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1. (a) There should be a statutory statement of parental responsibilities.
(b) It should be provided that a parent has in relation to his or her child a responsibility, so far as is practicable and in the interests of the child,
(i) to safeguard and promote the child's health, development and welfare
(ii) to provide, in a manner appropriate to the child's stage of development, direction and guidance to the child
(iii) if not living with the child, to maintain personal relations and direct contact with the child on a regular basis
(iv) to act as the child's legal representative and, in that capacity, to administer, in the interests of the child, any property belonging to the child.
(c) The parental responsibilities to safeguard and promote the child's health, development and welfare and to provide appropriate direction and guidance should last until the child attains the age of 18. The other responsibilities mentioned should last until the child attains the age of 16.
(d) The above responsibilities should be in addition to any other statutory parental duties or responsibilities, including those relating to financial support under the Family Law (Scotland) Act 1985 and the Child Support Act 1991 and those relating to education under the Education (Scotland) Act 1980.
(Paragraphs 2.1 to 2.13. Draft Bill, clause l.)
2. It should be made clear that parents have parental rights in order to enable them to fulfil their parental responsibilities.
(Paragraph 2.14. Draft Bill, clause 2(1).)
3. The existing parental rights of guardianship, custody and access should be replaced by new rights expressed in such a way as to reflect the policy that both parents, even after separation, normally have a continuing parental role to play in relation to the upbringing of the child.
(Paragraphs 2.15 to 2.35. Draft Bill, clause 2(2).)
4. In addition to any rights conferred by any other enactment a parent should have the right, so long as the child is under the age of 16,
(a) to have the child living with him or her, or otherwise to regulate the child's residence
(b) to control, direct or guide, in a manner appropriate to the child's stage of development, the child's upbringing
(c) if not living with the child, to maintain personal relations and direct contact with the child and
(d) to act as the child's legal representative and, in that capacity to administer the child's property, and to act, or give consent,, on behalf of the child in any transaction having legal effect where the child is incapable of acting or consenting on his or her own behalf.
(Paragraphs 2.15 to 2.35. Draft Bill, clause 2(1) and (4).)
5. In the absence of any court order regulating the position, both parents of the child should have parental responsibilities and rights whether or not they are or have been married to each other.
(Paragraphs 2.36 to 2.50. Draft Bill, clause 3(1).)
6.(a) It should continue to be the position that, where two or more persons have any parental right, each of them may exercise that right without the consent of the other person or persons, unless any decree or deed conferring the right provides otherwise.
(b) However, none of those persons should be entitled to remove a child from, or to retain a child outwith, the United Kingdom without the consent of the parent (or other person entitled to control the child's residence) with whom the child is habitually resident in Scotland.
(Paragraph 2.56. Draft Bill, clause 2(2) and (3).)
7. It should be provided that the fact that a person has parental responsibilities or rights in relation to a child does not entitle him or her to act in any way which would be incompatible with any court decree relating to the child, or the child's property, or any supervision requirement relating to the child made by a children's hearing.
(Paragraph 2.57. Draft Bill, clause 3(3).)
8. It should be provided that
(a) a person who has parental responsibilities or rights in relation to a child may not surrender or transfer any part of these responsibilities or rights to another but may arrange for some or all of them to be met or exercised by one or more persons acting on his or her behalf;
(b) the person with whom any such arrangement is made may be a person who already has parental responsibilities or rights in relation to the child concerned;
(c) the making of any such arrangement does not affect any liability of the person making it which may arise from any failure to meet any part of his or her parental responsibilities for the child concerned.
(Paragraph 2.58. Draft Bill, clause 3(4) to (6).)
9. A person over the age of 16 years who does not have parental responsibilities or rights in relation to a child but has care or control of the child (other than as a teacher in a school) should be empowered to do what is reasonable in all the circumstances (and, in particular, to give legally effective consent to any medical or dental treatment or procedure where the child is not capable of consenting on his or her own behalf) for the purpose of safeguarding the child's health, development or welfare.
(Paragraph 2.59. Draft Bill, clause 5.)
10. (a) It should be provided that any person taking any major decision relating to a child in the exercise of any parental responsibility or right should, whenever practicable, ascertain the views of the child regarding the decision and give due consideration to them, having regard to the child's age and maturity.
(b) For this purpose there should -be a presumption that a child of the age of 12 or more has sufficient maturity to express a reasonable view regarding the decision, but this should not carry any implication that the views of a child under that age are not worthy of consideration.
(c) A transaction entered into in good faith by a third party dealing with a parent or other person acting as a child's legal representative should not be open to challenge on the ground that the Child was not consulted or that due consideration was not given to the child's views.
