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1. Divorce (Scotland) Act 1976, ssl and 4.
2. Conjugal Rights (Scotland) Amendment Act 1861 s6.
3. Ibid.
4. See now the Family Law (Scotland) Act 1985, s24.
5. Scot Law Com No 124 (1990) para 7.33.
6. See Symon (ed), Housing and Divorce (Centre for Housing Research, Glasgow University, Studies in Housing No. 4, 1990) p86.
7. S20(2)(b)(ii).
8. Family Law (Scotland) Act 1985, s2.
9. Housing (Scotland) Act 1987, s20(2)(b)(ii).
10. The action for adherence was abolished by the Law Reform (Husband and Wife) (Scotland) Act 1984 s2(1). Even before that a decree for adherence would not be enforced. See Hastings v Hastings 1941 SLT 323 at p325.
11. Divorce (Scotland) Act 1976 sl(2)(c). In our report on Reform of the Ground for Divorce (Scot Law Com No 116, 1989) we recommended the abolition of divorce for desertion, which is now little used.
12. Platts, The Use of Judicial Separation (Scottish Office, Central Research Unit, 1992) Chap 2, para 2 ("Platts").
13. Platts, Chap 2, para.2.
14. Platts, Chap 4,.para 6. "Only one third of actions in the sample studied (all of which were raised in 1989) had proceeded to decree by the time of the data collection exercise (summer 1991)". See also Chap 2, para 19. "Court staff suggested that it was unlikely that any further action would take place in many of the 'ongoing' cases".
15. Platts, Chap 3, para 41.
16. Platts, Chap 4, para 6.
17. Platts, Chap 2, para 3.
18. Platts, Chap 2, para 3.
19. Platts, Chap Z, para 3.
20. Platts, Chap 2, paras 7, 11 and 12.
21. Platts, Chap 2, paras 14 to 18.
22. Platts, Chap 2, para 22.
23. Platts, Chap 2, para 9. In 80% of the small sample studied there were dependent children.
24. See the quotations, dating from 1889, in Maidment, Judicial Separation (1982) pp73-75.
25. As from 1 Jan 1974. See Schmidt "The Scandinavian Law of Procedure in Matrimonial Causes" in The Resolution of Family Conflict (Eekelaar & Katz, eds, 1984).
26. Family Law Act 1975, s8(2).
27 Matrimonial Causes Act 1989, s35.
28. This was why the Royal Commission on Divorce and Matrimonial Causes of 1912 (the Gorell Commission) recommended the retention of judicial separation in spite of criticising it as "an unnatural and unsatisfactory remedy". (Cd 6478). We have been informed, however, that the present position of the Roman Catholic church is that, while finding any marriage breakdown regrettable, it accepts that civil divorce proceedings may be a necessary and proper method of dealing with property matters., financial provision, the future of the children and so forth.
29. Divorce (Scotland) Act 1976, s4.
30. Platts, Chap 2 . para 11. In the sample of 45 cases examined there was only one on the ground of desertion and one on the ground of separation.
31. In our report on Succession (Scot Law Com No 124, 1990, paras 7.28 to 7.33) we recommended that separation decrees obtained after the commencement of implementing legislation should have no effect on succession.
32. Platts, The Use of Judicial Separation (Scottish Office, Central Research Unit, 1992).
33. After 5 years of separation the other spouse could raise an action of divorce at any time, so "as long as possible" might mean five years at most if the other spouse wanted a divorce.
34. Again this might mean five years at most.
35. Under the existing law the power of arrest ceases to have effect on divorce. We have recommended above (para 11.39) that this should be changed.
36. Platts, Chap 3, paras 5 and 33.
37. Platts, Chap 3, para 35.
38. Platts, Chap 3, para 35.
39. Platts, Chap 3, para 20.
40. Platts, Chap 3, para 24.
41. Platts; Chap 3, para 22.
42. Platts, Chap 4, para 7.
43. Platts, Chap 3, para 30.
44. C MacLure v MacLure 1911 SC 200; Millar v Millar 1940 SC 56.
45. See the obiter dicta in Hislop v Hislop (1878) Guthrie's Select Cases (2nd series) 205 at 207.
46. This was one of the reasons why the more effective remedies in the 1981 Act were considered necessary. See the consultative memorandum on Occupancy Rights in the Matrimonial Home and Domestic Violence (Scot Law Corn Memo 41, 1978) Vol 2 para 2.64.
"While it is true that a decree of separation ... is in form a judicial order requiring one spouse to live apart from the other, and while it is also frequently said that the decree is granted for the protection of the pursuer, the decree does not in fact adequately protect the pursuer. If the defender attempts to resume cohabitation, the attempt is not visited by the court with any sanction for contempt of the court's decree. In truth, the decree is a mere declarator that the pursuer is entitled to live apart from the, defender, and the main legal effect is to entitle the pursuer to live apart without desertion ......
47. Matrimonial Homes (Family Protection) (Scotland) Act 1981, sl(l).
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