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Scots family law governs the rules of family law in Scotland.

Family law includes, divorce, the legal consequences of marriage, laws relating to children and civil partnerships.

Marriage and civil partnership

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Marriage

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See also: Marriage in Scotland

There are two types of recognised marriage in Scotland, informal and formal, though both are equally valid under Scots law.

Before the Marriage (Scotland) Act 1939, Scots law, following the principles of canon law, recognised three types of informal marriage. Marriage per verba de praesenti was constituted where the parties, without any need of a witness, made a mutual declaration to take each other as husband and wife.[1] Marriage per verba de futuro subsequente copula was constituted when the parties, having agreed to marry on a future date, had sex.[2] It has not been possible to form either of these irregular marriages since 1 July 1940. Marriage by cohabitation with habit and repute was constituted when the parties agreed to live together as husband and wife and were generally reputed to be married amongst those who knew them well.[3] It has not been possible to form this type of marriage since 4 May 2006[4] but such marriages that were created before that day continue to be valid, as well as some after in certain narrow circumstances.[5][6]

Formal marriages are created under and according to the requirements of the Marriage (Scotland) Act 1977. A formal marriage may be formed through either a religious ceremony or a civil ceremony, but both must generally comply with the same procedural requirements. First, the parties must submit what is known as a "marriage notice" to the district registrar responsible for the area they intend to be married in along with birth certificates for each party.[7] The district registrar will then enter the parties' details and the proposed date of the marriage in the local marriage notice book, which gives the public an opportunity to object to the marriage.[8] In order to allow a sufficient amount of time for potential objections to be filed, there is normally a 14 day waiting period between the day the marriage notice is received and the parties can marry, although the registrar can shorten this period in exceptional circumstances.[8] After the 14 day waiting period and the registrar has determined that there are no legal impediments to the marriage, he will issue what is known as the "marriage schedule".[9] If the parties intend to have a religious ceremony, the marriage schedule acts as a licence authorising the celebrant to proceed, in which case the registrar will only issue it 7 days before the ceremony.[10] If after 3 months no marriage scheduled is issued because no religious ceremony is to occur, the registrar can require the parties to start again with a new marriage notice.[11]

Civil ceremony

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If the parties choose to have a non-religious ceremony, the district registrar will retain the marriage schedule. The ceremony is normally conducted by the district registrar at his or her office or at another government approved location in the district. The registrar may also conduct the ceremony anywhere in their district if one of the parties is suffering from a serious illness or injury.[12]

Religious ceremony

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A religious ceremony is performed by a person who has been legally authorised by the government to sanction the marriage. The marriage schedule acts as a licence legally authorising the person to sanction the marriage. A religious ceremony may only be performed by (1) a minister of the Church of Scotland,[13] (2) a priest or other marriage celebrant of a religious body prescribed by regulations made by the Secretary of State,[14] (3) another person nominated by a religious body and registered with the Registrar General of Births, Deaths and Marriages,[15] or (4) any other person over the age of 21 who is temporarily authorised by the Registrar General.[16][17] After the ceremony, the parties sign the marriage schedule, which must be returned to the district registrar within three days of the ceremony.[18]

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There are seven defined impediments to both regular and irregular marriage:

  • the parties are too closely related;[19]
  • one of the parties is already married;[20]
  • one or both of the parties is under the age of sixteen;[21]
  • one or both of the parties legally lacks capacity to understand or consent to the marriage;[22]
  • the parties are the same sex;[23]
  • one or both of the parties are domiciled in another legal jurisdiction and the party is impeded from marrying on another ground in that jurisdiction;[24] or,
  • the marriage is a sham marriage.[25]

If any of these impediments exist when the marriage is solemnised it will make the marriage void.[26] It is not possible for a person under the age of sixteen to marry, even with parental consent. A party who lacks the capacity to understand or consent to a marriage cannot marry, although legal precedent in Scotland has established that it would take a significant degree of lack of understanding or diminished intelligence before the marriage would be considered void.[27] Extreme intoxication due to alcohol or drugs has been accepted as grounds by courts in the past.[28] Other legal grounds to claim a contract is void under Scots contract law, such as error, have less scope in regards to marriage. For example, a marriage contract is an exception to the general rule in Scots law that an error held by one of the parties induced by the fraudulent misrepresentation of the other makes the contract void.[29] So, a marriage would not be void where a man married a woman because she told him she was pregnant with his child and actually she was not pregnant at all.[27] On the other hand, grounds such as force, fear and duress will normally make the marriage void.