(Paragraphs 2.60 to 2.66. Draft Bill, clause 6.)
11. (a) In any proceedings (whether criminal or civil) against a person for striking a child, it should not be a defence that the person struck the child in the purported exercise of any parental right if he or she struck the child
(i) with a stick, belt or other object; or
(ii) in such a way as to cause, or to risk causing, injury; or
(iii) in such a way as to cause, or to risk causing, pain or discomfort lasting more than a very short time.
(b) A person who has care or control of a child but who does not have parental responsibilities or rights in relation to the child should have no greater right than a parent has to administer corporal punishment to the child.
(c) Section 12(1) of the Children and Young Persons (Scotland) Act 1937 should be amended by deleting the references to assault, which is adequately covered by the common law.
(d) Section 12(7) of the Children and Young Persons (Scotland) Act 1937 should be repealed.
(Paragraphs 2.67 to 2.105. Draft Bill, clause 4 and Schedule 2.)
12. (a) The references to the parent being the "guardian" of the child in section 4 paragraph (b) of the Law Reform (Parent and Child) (Scotland) Act 1986, as amended, should, as a consequence of the changes recommended earlier, become references to the parent being entitled to act as the child's legal representative.
(b) The reference to a "person" in section 4 of the 1986 Act should become a reference to an individual.
(Paragraph 3.2. Draft Bill, clause 7.)
13. A guardian of a child should be able to appoint another individual to take his or her place as the child's guardian in the event of his or her death.
(Paragraph 3.4. Draft Bill, clause 7(2).)
14. An appointment of a guardian by a parent or existing guardian should, for the purposes of any provision implementing Recommendation 10 above (views of children be taken into consideration, depending on age and maturity) be regarded as a major decision involving the exercise of a parental right.
(Paragraph 3.5. Draft Bill, clause 7(6).)
15. Provision should be made for the revocation of an appointment of a nominated guardian, on similar lines to the provisions in section 6(1) to (4) of the Children Act 1989 (set out in paragraph 3.6).
(Paragraphs 3.6 to 3.7. Draft Bill, clause 8(1) to (4).)
16. An appointment as guardian should not take effect until accepted, either expressly, or impliedly by acts which are not consistent with any other intention.
(Paragraph 3.8. Draft Bill, clause 7(3).)
17. If two or more persons are appointed as guardians any one or more should be able to accept office-, even if both or all do not accept, unless the appointment expressly provides otherwise.
(Paragraph 3.9. Draft Bill, clause 7(4).)
18.(a) A guardian should have the same responsibilities in relation to the child as a parent
has.
(b) To enable him or her to fulfil these responsibilities a guardian should have the same parental rights as a parent has.
(Paragraphs 3.13 to 3.15. Draft Bill, clause 7(5).)
19. Once a guardian has accepted office then, unless the appointment provides for earlier termination, guardianship should be terminated only by
(a) the child's attaining the age of 18 years,
(b) the death of the child or the guardian, or
(c) a court order.
(Paragraph 3.16. Draft Bill, clause 8(5).)
20. (a) The powers available to the courts to make special provision for sums payable to children should be extended and generalised and should be the same for all courts.
(b) Where in any court proceedings a sum of money becomes payable to, or for the benefit of, a person under legal disability by reason of non-age the court should have power to make such order relating to the payment and management of the money for the benefit of that person as it thinks fit.
(c) The court's power should expressly include
(i) power to appoint a judicial factor, with appropriate powers, to invest, apply or otherwise deal with, the money for the benefit of the person concerned,
(ii) power to order the money to be paid to the sheriff clerk or the Accountant of Court, to be
invested, applied or otherwise dealt with, under the directions of the court, for the benefit of the person concerned,
(iii) power to order the money to be paid to the parent or guardian of the person concerned, to be invested, applied or otherwise dealt with, as directed by the court, for the benefit of that person, and
(iv) power to order payment to be made directly to the person concerned.
(d) It should be made clear that the receipt of any person to whom payment is made in terms of the court's order is a - sufficient discharge.
(Paragraphs 4.3 to 4.8. Draft Bill, clause 16.)
2 1. (a) Where an executor or trustee holds property owned by, or due to, a child under the age of 16, and the amount or value of the property exceeds £20,000 the executor or trustee should be bound, before handing over the property to the parent or guardian of the child to be administered by the parent or guardian (otherwise than as a trustee under a trust deed) to report to the Accountant of Court that the property is due to be handed over, and to seek the Accountant's directions.
