Introduction
15. 1 Marriage has different legal effects, in different legal systems, on capacity, obligations, property and occupancy rights. The question which we consider in this part of the report is whether a new family law code should contain choice of law rules on these matters and, if so, what these should be. Although there has been no joint work by the two Law Commissions in this area we have kept the English Law Commission fully informed of our proposals, which involve minimal alterations to the existing law and should give rise to no cross-border difficulties.
Capacity
15.2 We do not think that there is any need for a special rule on incapacity arising from marriage. There may well be a need to consider the choice of law rules on capacity generally, because they are not entirely clear or satisfactory, 1 but that is another matter.
Obligations
15.3 The same applies, in our view; to obligations. Any reform should be general. There appears to be no need for any special rule for obligations arising out of marriage, with the exception of the obligation of aliment which we consider separately later. 2
15.4 There are very important differences between legal systems in relation to matrimonial property. Although in practice choice of law problems involving matrimonial property appear to arise very rarely in Scotland, there is no doubt that they could arise in any case where spouses domiciled in one country own property situated in another. 3
15.5 The existing Scottish rules (which are the same as the rules applying elsewhere in the United Kingdom) draw a distinction between moveable and immovable property. In general the law of the spouses' domicile governs their moveable property (with the result that if they are domiciled in Scotland each owns his or her own property) and the law of the country where the property is situated governs immovable property. 4 This is subject to any agreement between the spouses to the contrary. 5 It is also probably subject to a proviso that vested rights are not affected by a change in domicile. 6 The existing rules date from a period when a wife took her husband's domicile automatically. There is no authority on the position (rare in practice) where the spouses have different domiciles. Most of the cases and textbooks still express the rules primarily in terms of the husband's domicile 7 but this seems inconsistent with the principles of equality and independence which now apply to the legal effects of marriage. 8 If uncertainty and fruitless speculation are to be avoided a legislative solution seems desirable.
15.6 In the present context we do not think that there is any need to call into question the rules relating to immovable property, vested rights or marriage contracts. The difficulty arises in relation to moveable where there is no choice of regime by the parties. Where the spouses have the same domicile, which is the situation in most cases, then there is no reason why the law of that domicile should not apply. Where they have different domiciles it is at first sight tempting to say that, for each party, the effect which marriage has on his or her property should be determined by the law of his or her domicile. This, however, could mean that if a husband was domiciled in a country which gave each spouse an undivided one-half share in the other's property and the wife was domiciled in a separate property country, the husband would lose half of his property but would not acquire any share in the wife's property in return. This would be an unfair and unacceptable result. The simplest and most satisfactory solution, we suggest, is to say that if the parties are domiciled in different countries then marriage will have no automatic effect on their moveable property. 9 This will leave it open to them to opt into a community property regime if they so wish. It will be a very rare situation indeed where spouses remain domiciled in different countries throughout their marriage and, as separate domiciles imply an absence of a common life plan, it seems appropriate to provide that marriage has no automatic effect on the spouses' moveable property. Alternative solutions, such as the law of the common habitual residence, or the law of the last common domicile, or the law of one spouse's domicile, are all likely to produce arbitrary results and impose on the parties a matrimonial regime with which they have, as a couple, no strong connection. The common habitual residence, for example, may be only temporary, for employment purposes. The last common domicile may have ceased to exist twenty or thirty years previously. To impose the law of one party's domicile on the other seems unjustifiable. Moreover solutions based on nationality would not be suitable as they would not solve problems where, for example, the parties were both British citizens but the question was whether Scots law or English law should apply.
15.7 It follows from the fact that the effect of marriage in relation to immovable property depends, 10 and would continue under our proposals to depend, on the law of the country where the property is situated that the question whether a spouse has occupancy rights in a house by virtue of marriage will depend on the law of the country where in the house is situated. This is consistent with the provisions of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, many of which would be inappropriate or ineffective in relation to houses outside Scotland. However, the rule relating to the effects of marriage on immovable property does not go far enough in relation to occupancy rights and related protective rules. First, some matrimonial homes are moveable property (caravans and houseboats) but the law of the country where they are situated would still seem to be the appropriate governing law. Secondly, the protective rules connected with occupancy rights may apply, as they do in Scotland, to the contents of a matrimonial home and to outgoings related to it but, as these rules are ancillary to the rules on occupation of the home, it would seem to be appropriate that they should be governed by the same law. Thirdly, cohabitants may have occupancy rights and again the same rules ought to apply. We suggest therefore that there ought to be a special rule, applying the law of the country where the home is situated, for protective rights related to the occupation or use of the matrimonial home or its contents.
15.8 All of the above suggestions met with the general approval and support of those who submitted comments on them. Two consultees, however, suggested that there. would be merit in having a choice of law rule on matrimonial property which was the same for moveable and immovable. It might be worth re-examining this suggestion later if a unitary rule is adopted in relation to succession. In the meantime, however, there is no evidence that the present rule. for immovable property causes practical difficulty or inconvenience or gives rise to any complaint.
15.9 We recommend that
76. The effect, if any, which marriage has on a person's capacity and obligations (other than the obligation of aliment, which is considered separately later) should be determined by the law governing that person's capacity and obligations generally.
77. The effect, if any, which marriage has on the spouses' property should be determined, in the case of immovable property, by the law of the country where that property is situated and, in the case of moveable property, by the law of the spouses' common domicile. Where the spouses do not have the same domicile marriage should have no automatic effect on their moveable property.
(Draft Bill, clause 32.)
78. The rules in the preceding recommendation should be subject
(a) to any agreement between the spouses, and
(b) to the proviso that a change of domicile by one or both spouses should not affect either spouse's vested rights in property.
(Draft Bill, clause.32(3) and (4).)
(Draft Bill, clause 32(2).)