Scottish Law Commission (Reports)

The Effects of Cohabitation in Private Law, ^[5] and Parental Responsibilities and Rights, Guardianship and the Administration of Children's Property.

We have also been greatly assisted by the results of two public opinion surveys which were arranged for us by the Central Research Unit of the Scottish Office and carried out by System Three Scotland. One was on attitudes towards giving certain legal effects to cohabitation as husband and wife. The other was on attitudes towards the corporal punishment of children by their parents. The results are referred to later in the relevant parts of this report. We were also assisted by research into the use made of judicial separation in Scotland which was carried out for us by the Central Research Unit. This too is referred to in more detail later.

1.4

Representatives of the Commission participated in two public meetings on the proposals on cohabitation. We are grateful to the Faculty of Law, Glasgow University and the Legal Services Agency, Glasgow for organising these meetings. We have also had discussions with a number of organisations who wished to elaborate on their written submissions or explore the thinking behind some of our provisional proposals. Again we found these discussions useful and constructive.

Scope of Report

1.5

Parts 11 to VI of the report are concerned with parental responsibilities and rights, the guardianship of children and the administration of children's property. These parts are based on Discussion Paper No. 88. They address such questions as whether the statute law should place more emphasis on parental responsibilities rather than parental rights; whether both parents should have parental responsibilities and rights, whether or not they are married to each other; whether the concepts of custody and access should be replaced, with a view to stressing that both parents remain parents even if they no longer live together; how far the child's own views should be taken into account when decisions affecting him or her are being made; and whether the parental right to administer corporal punishment should be retained as it is, restricted or abolished. Parts VII to XV deal with aspects of the law on marriage and divorce, which were discussed in Discussion Paper No 85. This section of the report addresses such questions as whether marriage by cohabitation with habit and repute should be retained, reformed or abolished; whether the law needs the concept of the voidable marriage; whether the remedy of judicial separation has outlived its usefulness and become a harmful anachronism; whether anything can be done to prevent occupancy rights in the matrimonial home from causing unnecessary expense and inconvenience in conveyancing transactions; and whether the protection afforded by a matrimonial interdict should be extended and should continue after divorce. Choice of law rules on the validity of marriages with some foreign element (for example, marriage abroad, one party domiciled abroad) are also considered, as are choice of law rules on the legal effects of marriage. Part XVI deals with the legal effects of cohabitation in private law. It follows on from Discussion Paper No 86. It addresses such questions as whether a cohabitant who has contributed to an increase in the other's wealth during the cohabitation (for example, by helping to build up a business) should have a statutory claim to some financial provision on the termination of the relationship; and whether a cohabitant should have some claim against the other's estate if the cohabitation is ended by the other's death. The legality of cohabitation contracts is also considered. Part XVII deals with the abolition of the status of illegitimacy which has now become legally insignificant and socially offensive. Part XVIII deals with one aspect of the law of aliment which was left untouched when this branch of the law was codified in 1985, namely the choice of the law governing the alimentary obligation when there is a foreign element in the case, such as the fact that one of the parties is domiciled abroad. Part XIX considers how the draft Bill appended to this report relates to other current developments in Scottish child and family law and suggests one way in which different areas of child and family law, public and private, could be brought together in a comprehensive code. Part XX contains a summary of recommendations. The draft Bill in Appendix A extends to 48 clauses, but it repeals 50 complete sections of existing Acts and parts of many more.

Corporal punishment

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Introduction. Under the existing law a parent has a right to administer reasonable corporal punishment to his or her child. Such punishment, if within the bounds of what a court considers reasonable, will not expose the parent to liability to damages for assault or to a criminal conviction for assault. Certain other people, such as teachers, have a similar right of reasonable chastisement at common law .

For some time now there has been a body of opinion in favour of abolishing, or at least restricting, the parental right of corporal punishment. Several European countries have passed legislation purporting to remove or severely restrict the right.

"Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person having the lawful control or charge of a child or young person to administer punishment to him."