(b) Where (in a case not covered by paragraph (a) above and not covered by our proposals on sums payable in court proceedings) any person holds property owned by, or due to, a child under the age of 16, and the amount or value of the property exceeds £5,000, the person may, at his or her option, before handing over the property to the parent or guardian to be administered by the parent or guardian (otherwise than as a trustee under a trust deed), report the matter to the Accountant of Court and seek the Accountant's directions.
(c) Where a report, and request for directions, has been received by the Accountant of Court he or she should have power
(i) to apply to the court for the appointment of a judicial factor (who could be the parent or guardian) and to direct that all or part of the property be transferred to the judicial factor,
(ii) to administer all or part of the property on behalf of the child and to direct that the property be transferred to him or her for that purpose,
(iii) to direct that all or part of the property be transferred to the parent or guardian subject to such conditions, if any, as the Accountant may consider appropriate, which conditions may include a requirement to have the Accountant's approval of capital expenditure and to exhibit annually the securities and bank books representing the capital of the estate.
(d) A person who has reported to the Accountant of Court, and sought his or her directions, under these provisions should not be free to transfer the property except in accordance with the Accountant's directions.
(Paragraphs 4.10 to 4.17. Draft Bill, clause 9.)
22. The court's powers to make orders relating to children should expressly include power to make orders relating to the administration of a child's property and, in particular, power to appoint a judicial factor, where appropriate, or to order a remit to the Accountant of Court to consider and report on suitable arrangements for - the future management of the property.
(Paragraph 4.18. Draft Bill, clauses 11(1) and 12(1)(e).)
23. It should be made clear that, subject to the obligation of the parent or guardian to account to the child, the right of legal representation in relation to a child carries with it the right to do any act in relation to the child's property which the child is legally incapable of doing but could have done if of full age and capacity.
(Paragraphs 4.19 to 4.20. Draft Bill, clause 10(3)(b).)
24. A parent or guardian acting as a child's legal representative in relation to the child's property should no longer be regarded as a trustee for the purposes of the Trusts (Scotland) Acts.
(Paragraph 4.21. Draft Bill, Schedule 2.)
25.(a) A parent or guardian who has, as a child's legal representative, held, administered or dealt with the child's property should continue to be liable (as under the existing law) to account to the child, when the parent or guardian ceases to be the child's legal
(b) In accounting, the parent or guardian should not be liable to the child in respect of any of the child's funds used in the proper discharge of the parent's or guardian's responsibility to promote the child's welfare.
(c) A parent or guardian acting as a child's legal representative in relation to the administration of the child's property should be required to act in that capacity as a reasonable and prudent person would act on his or her own behalf.
(Paragraphs 4.22 to 4.23. Draft Bill, clause 10.)
26. (a) The existing law on court orders relating to parental rights should, as a consequence of changes recommended earlier in this report, be expanded to cover not only parental rights but also parental responsibilities, guardianship and the administration of a child's property.
(b) Without prejudice to the, generality of the court's powers to make such orders as it thinks fit, it should be provided that a court may, on an application for an order relating to any of the above matters, make any one or more of the following orders
(i) an order ("a residence order") regulating the arrangements to be made as to the person with whom a child is to live;
(ii) an order ("a contact order") regulating the arrangements to be made for maintaining personal relations and direct contact between a child and a parent, or other person, with whom the child is not, or will not be, living;
iii) an order ("a specific issue order") regulating any specific question which has arisen, or which may arise, in connection with any of the matters mentioned in paragraph (a) above;
(iv) an interdict prohibiting the taking of any step in the exercise of parental responsibilities or parental rights or guardianship of a child, or the administration of a child's property.
(Paragraphs 5.1 to 5.4. Draft Bill, clauses 11(1) and 12(1).)
27. For the avoidance of any doubt, it should be made clear that a court in an order relating to parental responsibilities or rights or guardianship may
(a) deprive a person of some or all of his or her parental responsibilities or rights
(b) appoint or remove a guardian.
(Paragraph 5.5. Draft Bill, clause 12(4).)
28. It should be made clear that a local authority cannot by-pass the normal rules on compulsory measures of care or assumptions of parental rights by applying for guardianship or for a residence order or a contact order. However, a local authority should be able to apply for a specific issue order or an interdict.
(Paragraphs 5.7 to 5.8. Draft Bill, clause 11(4).)
29. There is no need to place any restrictions on applications by local authority foster parents for orders relating to parental responsibilities or rights.
(Paragraph 5.9. No legislation required.)
30. Section 47 of the Children Act 1975 should be repealed.
(Paragraph 5.10. Draft Bill, Schedule 2.)
