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Introduction
17.1 The question for consideration in this part is whether there is any place in a new Scottish family law code for the concepts of legitimacy, illegitimacy and legitimation. We suggested in the discussion paper that there was not and that these concepts, and the associated declarators of legitimacy, illegitimacy and legitimation, should not feature in the new law. These suggestions were supported, in some cases very strongly, by almost all of those who commented on them. One of the very few objections came from the Law Society of Scotland's law reform committee. The committee recognised that legitimacy and illegitimacy were of much reduced practical significance nowadays and had sympathy with the view that the concepts should be consigned to history. However the committee thought that, because there would have to be some qualifications and saving provisions, there was a risk that the reform might cause confusion and might be seen as nothing more than an exercise in semantics. The committee's comments were reasonable ones, reasonably made. However, the status of illegitimacy is much more than a matter of semantics to those individuals who are affected by it, and the committee may not have fully appreciated that in the context of a new code a decision has to be made now about whether or not to include provisions on illegitimacy, legitimacy and legitimation and the associated declarators. This is not a decision which can be sensibly deferred. It would, in our view, be wrong to burden a new code with outdated concepts which have no current legal significance for the vast majority of the population, when a simple savings provision for hereditary titles and certain existing deeds and enactments is all that is required. We are not therefore persuaded by the committee's comments although we have considered them carefully and have tried to frame the necessary savings -in such a way as to minimise confusion.
17.2 The Law Reform (Parent and Child) (Scotland) Act 1986, which implemented this Commission's report on Illegitimacy, 1 removed the few remaining disabilities of people born out of wedlock and enacted the general principle that
"The fact that a person's parents are not or have not been married to one another shall be left out of account in establishing the legal relationship between the person and any other person, and accordingly any such relationship shall have effect as if the parents were or had been married to one another." 2
This general principle is, however, subject to a number of savings (for example, for
enactments passed or made, or deeds executed, before the Act came into force) and it does not mean that fathers of children always have parental rights. 3 Under the Act a child's father has parental rights automatically only if he is married to the child's mother or was married to her at the time of the child's conception or subsequently. 4 Otherwise he must apply to a court if he wishes to obtain parental rights. 5 We have already discussed the question of the father's parental responsibilities and rights . 6 It is a separate question.
17.3 The Law Reform (Parent and Child) (Scotland) Act 1986 did not abolish the status of legitimacy or the status of illegitimacy. Indeed it referred, in the context of rules on jurisdiction, to actions for declarator of legitimacy, legitimation or illegitimacy, 7 and it left the Legitimation (Scotland) Act 1968 unrepealed. This Commission recommended, however, that the terms "legitimate" and "illegitimate", as applied to people, should whenever possible cease to be used in legislation. 8 We recognised that it was offensive for the law to use terms which suggested that some people were legitimate or lawful, and some people illegitimate or unlawful. 9 We considered at that time that it would not be appropriate to legislate to remove the status of illegitimacy in Scots law. This was partly because the terms "legitimate" and "legitimated" continued to appear in certain United Kingdom statutes and were likely to be found for some time in pre-Act documents, and partly because we hoped that, almost all legal differences between people born in marriage and people born out of marriage having been removed, the idea of a separate status of illegitimacy would gradually wither away. 10
17.4 If the advantages of a codification of family law are to be fully realised, unnecessary and anachronistic concepts will have to be eliminated. Legitimacy, illegitimacy and legitimation now fall into this category. A separate status is justifiable in the law where it indicates that the person possessing it is in a significantly different legal position from other people. There are now virtually no legal differences between those whose parents are, or have been, married to each other and those whose parents have never been married to each other, and the retention of a -separate status of legitimacy is unnecessary. The separate status of illegitimacy is not only unnecessary but is also considered by many to be offensive. Given the strong support received on consultation, we have no difficulty in concluding that the concepts of legitimacy, illegitimacy and legitimation should not feature in a new code. In the new Scottish family law children should just be children, and people should just be people, whether their parents were married to each other or not. We proceed to consider what legislative changes this requires and what savings might be needed.
17.5 It is a simple matter to amend section 1(1) of the Law Reform (Parent and Child) (Scotland)
Act 1986 so as to make it clear that the status of illegitimacy is being abolished. 11 The status of legitimacy will also cease to have any content, as everyone will be equally legitimate, but it is unnecessary to provide expressly for this.
17.6 If the status of illegitimacy is abolished the concept of legitimation by subsequent marriage ceases to have any meaning, because everyone is legitimate by operation of law. The Legitimation (Scotland) Act 1968 should therefore be repealed. Its provisions would, in any event, even if no change were made in the underlying concepts, be quite inappropriate in a new code. It proceeds on the assumption that legitimacy carries with it a whole bundle of rights and obligations. That is no longer so. However, the Act did make a useful change in relation to succession to hereditary titles and, following on representations to this effect from the Lord Lyon, we have taken care in the draft Bill to preserve .its effect in this area. 12
17.7 If the above changes were made then clearly declarators of legitimacy, illegitimacy or legitimation would be unnecessary and inappropriate. References to them, including the references in section 7 of the 1986 Act and in section 8 of the Civil Evidence (Scotland) Act 1988, would fall to be repealed. Declarators of parentage would, of course, continue to be available.
