Improving Scottish Family law :5

Improving Scottish Family law

4. SLC Report on Family Law

4.1 Introduction

4.1.1. This chapter deals with the recommendations of the Scottish Law Commission, apart from most of those relating to children, in the 1992 Report on Family Law. Almost all the recommendations relating to children were implemented in the Children (Scotland) Act 1995. Of other matters relating to children in the 1992 Report, the question of corporal punishment will be addressed in a later consultation, while that of parental responsibility for unmarried fathers is discussed in Part 5 below.

4.1.2 As a number of legislative changes in UK and English law since 1992 have some bearing on what is recommended in certain chapters of the Family Law Report, we wish to know if any modifications to these recommendations are now desirable. In particular, the provisions of the Protection from Harassment Act 1997 and the Family Law Act 1996 may have changed people's thinking slightly about some of the SLC recommendations on amendments to the Matrimonial Homes (Family Protection)(Scotland) Act 1981 and on the law covering cohabitation.

4.1.3 This chapter therefore, instead of following the order of the SLC Report, begins with a consideration of these two areas, and goes on to consider the other recommendations - which in some part follow on from these proposals. For example, SLC Recommendation 42, to abolish marriage by cohabitation and repute, might seem rather draconian if it is considered in isolation from the further protection for cohabitants and ex-cohabitants proposed in recommendations 80 to 87. The full text of the SLC Recommendations discussed here (Recommendations 42 to 91) will be found in Annex A to this paper.

4.2 The Matrimonial Homes (Family Protection) (Scotland) Act 1981

Dealings with third parties

4.2.1 The SLC considered the workings of the Matrimonial Homes (Family Protection)(Scotland) Act 1981 and proposed a number of amendments. Firstly, on dealings with third parties, it proposed a number of minor improvements - principally to restrict the occupancy rights of the spouses of former owners; to clarify what is meant by "a proposed dealing" so that the court can be asked to dispense with a spouse's consent at an earlier stage of negotiations; to give the court power to order payments or impose conditions where it refuses a dispensation; to replace the need for sworn affidavits with written declarations subject to criminal sanctions for false statements; and to give more protection to non-entitled spouses in tenancies.

4.2.2 The policy here is to keep the basic structure of the 1981 Act but to remove as many sources of expense, inconvenience and irritation as possible. The recommendations (see No 55 in Annex A) are therefore a series of minor ones to the provisions on dealings in the 1981 Act. A possible concern that has been raised is in regard to the non-entitled spouse's rights in the event of the home being co-owned by the entitled spouse and a third party. However the Government think that there is nothing in the definition of a "matrimonial home" in section 22 of the Act that excludes from it a property which is owned in shares.

Prescription of occupancy rights

4.2.3 There is no limit of time under the present law on separated spouses to exercise their occupancy rights. As it would seem unjust for a spouse to return and claim such rights after many years separation, the SLC considered that these rights should terminate after 2 years separation if the non-entitled spouse has not occupied the home during that time. (Recommendation No 56)

4.2.4 In England and Wales, section 35 of the Family Law Act 1996 provides that a former spouse with no existing right to occupy may apply to the court for such a right. In deciding whether to make an order two of the things taken into consideration would be the length of time that has elapsed since the parties ceased to live together and the length of time that has elapsed since the marriage was dissolved or annulled (35(5)(e)&(f). Such an order is limited to 6 months but may be extended on one occasion for up to a further 6 months. The SLC propose extending the Act's protection from violence to divorced spouses and cohabitees (see 4.2.14 below); in England & Wales the 1996 Act goes further by extending occupancy rights to these classes.

Interdict

4.2.5 In addition to certain clarification of the availability of matrimonial interdicts (Recommendations 57 (a) & (b)), the SLC proposes (Recommendation 57(c)) that the scope of an interdict could be extended to cover, not only a matrimonial home, but also any home or other premises occupied by the applicant, the applicant's place of work, and the school attended by any child in the applicant's care.

4.2.6 For England & Wales, section 33(3)(g) of the Family Law Act 1996 provides that an occupation order can exclude the respondent from a defined area in which the dwelling house is included. Section 38(3)(d) applies this to cohabitants. Section 42 provides for the issue of non-molestation orders which may be limited in time but not place.