31. For the avoidance of any doubt it should be made clear that the child concerned may apply for an order relating to parental responsibilities or rights, guardianship or the administration of his or her property.
(Paragraph 5.11. Draft Bill, clause 11(3).)
32. (a) Section 38C of the Sheriff Courts (Scotland) Act 1907 and section 20(1) of the Court of Session Act 1988 should be repealed.
(b) It should be provided that an application for an order relating to parental responsibilities or rights, guardianship or the administration of a child's property may be made either
(i) in independent proceedings in the Court of Session or a sheriff court (whether or not the application is accompanied by an application for any other remedy which can competently be sought in those proceedings) or
(ii) in an action for divorce or for a declarator of marriage, nullity of marriage, parentage or non-parentage.
(Paragraphs 5.12 to 5.14. Draft Bill, clauses 11(2) and 19 and Schedule 2.)
31(a) It should be provided that a court should not make any order relating to parental responsibilities, parental rights, guardianship or the administration of a child's property unless satisfied that making the order will be better for the child than making no such order at all.
(b) In relation to orders relating to the administration of a child's property the court's duty to regard the welfare of the child as the paramount consideration, and not to make any order unless satisfied that to do so would be in the interests of the child and better than making no order at all, should be qualified by a provision protecting the position of third parties who have acquired any property of the child, or any right or interest in relation to it, in good faith and for value.
(Paragraphs 5.16 to 5.18. Draft Bill, clause 12(3).)
34. (a) Rules of court should ensure that a child who is capable of forming his or her own views and who wishes to have his or her views put directly before a court in any proceedings relating to parental responsibilities or rights, or guardianship or the administration of the child's property, has a readily available procedural mechanism for doing so.
(b) In considering whether to make an order relating to parental 'responsibilities or rights, or guardianship or the administration of a child's property a court should be required to give due consideration to any relevant views 6f the child concerned which are properly before it, taking account of the child's age and maturity.
(c) Without prejudice to the generality of the rules recommended above, it should be presumed that a child of or above the age of 12 years is capable of forming his or her own views and has sufficient maturity to express a reasonable view.
(d) The new rules recommended above are not intended to require a child who is not an independent party to the proceedings to be separately legally represented.
(Paragraphs 5.24 to 5.29. Draft Bill, clause 12(5)and (6).)
35. Section 8 of the Matrimonial Proceedings (Children) Act 1958 (court's duty in relation to arrangements for children) should be replaced by a provision, on the lines of section 41 of the Matrimonial Causes Act 1973 as substituted by the Children Act 1989, requiring the court in an action for divorce or nullity of marriage, to consider
(a) whether there are any children of the family under the age of 16 and
(b) if so, whether the court should make any order relating to them even if none has been applied for by the parties.
(Paragraphs 5.30 to 5.35. Draft Bill, clause 14. See also clause 12(2)(a).)
36. For the purposes of the preceding recommendation "child of the family" in relation to the parties to a marriage should mean
(a) a child of both of those parties; and
(b) any other child, not being a child who is placed with those parties as foster parents by a local authority or voluntary organisation, who has been treated by both of those parties as a child of their family.
(Paragraph 5.36. Draft Bill, clause 14(4).)
37. Where a court makes a residence order to the effect that a child is to live with a person who is not a parent or guardian of the child concerned, that person should have parental responsibilities and rights in relation to the child while the residence order is in force.
(Paragraphs 5.37 to 5.38. Draft Bill, clause 13(2).)
38. A court order by which any person acquires any parental responsibility or right should deprive any other person of any parental responsibility or right only in so far as the order expressly so provides and only to the extent necessary to give effect to the order.
(Paragraph 5.39. Draft Bill, clause 13(1).)
39. (a) Whether a person has, by operation of law, parental responsibilities and rights (as these terms are used in this report) in relation to a child, and the nature and extent of those responsibilities and rights, should depend on the law of the child's habitual residence.
(b) However, the applicability of any rules designed for the immediate protection of the child should depend on the law of the place where the child is for the time being.
(c) These rules should be subject to the rule that in court proceedings in Scotland relating to parental responsibilities and rights the welfare of the child is the paramount consideration.
(Paragraphs 6.1 to 6.3. Draft Bill, clause 17(1)(2) and (3).)
40.(a) The question whether a person is validly appointed or constituted guardian of a child should depend on the law of the child's habitual residence at the time the appointment is made (which, in the case of a testamentary appointment, should be regarded as the date of the appointer's death) or the constituting event occurs.
(b) The responsibilities and rights of a guardian of a child at any time should depend on the law of the child's habitual residence at that time.
(c) However, the applicability of any rules designed for the immediate protection of the child should depend on the law of the place where the child is for the time being.