The parental right of reasonable chastisement is also recognised in case law, although its limits are not always clear. ^[2]Research in England in the 1970's showed that smacking of children was extremely common in all social classes. ^[3]

Given the level of public and Parliamentary interest in this subject, and the developments in other countries, a discussion paper on parental rights which did not address the issue of the parental right to administer reasonable corporal punishment would have been incomplete. We were well aware, however, that this was a controversial and emotive issue. We therefore set out in the discussion paper, in deliberately neutral terms, the arguments which might be made for retaining or abolishing the right. Without expressing any preliminary view ourselves we invited views on the question-

"Should the parent's right to administer reasonable corporal punishment to his or her child be retained or abolished?"

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Arguments for and against. In the discussion paper we suggested that the following arguments might be put forward for retaining a parent's right to administer reasonable corporal punishment. We deliberately refrained from expressing any view on their weight.

(a) If parents wish to bring up their children in this way, and if there is no danger of lasting harm, the State ought not to interfere.

(b) The fact that a minority of parents go beyond what is reasonable is no reason why the remainder of parents should be treated as criminals if they so much as slap a child on the hand.

(c) Children have to be taught standards of behaviour or not to do dangerous things. Sometimes, if a child is too young to be reasoned with, physical punishment may be the only "language" he or she will understand.

(d) Case law makes it clear that punishment must not go beyond what is reasonable. This provides a safeguard against abuse and provides a test which is capable of reflecting changes in knowledge and in general perceptions of what is acceptable.

(e) Even if it became unlawful for a parent to use corporal punishment on his or her child such a law would be unenforceable and would be broken on a very wide scale.

(f) Outlawing something which nearly all parents do from time to time will not stop those who really are doing their children harm and may prevent potential child abusers from seeking professional help -before its too late.

(g) The question has recently been debated in Parliament, in relation to the law of England and Wales, and the debates do not suggest that there is majority support for abolition.

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(a) A child, like any other individual, has a right not to be assaulted.

(b) Even although it is unlikely that many prosecutions would result from parents hitting their children in a way which would be lawful under the existing law, the law should attempt to encourage restraint. Even a law which was difficult to enforce might have an effect on conduct and might thereby reduce abuse and make easier the conviction of abusers.

(c) The existing requirement of "reasonableness" is an inadequate safeguard. Different cultures adhere to different values and so long as corporal punishment is allowed to continue there will be no consensus on what is reasonable.

(d) If all corporal punishment is made unlawful there is less chance of violent abuse taking place. Parents will know where the line is drawn. There will be less chance of conduct which begins as chastisement ending up as violent abuse because a parent does not know his or her own strength or because the initial chastisement does not produce the desired response.

(e) We should follow the lead taken by Sweden, Finland, Denmark, Norway and Austria. An American assessment of the Swedish legislation reported that: ^[10]

"The 1979 law is now taken for granted in Sweden. Whereas in 1981 parents reported 'thinking twice' before using any physical punishment, in 1988 parents simply say they do not use it. "

It does not appear that State intervention in Swedish family life has increased as a result of the legislation.^[11]

(f) The right to administer corporal punishment to pupils in state schools has been abolished,^[12] and if that is right as a matter of principle it is difficult to see why it is not also right to abolish corporal punishment in the home.

(g) Some local authorities already prohibit all corporal punishment of foster children by local authority foster parents. If this is right for foster children why is it not also right for a parent's own children?

(h) The Committee of Ministers of the Council of Europe has recommended that member states should "review their legislation on the power to punish children in order to limit or indeed prohibit corporal punishment, even if violation of such a prohibition does not necessarily entail a criminal penalty".^[13]

(i) The United Nations Convention on the Rights of the Child, adopted by the General Assembly in November 1989, requires that States must take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation while in the care of parents, legal guardians or any other person who has the care of. the child.^[14]

Results of consultation in general. We received over a hundred submissions on this issue, many of them very substantial and carefully argued. There was, as might be expected, a division of opinion. Of those who expressed a clear view one way or the other 57 supported retention and 35 supported abolition but there were many qualified responses (e.g. favouring abolition for civil law but not criminal law purposes; favouring a clarification or restriction of the right) and, in any event, on a matter of this kind it is the weight of the evidence and arguments which matters rather than the number of submissions one way or the other.

