and Private International Law Rules on the legal effects of marriage

We plan to provide in legislation that:

• Scottish courts should apply Scots law when dealing with any claim for aliment.
• the law of the spouses’ common domicile will determine the effect that marriage has on their moveable property. Where they do not have the same domicile, the marriage will not have automatic effect on their moveable property.¹²
• the above rules on matrimonial property will extend to cover occupancy and related protective rights.

Marriage by Cohabitation and Repute

We will retain marriage by cohabitation and repute. However, we will restrict the powers of the court to back date the time when such a marriage came into existence so that a marriage by cohabitation and repute cannot impugn the validity of an otherwise valid Scottish marriage.

Rules of Court

We plan to legislate so that a Sheriff can direct a Sheriff Clerk to execute deeds that relate to moveable as well as to heritable property.

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