(d) The rules recommended in paragraphs (b) and (c) should be subject to the rule that in court proceedings in Scotland relating to guardianship the welfare of the child is the paramount consideration.
(Paragraphs 6.4 to 6.6. Draft Bill, clause 17.)
4 1. (a) The reporting duty recommended in recommendation 21 above should apply to any person who proposes to hand over property to, or to be administered by, the parent or guardian of a child habitually resident in Scotland.
(b) The Court of Session should have jurisdiction to make orders relating to the administration of a child's property
(i) if the child is habitually resident in Scotland or
(ii) if the property is situated in Scotland.
(c) A sheriff should have jurisdiction to make such orders
(i) if the child is habitually resident in the sheriffdom or
(ii) if the property is situated in the sheriffdom.
(Paragraph 6.7. Draft Bill, clause 18.)
42. (a) Marriage by cohabitation with habit and repute should be abolished as from the date of commencement of implementing legislation.
(b) Accordingly, it should no longer be possible to contract such a marriage after that date, but this would be without prejudice to the validity of any such marriage already contracted before that date (whether or not a declarator of marriage had been obtained).
(Paragraphs 7.1 to 7.13. Draft Bill, clause 22.)
43. It should continue to be a ground of nullity of marriage that either party is at the time of the marriage already married.
(Paragraph 8.3. Draft Bill, clauses 20 and 21(1).)
44. It should continue to be a ground of nullity of marriage that either party is, at the time of the marriage, under the age of 16.
(Paragraph 8.4. Draft Bill, clauses 20 and 21(1).)
45. It should continue to be a ground of nullity of marriage that both parties are of the same sex.
(Paragraph 8.5. Draft Bill, clauses 20 and 21(1).)
46. It should continue to be a ground of nullity of marriage that the parties are within the prohibited degrees of relationship specified in the Marriage (Scotland) Act 1977; subject, however, to the removal of 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.
(Paragraphs 8.6 to 8.13. Draft Bill, clauses 20, 21(1) and Schedule 2.)
47. (a) There should continue to be, a rule on the lines of section 23A of the Marriage (Scotland) Act 1977, to the effect that a duly registered marriage, where both parties were present at the ceremony, is not invalid by reason only of any failure to comply with any legal preliminaries or formal requirements or by reason of any lack of qualification on the part of the celebrant. This rule should extend to marriages in Scotland solemnised before as well as after the commencement of the new legislation, but a marriage solemnised before such commencement should not be validated in this way if it had already, before such commencement, been declared void by a competent court or followed by another marriage in reliance on its nullity.
(b) In the case of a marriage in Scotland, the essential formal requirements (subject to the validating rule in recommendation 47(a)) should be
(i) the giving of notice of intention to marry
(ii) the production to the approved celebrant, or availability to an authorised registrar, of a marriage schedule in respect of the marriage as required by section 13(1)(a) and 19(2)(a) respectively of the Marriage (Scotland) Act 1977
(iii) the presence of both parties at the ceremony
(iv) the presence as witnesses of two persons professing to be 16 years of age or over
(v) the presence of an *authorised or legally recognised celebrant and
(vi) the outward exchange by the parties of present consent to marriage.
(Paragraphs 8.14 to 8.15. Draft Bill, clause 21(1)(c), (5) and (7).)
48.(a) Subject to the subsidiary rules suggested below, a marriage should be void if, because of mental incapacity, error, or duress either party does not freely consent to marry the other party.
(b) (i) A marriage should be void on the ground of a party's mental incapacity, whether temporary or permanent, only if the party is at the time of the marriage ceremony incapable of understanding the nature of marriage or of giving consent to marriage.
(ii) Where a person was under a temporary mental incapacity at the time of the marriage ceremony but does not bring an action for declarator of nullity of marriage as soon as is reasonably practicable after regaining capacity the marriage should be regarded as having been valid as from the time of the ceremony.
(c) (i) A marriage should be void on the ground of error only if at the time of the ceremony either party was in error as to the nature of the ceremony or the identity of the other party.
(ii) A party should be regarded as being in error as to the identity of the other party only if he or she mistakenly believed-that the other party at the ceremony was the person whom he or she had agreed to marry, regardless of the name or qualities of that person.
(iii)Where a person was in error as to the nature of the ceremony or the identity of the other party to the marriage but does not bring an action for declarator of nullity of marriage as soon as is reasonably practicable after discovering the error the marriage should be regarded as having been valid as from the time of the ceremony.
(d) (i) A marriage should be void on the ground of duress only if one party was forced against his or her will to marry the other party.