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method

Views of psychologists. The British Psychological Society recognised that the issue of corporal punishment was a complex one on which it was difficult to make short definitive statements. However, it was of the view that

"As a broad general principle, punishment, including corporal punishment, is seen as an inefficient method of modifying behaviour, being situation-specific and of short-term effect, and with a possibility of providing undesirable side effects of both fear and learned imitative behaviour. More socially desirable attitudes would be encouraged by alternative methods of managing behaviour, such as withdrawal of privileges and the rewarding of more desirable alternatives. "

The Society suggested that, as in the case of corporal punishment in schools, the burden of proof that corporal punishment of children was necessary rested with those who advocated its retention.

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Dr Penelope Leach, in a very full and helpful submission, summarised a review of the literature by saying that,

"On the whole, then, the findings of experimental and applied human psychology provide less and less pragmatic support for physical punishment, or indeed for any punishment other than absence of the positive rewards that psychologists of all persuasions recognise as vital to learning. "

She pointed out that the sort of moderate physical punishment permitted by the law and practised by many parents was particularly unlikely to be effective.

"The scientific evidence suggests that if physical punishment is to be effective in modifying behaviour, it must induce a greater intensity of pain than would be acceptable to most parents. "

She referred to evidence from the social sciences that physical punishments tend to escalate over time and suggested that this could be accounted for by findings from research psychology that if punishment started by being mild, far more intense punishment was then required to suppress unwanted behaviour than if punishment was originally introduced at a reasonably intense level. On the important question whether "moderate and reasonable" physical punishment harmed children, she pointed out that there was no consensus among professionals as to what constituted harm. On one view any physical damage (as indicated, for example, by visible bruising) was harm. There was also a danger of serious injuries as a result of punishment which was intended to be moderate and reasonable but went wrong-because, for example, of misplaced blows that landed on the head or caused a child to fall, or because of a parent's ignorance of the vulnerability of the immature body of a small child. However, she observed that some experts considered that there was no convincing evidence of serious, lasting harm to the recipients of "moderate and reasonable" punishment. So far as emotional harm was concerned it was exceedingly difficult to establish a causal link between any particular experience in childhood and any particular characteristic in later life. However, there was

"an extensive literature associating parental physical punishment-especially its juxtaposition of love and pain, anger and submission-with a wide range of personality disorders and neuroses in adult life."

There was also an extensive body of research establishing a positive association between all levels of physical punishment and increased aggression in the children who received it and the adolescents and adults they became. Children had a tendency to model their behaviour on that of their parents. So it was not surprising that physical punishment, which would often be perceived by the child as aggression, had this effect. Dr Leach explained the mechanisms (including a need on the part of children to justify what their parents did) whereby attitudes favouring corporal punishment were transmitted from generation to generation. She referred to research indicating the value and effectiveness of firm, non-punitive discipline. Her conclusion was that a legal change removing the parental right to administer reasonable corporal punishment would be beneficial, as well as morally right.

"Its likely immediate effects would be to improve the childhood experiences and relationships of many. individuals; stimulate public discussion of parental responsibilities; remove overt public pressure on parents to hit their children; ease the work of child protection agencies; facilitate education in positive methods of discipline amongst parents and future parents and raise the social status of children. A composite longer-term effect could confidently be expected to include reductions in family-violence (including physical child abuse), bullying and disruptive behaviour in schools, juvenile delinquency and violent adult crime."

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Dr Dorothy Rowe in her comments drew on over 25 years of experience as a clinical psychologist. She was in favour of a law forbidding parents to beat their children. She explained the negative and harmful conclusions which people actually drew from the experience of being beaten but also explained why a common response at the opinion poll level was "I was beaten as a child and it never did me any harm". This was because (a) people did not want to be publicly disloyal to their parents (b) they did not want to suggest that they had been harmed and thus reveal vulnerability and (c) if they were parents themselves they did not wish to raise questions about how they treated their own children. The responses would often be very different in private conversations with a trusted person at a deeper level. Dr Rowe's view was that none of the conclusions which people commonly drew from being beaten (eg "I am bad and unacceptable", "I have been treated unjustly", "I am afraid of the adult who beat me", "I must become indifferent to the pain") could ever promote health and happiness and harmonious relationships with other people. She concluded that

"The greatest harm which beating does is to prevent the person being beaten from recognising the harm which has been done to him. A law forbidding parents to beat their children may not prevent all parents from doing so but it would go a long way to helping us all recognise the harm which corporal punishment does."