4.2.7 The Protection from Harassment Act 1997 allows for the civil or criminal court in Scotland to make a non-harassment order to prohibit any specific future harassment. Courts have wide powers so that the order can be tailored to the needs of each victim. Breach of a non-harassment order made either by a criminal or civil court is a criminal offence punishable by imprisonment for up to 5 years and/or an unlimited fine. An award for damages can also be made in the civil court, including damages for any anxiety caused by harassment or financial loss resulting from it. The Scottish Office Action Plan Preventing Violence Against Women suggests that these new remedies may be particularly helpful to women affected by the menace of stalking, peeping toms, nuisance phone calls and abusive letters. The Scottish Office will research the use of non-harassment orders made in the criminal and civil courts to assess whether the objectives of the legislation are being met. If they are being met, there may not be the same need to extend the scope of matrimonial interdicts as in Recommendation 57(c).

Question 4: Views are sought on whether, in the light of the Protection from Harassment Act 1997, there is a need to extend the scope of matrimonial interdicts as proposed by the SLC.

Powers of arrest

4.2.8 The SLC proposed (Recommendation 58) that it should be made clear that when the court hears an application for a power of arrest to be attached to an interdict, the onus is on the non-applicant spouse to show that a power of arrest is unnecessary. However it is also recommended (No 59) that where a power of arrest is attached to an interdict the police should continue to have a discretion as to whether or not to arrest where a breach is reasonably suspected.

4.2.9 For England and Wales, Section 47 of the Family Law Act 1996 now provides that a court can attach a power of arrest to an occupation order or a non-molestation order if "it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child ... unless satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such power of arrest." Section 47(6) of the 1996 Act also provides that if a power of arrest is attached to an order, a constable may arrest without warrant a person whom he has reasonable cause for suspecting to be in breach of any such provision.

4.2.10 Concern has been expressed that the way in which discretion is used varies between forces, and that this could lead to victims of domestic violence being endangered. The Lord Advocate's guidelines to the police, however, make clear "that the presumption should be that the offending spouse will be arrested in all but the most trivial cases. Therefore the discretion not to arrest should be used sparingly and only for good reasons, bearing in mind that the safety of the applicant spouse is the paramount consideration".

Question 5: Views are sought on whether the police should keep the present discretion over whether to exercise a power of arrest.

4.2.11 The SLC also considered whether a power of arrest attached to a matrimonial interdict should terminate on divorce, and recommend instead (no 60) that it should cease to have effect, whether or not there is a divorce, three years after the date when the power was granted, unless it has been recalled, or renewed within that time.

4.2.12 In England & Wales, the Family Law Act 1996 provides that where an applicant has estate or interest etc or has matrimonial home rights, an occupation order can be made for a specified period, until the occurrence of a specified event or until further order - section 33(10). A non-molestation order may be made for a specified period or until further order - section 42(7). A court may attach a power of arrest for a shorter period than the other provisions of the order - section 46(4). The period may also be extended on one or more occasions on an application to vary or discharge the relevant order - section 46(5)

4.2.13 The SLC Report on Reform of the Ground for Divorce discussed the possibility of an expiry time of 5 years but decided that it would not be appropriate to make any recommendations in the absence of consultation (Paragraphs 4.5 and 4.6). The Family Law Report suggests that 3 years is a more appropriate period.

Question 6: Views are sought on the proposal for a power of arrest to lapse after a period of 3 years, whether or not there is a divorce.

Extending the availability of interdicts with powers of arrest

4.2.14 The SLC recommends that the definition of a "matrimonial interdict" should be extended to cover a corresponding interdict for the protection of a former spouse (No 61). The Report also recommends in its discussion on cohabitation, that similar interdicts to which a power of arrest can be attached, should be available to cohabitants, whether or not they have occupancy rights, and without the need for any qualifying period of cohabitation. (No 84). It follows from these proposals that such interdicts (currently called "matrimonial interdicts") should be renamed or described in a way which does not suggest that they are confined to married persons.

Question 7: Do you agree that if interdicts with a power of arrest are necessary for the protection of family members, they should be available to divorced partners and present and former cohabitants, and should be renamed accordingly?

4.2.15 Where a person has been arrested but no criminal proceedings are to be taken, the procurator fiscal has to inform the applicant and establish whether civil proceedings are to be taken (subsection (4) of Section 17). If the sheriff is satisfied that they are, he may order a further period of detention up to 2 days (subsection (5)(b)(ii)). It is argued that the period is not long enough in practice to enable the applicant's decision to be obtained or to enable civil proceedings to come to court. The SLC therefore recommend that these provisions be repealed (No 62). This will not have any effect on the ability to take civil action.