(ii) Where a person was forced against his or her will to marry the other party but does not bring an action for declarator of nullity of marriage as soon as is reasonably practicable after the duress ceases to have effect the marriage should be regarded as having been valid as from the time of the ceremony.
(e) Without prejudice to the rules recommended above, a marriage should not be void merely because one or both parties went through the ceremony of marriage with a tacit mental reservation to the effect that notwithstanding the nature and form of the ceremony no legal marriage would result from it.
(Paragraphs 8.16 to 8.20. Draft Bill, clause 21(1)(b) and (2).)
49. Marriages should not be voidable on the ground of impotency.
(Paragraphs 8.21 to 8.29. Draft Bill, clause 21(8).)
50. There should be no new grounds on which a marriage is voidable in Scots law.
(Paragraph 8.30. No legislation required.)
51. 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.
(Paragraphs 9.1 to 9.2. Draft Bill, clause 23(1) and Schedule 1 paragraph 2.)
52. (a) The remedy of an action for declarator of freedom and putting to silence should be abolished.
(b) It should be made clear that the courts' ordinary powers to grant interdicts and interim interdicts include power to grant interdict or interim interdict against the repetition of a false assertion of marriage to the applicant.
(Paragraphs 9.3 to 9.5. Draft Bill, clause 23(2) and (3).)
53. The rules on jurisdiction applying to actions for declarator of marriage should also apply to actions for declarator that a divorce, annulment or legal separation is, or is not, entitled to recognition in Scotland.
(Paragraphs 9.6 to 9.8. Draft Bill, Schedule 1, amendments to Domicile and Matrimonial Proceedings Act 1973, section 7.)
54. Section 2(2) of the Law Reform (Husband and Wife) Act 1962 (which gives the court power to dismiss certain proceedings between spouses in delict) should be repealed.
(Paragraphs 10.1 to 10.8. Draft Bill, clause 24(c) and Schedule 2.)
55. (a) Under section 6(1) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (which relates to the continued exercise of occupancy rights after a dealing) a person acquiring the home or an interest in it should not be affected by the occupancy rights-of the spouse of a former owner (i.e. an owner prior to the person making the transfer to that acquirer) if the acquirer was (i) a transferee for value acting in good faith or (ii) someone who derives title from such a transferee.
(b) The period referred to in section 6(3)(f) of the 1981 Act should be reduced from 5 years to 2 years.
(c) A court should be able to dispense with consent to a proposed dealing under section 7 of the 1981 Act notwithstanding that no negotiations have yet been entered into or concluded, provided that the dispensation relates to
(i) a sale at not less than a specified price and within a specified time from the date of the court's order, or
(ii) the grant of a heritable security for a loan of not more than a specified amount to be executed within a specified time from the date of the court's order.
(d) A court which refuses to dispense with a non-entitled spouse's consent to a dealing should have power (i) to order that spouse, if he or she is in occupation of the home, to make payments in lieu of rent and (ii) to attach to the refusal of consent such other conditions relating to the occupation of the home by the non-entitled spouse as it thinks fit.
(e) Section 6(3)(e) of the 1981 Act should apply to all transfers for value, not merely sales.
(f) The references to affidavits in section 6(3)(e) and section 8(2A) of the 1981 Act should be replaced by references to written declarations (attracting the penalties of the False Oaths (Scotland) Act 1933) subscribed by the transferor of the property or grantor of the security.
(g) Where a dealing consists of a termination by the entitled spouse of his or her tenancy of the matrimonial home then, if section 6 of the 1981 Act applies, the non-entitled spouse should be deemed, so long as he or she is entitled to continue to exercise occupancy rights, to be a tenant of the home under a tenancy in the same terms (apart from the identity of the tenant) as the terminated tenancy.
(h) (i) An attorney acting under a power of attorney should be permitted to execute a declaration, consent or renunciation for the purposes of the 1981 Act.
(ii) The curator bonis of an incapax should be permitted to execute a declaration, consent or renunciation for the purposes of the 1981 Act.
(Paragraphs 11.3 to 11.23. Draft Bill, clause 26 and Schedule L)
56. The occupancy rights of a non-entitled spouse in a matrimonial home should terminate if the spouses have been separated for a continuous period of two years or more during which period the non-entitled spouse has not occupied the home.
(Paragraphs 11.24 to 11.28. Draft Bill, clause 25.)
57.(a) Section 14(1) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 should confer an express power to grant matrimonial interdicts.