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Professor Schaffer, of the Department of Psychology at the University of Strathclyde, on the other hand, did not support abolition of the parental right to administer reasonable corporal punishment. He said that the effects of physical punishment depended on a large number of associated conditions-including the nature of the relationship between parent and child.

"In particular, it has been shown that punishment from a basically affectionate parent is more likely to produce the desired result than punishment from a cold or hostile parent. There is little evidence that punishment, in the context of a good relationship, creates maladjustment; when it occurs in the context of an unsatisfactory relationship any undesirable consequences are likely to be due to that relationship generally rather than to any one aspect of it such as punishment. "

Much depended also on whether punishment was accompanied by explanation, and on whether the child perceived it as just. Much also depended on the timing and intensity of the punishment and on the consistency with which the parent enforced rules. The characteristics of the child were also important:

"relatively non-aggressive children are likely to desist from the undesirable behaviour while aggressive children may persist in or even increase such behaviour when punished."

Professor Schaffer referred to the undesirable side effects which physical punishment might produce-such as the provision of an aggressive role model, the undermining of positive aspects of the parent-child relationship and the creation of an undesirable emotional atmosphere in the family-but said that none of these side effects was inevitable. They depended on the various conditions already mentioned.

"As far as long-term effects are concerned, there is a well-established association between parental use of physical punishment and children's aggression or delinquency. However, this applies primarily when punishment is frequent, harsh and erratic; this is likely to occur in particular types of families characterised by a general atmosphere of conflict and poor relationships. There is, in other words, no consistent evidence that physical punishment per se leads to increased child violence."

There was also the possibility that very aggressive children elicited more punishment from parents rather than the other way round. Professor Schaffer's general conclusion was as follows.

"Research provides little evidence that physical punishment per se leads to harmful consequences. It may do so under certain circumstances, but it appears to be those circumstances (with particular reference to conflict in the home, poor relationships and erratic child rearing practices) that are primarily responsible for ill-effects. Given the fact that the vast majority of parents believe in the use of physical punishment and, moreover, seem to have no difficulty in drawing the line between reasonable and excessive use, there appears to be no reason to abolish their right to discipline their children in this manner. On the contrary, such a measure aimed at one specific aspect of the parent-child relationship may draw attention away from the real need, i.e. to provide the much more broadly based programme of parent support and education that is required if one is to improve the lot of children in the long term."

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Views of legal commentators. Most of the legal respondents to the discussion paper, including the Court of Session judges, the Sheriffs' Association, the Law Society of Scotland, the Procurators Fiscal Society and the Family Law Association, thought that the parental right should be retained or at least expressed doubts about the wisdom and practicability of abolition. A recurring concern was that abolition would be unenforceable. The law would be widely disregarded and would fall into disrepute. Some legal respondents suggested, however, that reform was necessary. The Association of Reporters to Children's Panels thought that, at the very least, clarification of the scope of reasonable chastisement was required. The Scottish Child Law Centre, in a submission which dealt one by one with the various arguments for retention of the parental right, recommended abolition of the parental right to administer corporal punishment. They considered that this would help to shape public attitudes. They too thought that there was some confusion in the public mind, pointing out that the decision in one case,

We received a particularly cogent submission from Professor Michael Freeman, of the Faculty of Laws, University College, London. He argued that if assault was wrong, the age of the person assaulted and his or her relationship to the assaulter could not excuse or mitigate the offence. He suggested that if the law did not presently allow the hitting of children and a proposal were to be presented to allow parents to do so it would be objected to on moral grounds. He said that opinions had already shifted greatly on this issue in one generation.

"Any examination of the relevant cases will show that standards and values vary so wildly that no rule of thumb definition could be extracted . . . ".

Citizens Advice Scotland strongly supported abolition of all corporal punishment. They thought that children should be considered as people and citizens in their own right.

"Most of my contemporaries were hit with implements by their parents but very few would contemplate doing the same.