4.2.16 There is no equivalent requirement in the Family Law Act 1996. Section 46(7) requires that in England & Wales a respondent be brought before the relevant judicial authority within 24 hours and that if the matter is not then disposed of, he may be remanded.

Question 8: Would there be any difficulties in practice if subsections (4) and (5)(b)(ii) of the 1981 Act were repealed?

Minor points

4.2.17 Recommendations 63, 64 and 65 are for clarification - see Annex A.

4.3 Cohabitation

4.3.1 The SLC Report says that consultation and public opinion surveys confirmed the view that there was a strong case for some limited reform of Scottish private law to enable certain legal difficulties faced by cohabiting couples to be overcome and to enable certain anomalies to be remedied. Such reform should not however, undermine marriage nor undermine the freedom of those who have deliberately opted out of marriage. It should be confined to the easing of certain legal difficulties and the remedying of certain situations which are widely perceived as being harsh and unfair. The Report therefore does not recommend that there should be any obligation of aliment between cohabitants.

Presumption of equal shares in household goods and housekeeping allowances

4.3.2 The SLC does however recommend that there should be a presumption of equal shares in household goods in general between cohabiting couples (see No 80 in Annex A for details). This recommendation would give cohabitants a modified right to a presumption of equal shares in household goods as applied to spouses in section 25 of the Family Law (Scotland) Act 1985. It does not apply to money, securities, cars, caravans or other road vehicles or to domestic animals. Recommendation 81 would include savings from housekeeping allowances, as in Section 26 of the 1985 Act.

Financial provision on termination of cohabitation

4.3.3 The SLC recommends that when cohabitants split up, a former cohabitant should be able to apply to a court, within one year after the end of the cohabitation, for a financial provision on the basis of the principle that fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of any child of the family (No 82).

4.3.4 This recommendation is designed to award fair compensation to a cohabitant who has contributed to the wealth of the other cohabitant during the period of cohabitation and is based on that for divorcees in section 9(1)(b) of the Family Law (Scotland) Act 1985. The court would have the power to award a capital sum (including a deferred capital sum and a capital sum payable by instalments) and to make an interim award.

Discretionary provision on death

4.3.5 When a cohabitant dies, his or her partner should not have automatic rights of intestate succession or fixed rights to a legal share of the deceased's estate but should be able to apply to a court for a discretionary provision out of the deceased's estate (No 83). To be entitled to apply, the cohabitant would have to have been living with the deceased immediately before the death as if husband or wife. The court would have to decide what, if any, financial provision should be made for the applicant out of the estate taking into account all the circumstances of the case, including:

the length of the cohabitation
whether there are children of the relationship
the size and nature of the estate
any other benefit to be received by the applicant following the death
any other rights or claims against the estate
any contribution by the applicant to the deceased's economic advantage
any economic disadvantage suffered by the applicant in the interest of the deceased or the children.

In England and Wales, section 2 of The Law Reform (Succession) Act 1995 amended the law so that a cohabitant can apply for provision without need to show dependency if, during the 2 year period ending immediately before the death of the deceased, the person was living in the same household as the deceased as his or her wife or husband.

Occupancy rights and protection from violence

4.3.6 Recommendation 84 on extending to cohabitants and renaming "matrimonial" interdicts is discussed above (4.2.14). Some protection for persons in those circumstances has now been provided by the Protection from Harassment Act 1997, under which any person may apply for a non-harassment order, the breach of which is a criminal offence. Is this enough, or are the SLC proposals, which include the possibility of attachment of a power of arrest to the interdict, still necessary?

Life Assurance

4.3.7 Recommendations 85 and 86 clarify the insurable interest a cohabitant has in the life of his or her partner. The aim is to place cohabiting couples in this respect on an equal footing with married couples.

Cohabitation contracts

4.3.8 Recommendation 87 is to clarify that there should be no special objection to a contract between cohabitants or prospective cohabitants relating to property or financial matters. The old view was that such contracts were immoral and therefore illegal. Implementing this recommendation would not give any special status to contracts between cohabitants.

Question 9: Views are sought on the recommendations concerning cohabitation.

4.4 Marriage by cohabitation with habit and repute.

4.4.1 Because of the additional protection proposed for cohabitants, the SLC suggest that there is no need for the courts to continue to have the power to regularise irregular marriages.