(b) It should be made clear in the Act that a matrimonial interdict under section 14(1) cannot be used as an easy alternative to an exclusion order. A matrimonial interdict should not be available so as to exclude an entitled spouse, or a spouse with occupancy rights, from the matrimonial home unless the interdict is ancillary to an exclusion order or to a refusal by the court of leave to exercise occupancy rights in the circumstances mentioned in section 1(3) of the Act.
(c) The definition of "matrimonial interdict" in section 14(2) of the 1981 Act should be extended so that paragraph (b) extends not only to a matrimonial home but also to any home or other premises occupied by the applicant, to the applicant's place of work and to the school attended by any child in the applicant's care.
(Paragraphs 11.30 to 11.33. Draft Bill, clause 27(1).)
58. It should be made clear in section 15(1)(b) of the 1981 Act (power of arrest) that the onus is on the non-applicant spouse to show that a power of arrest is unnecessary.
(Paragraphs 11.34 to 11.35. Draft Bill, clause 27(2).)
59. 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.
(Paragraph 11.36. No legislation required.)
60. A power of arrest attached to a matrimonial interdict should not cease to have effect on the termination of the marriage but 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 on cause shown, within that time.
(Paragraphs 11.37 to 11.39. Draft Bill, clause 27(3)..)
61. The definition of "matrimonial interdict" should be extended to cover a corresponding interdict for the protection of a former spouse.
(Paragraph 11.40. Draft Bill, clause 27(1).)
62. Subsection (4) and subsection (5)(b)(ii) of section 17 of the 1981 Act (procedure after arrest for breach of a matrimonial interdict) should be repealed.
(Paragraphs 11.41 to 11.45. Draft Bill, clause 27(4).)
63. It should be made clear in the definition of "matrimonial home" that that term does not include a residence provided or made available by anyone for one spouse to reside in. whether with any child of the family or not, separately from the other spouse.
(Paragraph 11.46. Draft Bill, clause 28(b).)
64. It should be made clear that the definition of "matrimonial home" includes any ground or building which is required for its amenity or convenience even if not attached to it.
(Paragraph 11.47. Draft Bill, clause 28(a).)
65. It should be made clear that where the tenancy of a matrimonial home is transferred from one spouse to the other with the intention that the house is thereafter to be the residence of the transferee separately from his or her spouse, the house is not a matrimonial home after the transfer.
(Paragraph 11.48. Draft Bill, clause 28(c).)
66. Judicial separation should be abolished.
(Paragraphs 12.1 to 12.19. Draft Bill, clause -29.)
67. The reference in section 1(3) of the Divorce (Scotland) Act 1976 to adultery which "has been connived at in such a way as to raise the defence of lenocinium" should be replaced by a reference to adultery which has been actively promoted or encouraged by the pursuer.
(Paragraphs 13.1 to 13.4. Draft Bill, clause 30(1).)
68. (a) It should be expressly provided that the court in an action for divorce should not grant decree of divorce if satisfied that (whether or not as a result of collusion) the pursuer has put forward a false case or the defender has withheld a good defence.
(b) Collusion as a separate bar to divorce should be abolished.
(Paragraphs 13.5 to 13.8. Draft Bill, clause 30.)
69. Section 1(5) of the Divorce (Scotland) Act 1976 should be repealed.
(Paragraphs 13.9 to 13.12. Draft Bill, clause 30(3).)
70. (a) Subject to the Foreign Marriage Act 1892 as amended, the question whether a marriage is formally valid should be governed by the law of the place of celebration.
(b) Subject to the following recommendation and to section 50 of the Family Law Act 1986 (effect of divorce), the question 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 should be governed by the law of that party's domicile immediately before the marriage.
(Paragraphs 14.1 to 14.5. Draft Bill, clause 31(1) and (2).)
71. A marriage entered into in Scotland should be invalid, no matter what the domiciles of the parties, if, according to Scottish internal law, at the time when the marriage was entered into
(a) the parties were within the forbidden degrees of relationship,
(b) either party was already married,
(c) either party was under the age of 16,
(d) the parties were of the same sex, or
(e) because of mental incapacity, error or duress either party did not effectively consent to marriage but, without prejudice to the law on error or duress, should not be invalid merely because one or both parties went through the ceremony of marriage with a tacit mental reservation to the effect that notwithstanding the nature and form of the ceremony no legal marriage would result from it.
(Paragraphs 14.6 to 14.7. Draft Bill, clauses 20 and 21.)
72. A rule requiring a person under a certain age to obtain the prior consent of a parent or guardian before he or she can marry should be regarded as resulting in a legal incapacity for marriage if, but only if, it precludes a marriage by that person anywhere in any form while under that age.
(Paragraphs 14.8 to 14.10. Draft Bill, clauses 20 and 31(4).)