The right to chastise children might, like the right to chastise a wife, fall into disrepute and obsolescence but it would be better to declare it wrong (and unlawful) now. The present law was, in any event, so imprecise and uncertain in its application as to be unjust parents (as well as children). Moreover much child abuse was corporal punishment gone wrong. Professor Freeman quoted an American study which had concluded that well over half of all instances of child abuse appeared to have developed out of disciplinary action taken by the parent. He then reviewed the evidence (which we have already mentioned in summarising the responses of psychologists to our discussion paper) on the relative ineffectiveness of corporal punishment.

"Its very failure tends to lead to more chastisement and to the application of more force and if this fails yet more."

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Other academic legal commentators also supported abolition. Jonathan Montgomery of the Faculty of Law of the University of Southampton regretted that the English Children Act had left the content of parental responsibility and rights to the common law. He thought that there had to be clear guidance and that in the case of corporal punishment the reasonableness test was too imprecise. The limits could only be established by court action. He suggested that outright prohibition was the only way of giving clear guidance. Elaine Sutherland of the Department of Private Law at the University of Glasgow also favoured abolition. She thought it was highly anomalous that children alone should be exposed to corporal punishment.

"The reasons why children are singled out for this form of treatment probably lie in our economic, social and religious past and have no validity in a society which acknowledges children as people with rights. "

Andrew Bainham of the School of Law, University of East Anglia suggested that corporal punishment should be ignored in legislation.

"While 1 think it might be unrealistic to outlaw it in legislation 1 do not approve of its positive statutory endorsement.

We read this as a suggestion that section 12(7) of the 1937 Act should be repealed. Professor Bissett-Johngon of the Department of Law, University of Dundee did not favour the complete outlawing of corporal punishment but did think that it might be possible for the law to be more precise about when chastisement became unreasonable.

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Views of churches and religious bodies. The Free Presbyterian Church of Scotland was in favour of retaining the parental right of corporal punishment. They said that

"the Scriptures concur that corporal punishment is a valid form of parental discipline when used at the correct time, with due restraint. "

They claimed that to remove the defence of reasonable chastisement from parents and others was

"certain to leave a legacy of ill-disciplined young people .

The Glasgow Presbytery of the Free Church of Scotland also favoured retention. They argued that smacking of children in the ordinary course of discipline was very different from child abuse; that any restriction would be impossible to enforce; that a major section of society would be criminalised, including "many Christian parents who hold it their duty under God to bring up their children making responsible use of corporal punishment"; and that a change in the law would remove some of the sanctions that parents might have recourse to in order to correct the behaviour of their children. CARE (Christian Action Research and Education) in Scotland also favoured retention for essentially the same reasons. They said

"We support the limited use of physical punishment in a context of love and affirmation of the individual child." (Emphasis in original).

We did not receive comments from any other major churches or religious bodies, although several individual respondents referred to what they claimed was scriptural backing for the use of corporal punishment.

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Views of bodies concerned with social work. The Convention of Scottish Local Authorities (COSLA) did not take a formal view on retention or abolition of the parental right but considered that there should be no corporal punishment of children by non-parents.

"Most social work authorities incorporate within their own operational procedures clear statements excluding the use of physical chastisement of children in public care and increasingly this approach is being extended in guidance to child minders. It is therefore recommended that a clear national lead should be given for all children who are being looked after by a person or agency other than their own parent, regardless of whether they are in public care, and that lead should exclude the use of physical chastisement."

Grampian Regional Council's Department of Social Work favoured abolition of the parental right. So did the National Association of Social Workers in Education.

"As Social Workers we constantly see children who are suffering at the hands of their parents. It is very difficult to work with parents to get them to desist from hitting their children when they can assert that they have the right. It becomes a matter of degree which is open to debate and personal interpretation. "

The Association referred to the common experience of punishment escalating in severity when what was felt to be reasonable punishment failed to alter the child's behaviour.

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Views of other societies and agencies. The British Agencies for Adoption and Fostering did not find the existing case law sufficiently clear about what was a "reasonable" level of chastisement.

"The Sheriffs and Judges hold different views about this and the public are consequently confused."

The general view of most BAAF members was in favour of abolition of corporal punishment of children but they saw difficulty in finding an appropriate strategy to achieve this end. Childwatch recommended abolition and made the point that the line between smacking and physical abuse had never been more fragile. The National Childminding Association also favoured abolition. They mentioned that a resolution to ban physical punishment of minded children had been passed at a recent annual general meeting of the Association by over 4000 votes to 8.