4.4.2 Abolition of marriage by cohabitation with habit and repute is recommended (No 42) because the law is uncertain and difficult to apply. It provides no protection for cohabitants who never pretend to marry each other and can place later marriages at risk. Protection for cohabitants would be better established by Recommendations 80 - 87. Irregular marriages established before abolition could still be recognised even if no declarator had been obtained by then.

Question 10: Views are sought on the proposal to abolish marriage by cohabitation with habit and repute.

4.5 Judicial Separation

4.5.1 Recommendation 66 is that Judicial Separation should be abolished, on the basis that divorce is as readily available as separation, in the same courts and on the same grounds. Divorce is a more effective remedy in relation to property and succession and those who do not wish to divorce can obtain all the remedies they need (aliment, housing etc.) without a judicial separation.

4.5.2 The Family Law Act 1996, however, retains for England & Wales the option of a separation order.

Question 11: Views are sought on whether judicial separation should be abolished.

4.6 Further proposals on marriage law

Nullity

(a) Prior subsisting marriage and nonage

4.6.1 Recommendations 43 and 44 are that it should continue to be a ground of nullity of marriage that either party is at the time of the marriage already married or under the age of 16.

(b) Parties of same sex

4.6.2 Recommendation 45 is that it should continue to be a ground of nullity of marriage that both parties are of the same sex.

4.6.3 English case law has also held that the concept of marriage required that one party had to be biologically male and the other biologically female. This view has been upheld by the European Court of Human Rights. No change was made by the Family Law Act 1996. The SLC Report makes no recommendation about transsexuals who wish to marry someone of the opposite social sex but not the opposite biological sex.

(c) Prohibited degrees of relationship

4.6.4 The main point of Recommendation 46 is to remove from the prohibited degrees of relationship, specified in the Marriage (Scotland) Act 1977, the remaining limited restrictions on marriage between a person and the parent of his or her former spouse. Accordingly, the distinction between marriage with a deceased spouse's widowed parent (which is permitted under the present law) and other marriages with a former spouse's parent (which are not permitted) should no longer be part of Scots law.

4.6.5 The removal of this restriction has not taken place in England but the Report states that there would be no practical difficulties or inconveniences in having different laws on this point. The present restrictions are felt to lead to anomalies and results which can not be justified by any reasonable argument.

(d) Non-compliance with formal requirements

4.6.6 The SLC considered whether failure to comply with legal preliminaries or formal requirements for a marriage should invalidate it. The Report notes that most marriages in Scotland are now immune from challenge on the ground of non-compliance with formal requirements. Recommendation 47(a) widens slightly provisions already in force and 47(b) seeks to eliminate invalidity by non-compliance with formalities which are not essential.

(e) Defects in consent

4.6.7 Recommendation 48 seeks mainly to clarify the present situation as to the invalidity of a marriage on the grounds of mental incapacity, error or duress. The only real change is to dispense with "tacit mental reservation" as a ground for nullity. The view is that it encourages sham marriages. Secret mental reservations have no effect in England and Wales.

(f) Voidable marriages: impotency and other grounds

4.6.8 In cases of marriage breakdown (for which impotency might be a cause) divorce is regarded as a more satisfactory and logically defensible civil remedy than either retrospective or prospective nullity for impotency. The SLC therefore recommends (No 49) that marriages should not be voidable on the ground of impotence and (No 50) that there should be no new grounds on which a marriage is voidable in Scots law. The result would be to eliminate the concept of voidable marriage.

Question 12: Views are sought on these recommendations on marriage law.

Declarators relating to marriage

(a) Declarators of marriage or nullity of marriage

4.6.9 Recommendation 51 is that actions for declarator of marriage or nullity of marriage should be competent not only in the Court of Session but also in the sheriff courts. This is proposed for all cases (about a dozen a year, reducing in future if 42 and 49 are accepted) except the very rare cases where an action is raised after the death of both parties.

4.6.10 The effect of Recommendation 53 would be to give the Sheriff Court and the Court of Session jurisdiction to entertain actions for declarator that a divorce, annulment or legal separation obtained in any action outwith Scotland is entitled to recognition in Scotland.

(b) Declarators of freedom and putting to silence

4.6.11 The SLC recommends (No 52) that such obsolete actions to stop someone asserting that he or she is married to the pursuer should be abolished. They are considered unnecessary in the light of the court's general powers to grant interdict. An equivalent function in England and Wales was abolished by the Family Law Act 1986.