17.8 These changes would simplify and improve the law. There would, however, continue to be
references to legitimate persons, (or "lawful heirs" or "lawful issue" and so on) and possibly also to illegitimate persons, in some old enactments and deeds. Some content has to be given to these. It is, however, easy enough to provide that where a reference is made, directly or indirectly, in whatever terms, 13 to a legitimate or lawful person in an enactment passed or made before the date of commencement of the new legislation or in a deed executed before that date it is to be taken to be a reference to a person whose parents were married to each other at the time of that person's conception or at any later time. 14 Any reference in pre-commencement enactment or deed to an illegitimate person would have a corresponding meaning-that is, it would be taken as a reference to a person whose parents had never been married to each other at any time since the time of the person's conception. 15 All of this would be subject to the rules on the effects of adoption, noted below. People drafting future deeds and enactments would be expected not to use non-existent concepts. Any reference to a lawful child of X in a post-commencement deed or enactment would apply to any child of X. These rules would replace section 1(4) of the 1986 Act, which deals with similar questions but is not consistent with the abolition of the status of illegitimacy.
17.9 Minor consequential amendments would also be needed in the Adoption (Scotland) Act 1978. Section 39(1) provides that an adopted child is to be treated as the "legitimate" child of the marriage or (if adopted by one person) as the "legitimate" child of the adopter, and as if he were not the child of any other person. The express reference to legitimacy would be inappropriate, if our earlier suggestion were implemented, and the draft Bill appended to this report makes amendments accordingly. Similar minor amendments are made in relation to sections 39(2) and 46(2). 16
17.10 We recommend that
88.(a) Section 1(1) of the Law Reform (Parent and Child) (Scotland) Act 1986 should be amended so as to provide expressly that no person whose status is governed by Scots law should be regarded as illegitimate.
(b) The Legitimation (Scotland) Act 1968 should be repealed as unnecessary.
(c) References in existing legislation to actions for declarator of legitimacy, legitimation and illegitimacy should be repealed.
(d) Any reference to a legitimate or lawful person in any enactment passed or made, or in any document executed, before the commencement of the new legislation should be construed as a reference to a person whose parents were married to each other at the time of the person's conception or at any later time, and any reference to an illegitimate person in any such enactment or document should be construed accordingly.
(e) Consequential amendments should be made in sections 39 and 46 of the Adoption
(Scotland) Act 1978.
17.11 The existing law excludes coats of arms from the changes made by the Law Reform (Parent and Child) (Scotland) Act 1986. The Lord Lyon suggested to us that this was unreasonable and unnecessary and that the reference to coats of arms in section 9(1)(c) of the Law Reform (Parent and Child) (Scotland) Act 1986 should be repealed. We are glad to accept this suggestion. The fewer exceptions to the general rule of equality in the 1986 Act the better. We therefore recommend that
88.(f) The reference to coats of arms in section 9(1)(c) of the Law Reform (Parent and Child) (Scotland) Act 1986 should be repealed.
(Draft Bill, clause 44 and Schedules 1 and 2.)
17.12 If the status of illegitimacy were abolished in Scotland the rules on the domicile of children would have to be. changed. The existing law is broadly to the effect that the domicile of a pupil child depends on the domicile of the child's father if the child is legitimate but depends on the domicile of the child's mother if the child is illegitimate. 17 There is a statutory exception in the case of a legitimate child whose parents are living apart. 18 It would be unreasonable if the child's domicile automatically followed that of the father in all cases even if, for example, the child was living with the mother in Scotland and the father had emigrated. The details of this exception, and the other refinements of the present law need not detain us. The important point is that the existing law makes a child's domicile depend on his or her legitimacy and that this has to be changed.
17.13 The Scottish and English Law Commissions made joint recommendations on the law of domicile in 1987. 19 These have not yet been implemented. In the context of the abolition of the status of illegitimacy in Scots law it is clearly essential that the existing law on the domicile of children be changed. We therefore suggest that, if the joint report on domicile has not been implemented by the time this report is implemented, the Scottish law on the domicile of children should be changed in the way recommended in the joint report. We recommend that
89. (a) The existing law on the domicile of children (which makes domicile depend on legitimacy) should be changed.
(b) The domicile of a child under the age of 16 should be determined as follows
(i) the child should be domiciled in the country with which he or she is for the time being most closely connected;
(ii) where the child's parents are domiciled in the same country and the child has his or her home with either or both of them, it is to be presumed, unless the contrary is shown, that the child is most closely connected with that country;
(iii) where the child's parents are not domiciled in the same country and the child has his or her home with one of them, but not with the other, it is to be presumed, unless the contrary is shown, that the child is most closely connected with the country in which the parent with whom the child has his or her home is domiciled.
(c) It should be made clear that a person's domicile of origin is the first domicile which he or she has under the above rules.
(Draft Bill, clause 45)
17.14 The existing choice of law rules on legitimacy, illegitimacy and legitimation are uncertain 20 and, in so far as they give primacy to the father's domicile, old-fashioned. They would, in any event, have to be reframed if the status of illegitimacy were abolished. In a new code there ought to be clear new rules adapted to the new substantive law. If the law on the domicile of children were reformed as we have recommended 21 then it would be possible to have a very simple choice of law rule which would not be biased in favour of the father or the mother but would use the person's own domicile at the relevant time as the connecting factor. We suggested such a rule in the discussion paper, on the assumption that the joint recommendations of the two Commissions on domicile would be implemented, and it was supported by all those who commented on it.
17.15 We recommend that
90. The way, if any, in which a person's status at any time is affected by whether his or her parents are or have been married to each other should depend on the law of the person's domicile at that time.
(Draft Bill, clause 46)
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