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The Royal Scottish Society for the Prevention of Cruelty to Children (RSSPCC) gave a qualified response. While not approving of the use of corporal punishment as a means of child discipline, they thought that an abrupt abolition would cause great anxiety for parents and could be counter-productive, with the focus solely on the legal implications rather than on the promotion of the best parent and child relationships. They did not therefore favour making all corporal punishment of children a criminal offence but they did urge the repeal of section 12(7) of the Children and Young Persons (Scotland) Act 1937, which they regarded as a harmful anachronism. The RSSPCC, had held a conference and seminar on the issue and had issued a questionnaire to experienced staff members which elicited 44 completed responses.

"What is apparent from the questionnaire is that in their work fieldwork staff frequently and regularly come across children who are physically punished. From experience staff know that cases of child abuse often start as physical punishment and escalate. And questionnaire results indicate that in a significant number of cases carried by staff in the last year where children are known to be physically punished, staff have had concerns that this might develop into abuse. It is clear that a significant amount of fieldwork staff time in the RSSPCC concerns child management, i. e. working with parents to effect changes in child rearing practice, diverting them away from, and suggesting alternatives to, hitting children or otherwise treating them in humiliating or degrading ways.

Almost three quarters of the respondents to the staff questionnaire thought that the RSSPCC should openly adopt a policy that corporal punishment was wrong. A slight majority, however, expressed concern that if physical punishment of children by parents were banned, families who practised physical punishment would become less open with staff members about issues relating to child care. There was an almost unanimous view that the RSSPCC should be at the forefront of an educational campaign to help parents to look at alternative ways to discipline children. The RSSPCC recognised that the responses related to families who were experiencing some degree of difficulty and took this into account in drawing up their final, qualified, comments to us.

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We received a very helpful submission, and supporting literature, from EPOCH (End Physical Punishment of Children) which has campaigned vigorously since 1989 to protect children and young people in the United Kingdom from physical punishment and other humiliating and degrading treatment. EPOCH pointed out the highly anomalous nature in our society, which generally condemns violence and bullying, of the parental right to use physical punishment.

"[Physical punishment of children now remains the only lawful inter-personal violence in the family home. Over the last century society has accepted a considerable degree of intrusion by the law into the home to deter or prevent all other forms of inter-personal violence.

They emphasised the point of principle-that children have a right to equal protection of their physical integrity and also other connected justifications for abolishing the parental right, namely

to reduce child abuse;

to reduce other forms of inter-personal violence by removing the current parental modelling of violent ways of resolving conflicts;

to reduce 'accidental injuries' to children arising from reasonable physical punishment; to fulfil international commitments.

EPOCH answered the various arguments for retaining the parental right which we had set out (along with arguments the other way) in the discussion paper. On the argument that, if there is no danger of lasting harm, the State ought not to intervene they observed that the State was under an obligation to protect the physical integrity of all its citizens and that the European Commission on Human Rights had declared inadmissible an application by a group of Swedish parents alleging that the Swedish law of 1979 breached their right to privacy and family life.^[17] They observed also that there was ample evidence that

"current acceptance of physical punishment does carry with it the danger of lasting harm".

On the argument that the excesses of some parents were not a reason for treating the remainder as criminals if they so much as slap a child on the hand they pointed out that this ignored the point of principle of the child's right and that, in those countries which had abolished the parental right, it seemed that in practice parents had not been prosecuted. In any event, as will be seen later, EPOCH was not advocating a change in the criminal law. On the argument that physical punishment might be necessary to control the behaviour of children who are too young to be reasoned with, they accepted the need for physical intervention ("grabbing the child running towards the road") but not the need for smacking. There were other, more positive, ways of encouraging good behaviour. On the argument that existing case law provided a safeguard against abuse and a flexible standard capable of changing as knowledge and perceptions changed, they argued that the existing definition was subjective and that the parenting public could not be expected to be "finely tuned" to the detail of judicial decisions on such matters. There was already enough relevant knowledge to justify abolition. On the argument that a law abolishing the parental right would be broken on a very wide scale and would be unenforceable, they commented that all legislation on behaviour within the family was difficult to enforce but that that was not a reason for not having it. Even laws which were difficult to enforce could influence behaviour.