Litigation between spouses

4.6.12 The court should no longer have the power to dismiss certain proceedings between spouses in delict (Recommendation 54). This provision is not known to have been used since 1962 and it is considered to be anomalous and unnecessary.

Bars to divorce

(a) Lenocinium

4.6.13 "Lenocinium" is a legal term referring to adultery which has been actively promoted or encouraged by the pursuer. Recommendation 67 is simply to replace the term with plain English.

(b) Collusion

4.6.14 Recommendation 68 is to replace collusion as a bar to divorce with a provision that the court should not grant a decree of divorce if satisfied that the pursuer has put forward a false case or the defender has withheld a good defence. This is covered in England by the Divorce Reform Act 1969. It does not actually change the position that a false case is a bar to divorce.

(c) Grave financial hardship

4.6.15 Recommendation 69 is to repeal a minor provision on financial provision on divorce of the Divorce (Scotland) Act 1976 which was made unnecessary by the Family Law (Scotland) Act 1985.

Choice of law rules

4.6.16 The Scottish and English Law Commissions looked at the rules governing the validity and dissolution of a marriage involving a foreign element in their 1985 joint discussion paper, "Private International Law: Choice of law rules in Marriage". The results of the consultation exercise were published in 1987 in their report by the same name. Recommendations in the 1985 discussion paper received almost unanimous support but the 1987 report did not recommend legislation. This was primarily because the existing choice of law rules, based partly in statute and partly under common law, were generally considered to be satisfactory. The SLC in their 1992 Report on Family Law reiterated the 1985 recommendations, subject to minor modifications, on choice of law on marriage for inclusion within legislation.

4.6.17 The SLC proposed, by Recommendation 70(a), that the question of whether a marriage is formally valid should be governed by the law of the place of celebration. This would be subject to the provisions of the Foreign Marriage Act 1892 as amended (which deals with marriages by British Consuls abroad etc). This recommendation maintains the existing law and was strongly supported in the responses to the 1985 discussion paper.

4.6.18 On the question of whether a marriage is essentially valid, because either party was under a legal incapacity to enter into it or did not give legally effective consent to it, Recommendation 70(b) proposes that it should be governed by the law of that party's domicile immediately before the marriage. This was also supported by all of those who responded to this issue in the 1985 discussion paper.

4.6.19 Recommendation 71 is that there should be exceptions to the general rule that capacity to marry is governed by the law of the domicile on the basis of certain grounds of essential validity already existing under Scottish domestic law. These exceptions are fundamental to the concept of marriage in Scots law. They cover circumstances which are objectionable as a matter of public policy (for example, parties to the marriage being within prohibited degrees of relationship, either party being already married, either party under 16 years, parties being of the same sex and where either party cannot give effective consent). The SLC did not think it appropriate that a marriage purportedly entered into in Scotland should be regarded as valid if one of these Scottish grounds of invalidity exists. This was supported by all who commented on it in response to the 1985 discussion paper.

4.6.20 Recommendation 72 proposes a change to the present law regarding parental consent which has been criticised. At present, parental consent to marriage, which is regarded as a matter of form, is governed by the law of the place of celebration rather than the domicile of the party to the marriage concerned. The 1985 discussion paper highlighted the criticisms levelled at the current law. It suggested that the simplest and most satisfactory solution would be to provide that a rule, whereby a person under a certain age is required to obtain the prior consent of a parent or guardian before he could marry, would be regarded as resulting in a legal incapacity to marry if, and only if, it precluded that person marrying anywhere in any form while under that age. This solution was agreed by all who commented on it in response to the 1985 discussion paper.

4.6.21 The SLC considered whether a Scottish court should be able to declare a marriage, which is initially valid, null on grounds not recognised as cause for nullity in Scots law. Recommendation 73 proposed that, by applying the foregoing choice of law rules, a marriage which was initially valid should not be annulled or declared null by a Scottish court on any ground. This parallels Recommendations 49 and 50, discussed in paragraph 4.2.8 above, which have the effect of abolishing the concept of voidable marriage in Scots law. The proposal was accepted by all but one of those who responded to the 1985 discussion paper. It would not, however, affect the rule, in terms of section 46 of the Family Law Act 1986, that Scotland would continue to recognise foreign nullity decrees where the foreign court had jurisdiction, even if the ground of annulment was not found in Scots law.

4.6.22 The SLC recommended in the 1985 discussion paper that the existing public policy exception to the normal choice of law rules should continue to apply. Accordingly, Recommendation 74 is that a foreign rule as to the validity or invalidity of a marriage (for example, incapacity based on religion or skin colour) should not be recognised or applied in Scotland where to do so would be contrary to public policy. Respondents to the 1985 discussion paper did not disagree with this.