The only recognised ground where a marriage is voidable (i.e. the marriage exists until it is made void through a court order) is the incurable impotency of the husband. The impotency must have existed at the time the marriage was solemnised and continue to exist at the time that the wife seeks to make the marriage void. Impotency in this case is distinguished from sterility and a refusal to have sex, both of which do not make the marriage voidable.[30]

In the situation that a marriage is void or voidable, any legitimately interested party (usually one of the parties to the marriage) can seek a declarator of nullity of marriage from the Court of Session, which will acknowledge that their marriage is void and, in effect, never existed. When making such a ruling the judge has the power to make awards for financial provision, like in a divorce.[31]

Civil partnership

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See also: Civil partnership in the United Kingdom

The Civil Partnership Act 2004 created the status of civil partnership across the United Kingdom. It is distinct from marriage, although the rights and obligations between them are largely the same.[citation needed] The main difference between the two is that a civil partnership must be created through a civil ceremony.

The procedural requirements to create a civil partnership are largely the same as a marriage, except that the marriage notice is replaced with a "notice of proposed civil partnership" and the marriage schedule is replaced with a "civil partnership schedule".[32] The proposed civil partnership is advertised and a 14 day waiting period for objections from the public applies.[33] Once the 14 day waiting period has elapsed and the district registrar has determined there are no legal impediment to the civil partnership, he or she will issue the civil partnership schedule. The civil ceremony to create the civil partnership may occur at the district registrar's office or any other location within the relevant district agreed between the parties and the district registrar. The ceremony, however, cannot take place in religious premises.[34] The parties, two witnesses over the age of sixteen and the district registrar will sign the civil partnership schedule and it will then be registered by the district registrar.[35]

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There are five legal impediments to forming a civil partnership in Scotland:

  • the parties are not the same sex;[36]
  • the parties are too closely related;[37]
  • one or both of the parties are under the age of sixteen;
  • one or both of the parties are married or in a civil partnership; or,
  • one or both of the parties are incapable of understanding or consenting to forming a civil partnership.[38]

If any of these impediments exist when the civil partnership is created it will be void. In Scotland, there are no grounds which will make a civil partnership voidable.[39] If a civil partnership is formed in England and Wales or Northern Ireland and the civil partnership is voidable in those jurisdictions, it will also be voidable in Scotland.[40][41]

Shared property

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Divorce and dissolution

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Divorce

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Divorce is now regulated by the Divorce (Scotland) Act 1976 as amended by the Family Law (Scotland) Act 2006, which provides two legal grounds for divorce: the, "irretrievable breakdown of the marriage" or where one party has undergone gender reassignment surgery and obtained an interim gender recognition certificate.[42] Irretrievable breakdown is proved by one of the parties to the marriage showing that one or more defined circumstances exist.[43] This eliminates the need for the judge to conduct an intimate examination of the relationship between the parties.[44] There are "fault" and "no fault" grounds provided in the Act, and the speed at which a divorce can be obtained will be determined by what circumstances are relied on in the divorce proceedings.[44] It is not possible for both parties to submit a joint petition for divorce, divorce cases must always have a person seeking the divorce (the pursuer) and a person arguing against the divorce (the defender).[44]

The circumstances that will lead to a finding by the court that there is an irretrievable breakdown of the marriage are:

  • the defender's adultery;[45]
  • behaviour of the defender that makes it unreasonable for the pursuer to live with the defender;[46]
  • not living as husband and wife for one year and there is consent to the divorce from both parties;[47] and
  • not living as husband wife for two years when one party objects.[48]

Adultery and behaviour

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If the pursuer establishes an irretrievable breakdown of the marriage on grounds of adultery or behaviour then they can obtain a divorce immediately, while the other grounds require some period of prior separation. Circumstantial evidence can be provided to support the claims of the pursuer and the case is determined "on the balance of probability" rather than "beyond a reasonable doubt". Therefore, for example, evidence of a husband staying in a hotel room with another woman for a night will likely establish adultery, even if sexual intercourse cannot be proved.[49] The pursuer cannot seek a divorce based on their own adultery[44] and the adulterous sexual intercourse committed by the defender must have been voluntary.[50] To found a divorce on the behaviour of the defender the behaviour must be such as a reasonable person could not be expected to live with the defender.[51] The behaviour can be from one event, though showing a pattern is more likely to convince the court, and it is irrelevant if the behaviour is passive or active or caused by a mental abnormality.[52] There is no exact list of what behaviour will constitute grounds and the case law is filled with different examples. The finding by the court that the defender is at "fault" for the divorce will, however, have no effect at all on the amount of financial provision awarded or arrangements regarding any children.[53]

