Laid before Parliament by the Lord Advocate under section 3(2) of the Law Commissions
Act 1965
Ordered by the House of Commons to be printed 6th May, 1992
EDINBURGH: HMSO
£19.45 net
Most of Parts II to VI of the report on Family Law were implemented in the Children (Scotland) Act 1995. They are not reproduced here.
PART I INTRODUCTION
1.1 Towards a Scottish code of child and family law
1.2 Background to Report
1.5 Scope of Report
PART II PARENTAL RESPONSIBILITIES AND RIGHTS
2.1 Parental responsibilities
2.14 Parental rights
2.36 Who should have parental responsibilities and rights?
2.52 Operation of parental responsibilities and rights
2.59 Position of those who have care or control of a child
2.60 Views of child
2.67 Corporal punishment
PART III GUARDIANSHIP OF CHILDREN
3.1 Introduction
3.2 Appointment of guardians
3.6 Revocation of appointment
3.8 When should appointment take effect?
3.13 Responsibilities and rights of guardian
3.16 Termination of guardianship
PART IV ADMINISTRATION OF CHILDREN'S PROPERTY
4.1 Introduction
4.3 Damages
4.9 Criminal Injuries Compensation
4.10 Inherited property
4.18 Court's powers
4.19 Powers of parent or guardian
4.22 Obligation to account
4.23 Standard of care
PART V COURT ORDERS RELATING TO PARENTAL RESPONSIBILITIES AND RIGHTS
ETC
5.1 Introduction
5.2 What orders can be applied for?
5.7 Who can apply?
5.12 In what proceedings can applications be made?
5.16 Avoidance of unnecessary orders
5.19 Criterion to be applied
5.20 A statutory checklist of factors
5.24 The child's views
5.30 Duty to consider arrangements for children
5.37 Effect of orders
5.42 Avoidance of delay
5.43 Care and supervision orders
PART VI PRIVATE INTERNATIONAL LAW RELATING TO PARENTAL RESPONSIBILITIES
AND RIGHTS ETC
6.1 Introduction
6.2 Parental responsibilities and rights
6.4 Guardianship
6.7 Administration of children's property
PART VII MARRIAGE BY COHABITATION WITH HABIT AND REPUTE
7.1 Introduction
7.2 Present law
7.3 Problems in present law
7.4 Assessment of present law
7.8 Results of consultation
7.9 Recommendation
PART VIII NULLITY OF MARRIAGE
8.1 Introduction
8.3 Prior subsisting marriage
8.4 Nonage
8.5 Parties of same sex
8.6 Prohibited degrees of relationship
8.14 Non-compliance with formal requirements
8.16 Defects in consent
8.21 Voidable marriages: impotency
8.30 Voidable marriages - other possible grounds
8.32 Consequential changes to Marriage (Scotland)
Act 1977
8.33 Capacity for polygamy
8.34 Invalidity under earlier laws
PART IX DECLARATORS RELATING TO MARRIAGE
9.1 Declarators of marriage or nullity of marriage
9.3 Declarators of freedom and putting to silence
9.6 Other declarators relating to marriage
PART X LITIGATION BETWEEN SPOUSES
10.1 Introduction
10.2 Present law
10.3 Background to present law
10.6 Assessment of present law
10.7 Results of consultation
10.8 Recommendation
PART XI THE MATRIMONIAL HOMES (FAMILY PROTECTION) (SCOTLAND)
ACT 1981
11.1 Introduction
11.3 Dealings with third parties
11.3 Introduction
11.5 Existing law
11.9 Results of consultation
11.10 Spouses of former owners
11.13 Proposed dealings
11.15 Court's powers on refusing to dispense with
consent
11.16 Affidavits
11.19 Dealings with tenancies
11.22 Other minor amendments in relation to dealings
11.23 Recommendations on dealings
11.24 Prescription of occupancy rights
11.29 Exclusion orders
11.30 Interdicts
11.34 Powers of arrest
11.46 Definition of matrimonial home
11.49 Other points on 1981 Act
PART XII JUDICIAL SEPARATION
12.1 Introduction
12.4 The present position
12.8 Assessment
12.19 Recommendation
PART XIII BARS TO DIVORCE
13.1 Introduction
13.2 Lenocinium
13.5 Collusion
13.9 Grave financial hardship
PART XIV CHOICE OF LAW RULES ON VALIDITY AND DISSOLUTION
OF MARRIAGE
14.1 Introduction
14.4 Proposed basic rules
14.4 Formal validity
14.5 Essential validity
14.6 Marriages in Scotland
14.8 Proposed ancillary rules
14.8 Parental consent
14.11 Effect of divorce
14.12 Public policy
14.13 Annulment of voidable marriages on grounds
unknown to Scots law
14.14 Matters omitted from proposed rules
14.14 The Sottomayor v De Barros rule
14.15 A general exception to the rule that formal
validity depends on the law of the place of celebration
14.20 A rule on prospective validation
14.21 Choice of law in divorce
14.22 Summary of recommendations
PART XV CHOICE OF LAW RULES ON LEGAL EFFECTS OF MARRIAGE
15.1 Introduction
15.2 Capacity
15.3 Obligations
15.4 Property
15.9 Recommendations
PART XVI COHABITATION
16.1 Introduction
16.5 Aliment
16.7 Household goods
16.12 Savings from housekeeping allowance
16.14 Financial adjustment on termination of cohabitation
16.24 Discretionary provision on death
16.38 Occupancy rights and protection from violence
16.41 Life assurance
16.46 Cohabitation contracts
16.47 Opting out
PART XVII ILLEGITIMACY
17.1 Introduction
17.2 The 1986 reform
17.4 Completing the task
17.11 Coats of Arms
17.12 Domicile of children
17.14 Choice of law rules
PART XVIII ALIMENT: CHOICE OF LAW RULES
18.1 Introduction
18.2 Present law
18.4 The Hague Convention
18.5 Recommendation
PART XIX THE LEGISLATION REQUIRED
19.1 The draft Bill
19.2 Other developments
19.3 The need for a coherent approach
19.4 Outline of a Scottish code of child and family
law
PART XX SUMMARY OF RECOMMENDATIONS
APPENDIX A
Draft Family Law (Scotland) Bill
APPENDIX B
List of those who submitted written comments on
any or all of the propositions or questions put forward for consideration in
Discussion Papers Nos 85, 86 and 88.
The Scottish Law Commission was set up by section 2 of the Law Commissions
Act 1965 for the purposes of promoting the reform of the law of Scotland. The
Commissioners are:
The Honourable Lord Davidson, Chairman,
Dr E M Clive, Professor P N Love, CBE,
Sheriff 1 D Macphail, QC,
Mr W A Nimmo Smith, QC.
The Secretary of the Commission is Mr K F Barclay. Its offices are at 140 Causewayside,
Edinburgh EH9 1PR.
ISBN 0 10 200493 5
Scottish Law Commission
Item 14 of our Second Programme of Law Reform
Family Law
To: The Right Honourable the Lord Fraser of Carmyllie, QC,
Her Majesty's Advocate
We have the honour to submit our Report on Family Law.
(Signed)
C K DAVIDSON, Chairman
E M CLIVE
PHILIP N LOVE
IAIN MACP11AIL
W A NIMMO SMITH
KENNETH F BARCLAY, Secretary
27 January 1992
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