4.6.23 Where a person has married in another country the law of that country may not recognise a divorce granted elsewhere and this may give rise to the question of whether that person is still married. It is already part of Scots law, by reason of section 50 of the Family Law Act 1986, that a divorce granted or recognised in Scotland prevails. Accordingly that person can remarry in Scotland or their remarriage in another country will be recognised in Scotland. This is a qualification to the rule that legal capacity to marry depends on the law of domicile which the SLC recommend (No 75) should be retained in a family law code.

Legal effects of marriage

4.6.24 The SLC considered the fact that marriage gives rise to different legal effects in different legal systems and questioned whether a new family law code should contain choice of law rules on these matters.

4.6.25 The SLC concluded that there is no need for special choice of law rules on capacity and obligations. The effect which marriage has on a person's capacity and obligations (other than the obligation of aliment) should be determined by the law governing that person's capacity and obligations generally (No 76). There is, however, a gap in the existing law in relation to the choice of law governing the obligation to aliment. The SLC, in the 1985 Discussion Paper, proposed adopting a simple provision which would be easily applied, namely that Scottish courts should apply Scots law when dealing with any claim for aliment. This would be subject to Part II of the Maintenance Orders (Reciprocal Enforcement) Act 1972 which contains special choice of law rules for obtaining and registering provisional maintenance orders. The proposal received unanimous support and is reiterated as Recommendation 91.

4.6.26 The SLC, however, considered it appropriate to adopt special rules for the legal effects of marriage on property. The existing Scottish rules draw a distinction between moveable and immovable property. For moveable property, the law of the spouse's domicile applies but this existing rule assumes that a wife will take her husband's domicile on marriage automatically. This is outdated and inconsistent with the principles of equality and independence which now apply to marriage. Thus the SLC recommended that the effect which marriage has on spouses' moveable property should be determined by the law of the spouses' common domicile and, where they do not have the same domicile, the marriage should not have automatic effect on their moveable property. The existing Scottish rule for immovable property is that it is governed by the law of the country where the property is situated. The SLC considered this rule to be satisfactory and recommended its retention (Recommendation 77). Both rules would be subject to any agreement to the contrary made by the spouses and that vested rights should not be affected by any change in domicile (Recommendation 78).

4.6.27 Recommendation 79 proposes that these rules on matrimonial property should be extended to cover also occupancy and related protective rights. Thus, questions as to whether a spouse has occupancy rights or other protective rights related to the occupation or use of the matrimonial home (be the home moveable or immovable property such as a caravan) or its contents should be governed by the law of the country where the property is situated.

Question 13: Views are sought on the recommendations concerning choice of law rules on marriage and its effects.

4.7 Illegitimacy

4.7.1 Virtually all the effects of the status of illegitimacy were removed from the law of Scotland by the Law Reform (Parent and Child)(Scotland) Act 1986. The SLC recommend (Recommendation 88) that it should be made clear that the status itself of illegitimacy is abolished. Any reference to a legitimate or illegitimate person in an existing document or enactment can be construed as a reference to a person whose parents were or were not married at the time of conception or subsequently. An unnecessary saving in the 1986 Act for coats of arms should also be repealed: this would not affect succession to titles of honour.

Question 14: Views are sought on the recommendation that the status of illegitimacy should be abolished.

Domicile of children

4.7.2 As a consequence of the proposal to abolish the status of illegitimacy in Scotland it is necessary to change the rules on children's domicile. At present this distinguishes between legitimate and illegitimate children leading to different results. The SLC recommended that a child's domicile be determined as the country with which the child for the time being is most closely connected with presumptions to identify that country. The country most closely connected would be presumed to be that where both parents are domiciled and the child has his home with either or both of them; or, where the parents are not domiciled in the same country, the country where the child has his home with one of them (Recommendation 89).

4.7.3 Recommendation 90 follows as a result of abolition of illegitimacy. Existing choice of law rules are uncertain and tend to give primacy to the father's domicile which is now outdated. A simple rule recommended by the SLC is that the child's own domicile at the relevant time be used as the connecting factor for determining the way in which his status is at that time affected by whether the child's parents are or have been married.

Question 15: Views are sought on the recommendations that change the rules on the domicile of children.

4.8 Summary of questions on family law reform