Separation

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If the parties have not lived together as husband and wife for a period of one year and both parties consent to the divorce then this establishes an irretrievable breakdown of the marriage.[54] The defender's consent to the divorce must be granted at the court proceedings and can be withheld for any reason or no reason at all.[55] According to Stair, the defender to a divorce will often use their granting of consent as a way of bargaining favourable financial provision or arrangements concerning children.[56]

If the defender does not consent to the divorce, then the pursuer will only be able to establish an irretrievable breakdown of the marriage once the couple has not lived together as husband and wife for two years.[57]

Issuing a decree of divorce

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The court will suspend divorce proceedings if there is reason to believe that a reconciliation between the parties is possible.[58] The court can also delay issuing a decree for divorce where one of the parties will be prevented from remarrying on religious grounds and the other party is able to take steps to prevent this impediment from arising, such as through a religious annulment of the marriage.[59] Once the impediment is removed the court will then issue the divorce decree.

Dissolution

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Dissolution, the legal process by which a civil partnership is brought to an end, is regulated by the Civil Partnership Act 2004, which provides two legal grounds for dissolution: the "irretrievable breakdown of the civil partnership"[60] or where one party has undergone gender reassignment surgery and obtained an interim gender recognition certificate."[61] The grounds to establish the existence of an irretrievable breakdown of the civil partnership are the same as divorce for marriage, except for adultery. Adultery, as a legal concept, can only take place between a male and female, but if a party in a civil partnership had sexual relations with another person this would fall under the behavioural ground for dissolution.[62] The finding by the court that the defender is at "fault" for the dissolution will, however, not affect the amount of financial provision awarded or arrangements regarding any children.

As with divorce proceedings, the court will suspend dissolution proceedings where the court has reason to believe that a reconciliation between the parties is possible.[63]

Financial provision

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Cohabitation

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Children

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Legitimacy

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Parental responsibilities and rights

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Adoption

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See also

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Further reading

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  • Aitken, Bill, ed. (2009). What Has a Decade of Devolution Done for Scots Family Law?. Jordans/Family Law.
  • "European Commission Green Paper on Conflict of Laws Concerning matrimonial property regimes - The Law Society of Scotland's Response" (PDF). The Law Society of Scotland. November 2006. Retrieved 2 April 2010.