73. Where, on the application of the above rules, a marriage is initially valid it should not be annulled or declared null by a Scottish court on any ground.
(Paragraph 14.13. Draft Bill, clause 21(8).)
74. A foreign rule as to the validity or invalidity of a marriage should not be recognised or applied in Scotland where to do so would be contrary to Scottish public policy.
(Paragraph 14.12. Draft Bill, clauses 20 and 31(3).)
75. The existing rule that a Scottish court applies Scots law in a divorce action, no matter what the domiciles of the parties may be, should be put into statutory form.
(Paragraph 14.21. Draft Bill, clause 31(5).)
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.
(Paragraphs 15.1 to 15.3. No legislation required.)
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.
(Paragraphs 15.4 to 15.6. 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.
(Paragraph 15.6. Draft Bill, clause 32(3) and (4).)
79. Notwithstanding the rules in the preceding recommendations, the question whether a person is entitled to the benefit of protective rules relating to the occupation or use of the matrimonial home (whether moveable or immovable) or its contents should be determined by the law of the country where the matrimonial home is situated.
(Paragraph 15.7. Draft Bill, clause 32(2).)
80. (a) The presumption of equal shares in household goods in section 25 of the Family Law (Scotland) Act 1985 should be applied, with modifications, to cohabitants.
(b) The presumption should apply only to goods acquired during the cohabitation, and not to goods bought "in prospect of" cohabitation.
(c) The presumption should be rebuttable by proving that the goods belong to one party alone or to both in unequal shares and subsection (2) of section 25 (which restricts such proof in certain cases) should not be applied to cohabitants.
(Paragraphs 16.7 to 16.11. Draft Bill, clause 34.)
81. The presumption of equal shares in money and property derived from a housekeeping or similar allowance in section 26 of the Family Law (Scotland) Act 1985 should be applied, with the necessary modifications, to cohabitants.
(Paragraphs 16.12 to 16.13. Draft Bill, clause 35.)
82. (a) Where a cohabitation has terminated otherwise than by death, 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 in section 9(1)(b) of the Family Law (Scotland) Act 1985-namely 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.
(b) The Court of Session and the sheriff courts should have jurisdiction to entertain an application if they would have had jurisdiction to entertain an action for divorce between the parties.
(c) An application should be made by action, any necessary regulation of procedure being by rules of court.
(d) The court hearing an application should have power to award a capital sum (including a deferred capital sum and a -capital sum payable by instalments) and to make an interim award.
(Paragraphs 16.14 to 16.23. Draft Bill, clause 36.)
83. Where a cohabitation is terminated by death the surviving cohabitant 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 under a scheme of the type set out in paragraphs 16.31 to 16.36.
(Paragraphs 16.24 to 16.37. Draft Bill, clauses 37 and 38.)
84. (a) Interdicts of the type described in section 14(2) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, 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.
(b) Such interdicts for cohabitants (currently called "Matrimonial interdicts") should be renamed or described in a way which does not suggest that they are confined to married persons.
(Paragraphs 16.38 to 16.40. Draft Bill, clause 39.)
85. (a) For the avoidance of doubt, it should be made clear by statute that a cohabitant has an insurable interest in the life of his or her partner of the same type as he or she has in his or her own life.
(b) No qualifying period of cohabitation should be required for this purpose.
(Paragraph 16.41 to 16.42. Draft Bill, clause 40.)
86. (a) The benefits of the Married Women's Policies of Assurance (Scotland) Act 1880 (which enables a person to take out a life insurance policy on his or her own life for the benefit of his or her spouse in such a way that the policy is held in trust for the beneficiary as soon as it is effected) should be extended to cohabitants.
(b) No qualifying period of cohabitation should be required for this purpose.
(Paragraphs 16.43 to 16.45. Draft Bill, clause 41.)
87. A contract between cohabitants or prospective cohabitants relating to property or financial matters should not be void or unenforceable solely because it was concluded between parties in, or about to enter, this type of relationship.
(Paragraph 16.46. Draft Bill, clause 41)
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.
(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.
(Paragraphs 17.1 to 17.11. Draft Bill, clause 44 and Schedules 1 and 2.)
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.
(Paragraphs 17.12 to 17.13. Draft Bill, clause 45.)
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.
(Paragraphs 17.14 to 17.15. Draft Bill, clause 46.)
91. It should be provided that, subject to the provisions of the Maintenance Orders (Reciprocal Enforcement) Act 1972, courts in Scotland should apply the internal law of Scotland in dealing with claims for aliment.
(Paragraphs 18.1 to 18.5. Draft Bill, clause 43.)
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