Notes

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  1. ^ Stair, Child & Family Law (Reissue), para. 531 (Online) Retrieved 23 February 2012
  2. ^ Stair, Child & Family Law (Reissue), para. 532 (Online) Retrieved 23 February 2012
  3. ^ Stair, Child & Family Law (Reissue), para. 533 (Online) Retrieved 23 February 2012
  4. ^ Family Law (Scotland) Act 2006, s. 3
  5. ^ Family Law (Scotland) Act 2006, s. 3(3)
  6. ^ Stair, Child & Family Law (Reissue), para. 534 (Online) Retrieved 23 February 2012
  7. ^ Marriage (Scotland) Act 1977, ss. 3(1) and 26(2).
  8. ^ a b Stair, Child & Family Law (Reissue), para. 525 (Online) Retrieved 23 February 2012
  9. ^ Marriage (Scotland) Act 1977, s. 6(1)
  10. ^ Marriage (Scotland) Act 1977, s. 6(4)(b)
  11. ^ Marriage (Scotland) Act 1977, s. 6(2)
  12. ^ Stair, Child & Family Law (Reissue), para. 527 (Online) Retrieved 23 February 2012
  13. ^ Marriage (Scotland) Act 1977, s. 8(1)(a)(i)
  14. ^ Marriage (Scotland) Act 1977, s. 8(1)(a)(ii)
  15. ^ Marriage (Scotland) Act 1977, s. 8(1)(a)(iii)
  16. ^ This provision is used only in exceptional circumstances. Stair cites the example of authorising a person who is a priest registered outside of Scotland to marry relatives in Scotland. (Stair, Child and Family Law (Reissue), para. 528, footnote 6 (Online) Retrieved 23 February 2012)
  17. ^ Marriage (Scotland) Act 1977, s. 8(1)(a)(iv)
  18. ^ Marriage (Scotland) Act 1977, s. 15(1)
  19. ^ For a list of the forbidden degrees of relationship, see Schedule 1 Marriage (Scotland) Act 1977
  20. ^ Marriage (Scotland) Act 1977, s. 5(4)(b)
  21. ^ Marriage (Scotland) Act 1977, s. 1(1)
  22. ^ Marriage (Scotland) Act 1977, s. 5(4)(d)
  23. ^ Marriage (Scotland) Act 1977, s. 5(4)(e)
  24. ^ Marriage (Scotland) Act 1977, s. 5(4)(f)
  25. ^ Stair, Child and Family Law (Reissue), para. 630 (Online) Retrieved 23-02-2011
  26. ^ Stair, Child and Family Law (Reissue), para. 620 (Online) Retrieved 23-02-2011
  27. ^ a b Stair, Child and Family Law (Reissue), para. 627 (Online) Retrieved 23-02-2011
  28. ^ Johnson v Brown (1823) 2 S 495
  29. ^ Lang v Lang 1921 SC 44
  30. ^ Stair, Child and Family Law (Reissue), para. 632 (Online) Retrieved 23-02-2011
  31. ^ Stair, Child and Family Law (Reissue), para. 621 (Online) Retrieved 23-02-2011
  32. ^ Stair, Child and Family Law (Reissue), para. 520C (Online) Retrieved 24 February 2012
  33. ^ Civil Partnership Act 2004, s. 92(5)(b)
  34. ^ Civil Partnership Act 2004, s. 93(3)
  35. ^ Stair, Child and Family Law (Reissue), para. 520B (Online) Retrieved 24 February 2012
  36. ^ Stair, Child and Family Law (Reissue), para. 520B (Online) Retrieved 24 February 2012
  37. ^ For a list of the forbidden degrees of relationship see Schedule 10 Civil Partnership Act 2004
  38. ^ Civil Partnership Act 2004, s. 86(1)
  39. ^ Stair, Child and Family Law (Reissue), para. 642B (Online) Retrieved 24 February 2012
  40. ^ Civil Partnership Act 2004, ss. 124(1), 124(2)
  41. ^ For a list of grounds which would make a civil partnership voidable in England and Wales see Civil Partnership Act 2004, s. 50(1)(a)-(e); for Northern Ireland see s. 174(1)(a)-(e)
  42. ^ Divorce (Scotland) Act 1976, s. 1(1)
  43. ^ Divorce (Scotland) Act, s. 1(2)
  44. ^ a b c d Stair, Child and Family Law (Reissue), para. 600 (Online) Retrieved 2012-02-29
  45. ^ Divorce (Scotland) Act 1976, s. 1(2)(a)
  46. ^ Divorce (Scotland) Act 1976, s. 1(2)(b)
  47. ^ Divorce (Scotland) Act 1976, s. 1(2)(d)
  48. ^ Divorce (Scotland) Act 1976, 1(2)(e)
  49. ^ Stair, Child and Family Law (Reissue), para. 603 (Online) Retrieved 2012-02-29
  50. ^ Stewart v Stewart 1914 SLT 310
  51. ^ Stair, Child and Family Law (Reissue), para. 606 (Online) Retrieved 2012-02-29
  52. ^ McMann v McMann 1980 SLT (Notes) 20, OH
  53. ^ Stair, Child and Family Law (Reissue), para. 607 (Online) Retrieved 2012-02-29
  54. ^ Divorce (Scotland) Act 1976, s. 1(2)(d)
  55. ^ Boyle v Boyle 1977 SLT (Notes) 69
  56. ^ Stair, Child and Family Law (Reissue), para. 614 (Online) Retrieved 2012-02-29
  57. ^ Divorce (Scotland) Act 1976, s. 1(2)(e)
  58. ^ Divorce (Scotland) Act 1976, s. 2(1)
  59. ^ Divorce (Scotland) Act 1976, ss. 3A(1)(a), (b)(i) and (2)
  60. ^ Civil Partnership Act 2004, s. 117(3)
  61. ^ Civil Partnership Act 2004, s. 117(4)
  62. ^ Stair, Child and Family Law (Reissue), para. 603 (Online) Retrieved 2012-02-29
  63. ^ Civil Partnership Act 2004, s. 118(1)

References

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Academic

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Legislation

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  • Marriage (Scotland) Act 1977 (c. 15)
  • Civil Partnership Act 2004 (c. 33)
  • Family Law (Scotland) Act 2006 (asp 2)
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