"The evidence from the other European countries which have banned physical punishment is that such reforms do have a dramatic effect on attitudes and practice."

On the argument that outlawing all physical punishment would not stop those parents who really are doing their children harm and might prevent potential abusers from seeking help before it was too late, EPOCH referred to the danger of parents using escalating levels of force towards children who refuse to modify their behaviour. They referred to evidence that many cases of serious abuse started as "ordinary" punishment. They did not accept that potential abusers would seek help later.

"On the contrary, as there will be an earlier awareness that physical punishment is no longer regarded as normal or acceptable, they may well seek help earlier. An acknowledgement in the law that no physical punishment is acceptable would enable health visitors and child protection workers to promote alternatives from the beginning of their relationship with parents. Many have told us that the current situation inhibits them from actively discouraging physical punishment in its early stages, rendering any discussion of the issue a matter of their personal opinion. In any case this argument would not be used in any other context. No-one would support repealing the legal framework intended to protect women from male violence because of the possibility that perpetrators will not seek help. ".

EPOCH were not impressed either by the fact that recent Parliamentary debates in relation to the law of England and Wales had suggested that there was not majority support for reform. In the case of many social reforms majority support followed reform. There was evidence that this had been the case in some of the countries which had banned physical punishment. In any event there was reason to believe that public opinion on this issue was changing. More than 30 major child welfare and professional groups had considered the issue and supported EPOCH's campaign. A Gallup Poll commissioned by EPOCH in late 1989 found that, although 75% of the sample "believed in" physical punishment, this reduced to 59% of those aged 16-24. The poll also found that over 90% of respondents agreed with the statements that "Parents should never smack babies under a year old" and that "Parents should never hit their children with belts, sticks, slippers or other implements". The legal reform which EPOCH recommended was

(a) the repeal of section 12(7) of the Children and Young Persons (Scotland) Act 1937, and

(b) the provision of a remedy in civil law for children aggrieved by physical punishment.

They did not recommend criminalising parents who used moderate and reasonable corporal punishment of a type permitted by the present law. There were pragmatic and, practical reasons for this. To criminalise "ordinary" physical punishment would provoke much unnecessary opposition. Prosecution of parents would be likely to affect children adversely. The idea of having only a civil sanction followed the example of the abolition of corporal punishment in state schools by section 48 of the Education (No. 2) Act 1986. EPOCH also suggested that any reform should apply to non-parents having control of children and should protect all children in all settings.

A number of other organisations submitted comments supporting abolition of corporal punishment of children, sometimes only for civil law purposes.

Views of individual respondents. Most of the individual members of the public who wrote to us favoured retention of the parental right to administer reasonable corporal punishment. Common arguments were

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^[20]

(a) a law abolishing the parental right could not be enforced;

(b) careful administration of ordinary corporal punishment did not do a child any harm;

(c) abolition would infringe a parent's rights under the European Convention on Human Rights;

(d) corporal punishment of children was approved of by the Bible;

(e) abolition would undermine family life.

Many of those favouring retention made it clear that they thought there was a clear difference between physical abuse and ordinary physical punishment by a loving parent.

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Assessment of arguments. The question with which we are faced is a difficult question of policy. We do not believe that there is any short cut to an answer based on children's rights. Children's rights (for example, to liberty and freedom of movement) can, within certain limits, be curtailed by reference to the rights and duties of parents which in turn exist primarily for the protection and proper development of the children. A parent can lawfully confine his or her small child in a playpen in circumstances in which one private citizen could not lawfully confine another adult in a wooden cage. Recognition that children are individuals with certain fundamental rights does not necessarily mean that they are individuals who must have precisely the same rights in relation to those who are responsible for their care, protection and proper upbringing as one adult with full legal capacity has in relation to another. This is not to deny the force of the argument that, as a matter of policy, a child's interest in not being hit by others should be taken fully into account and given the fullest respect.

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We do not believe either that there is any short cut to an answer based on parental rights. Parental rights are not absolute. They are subject to regulation by the state, which already sets limits on the type of punishment which can be administered. The question at issue is simply whether these limits ought to be adjusted. This is not to deny the force of the argument that the state should be reluctant to intervene unnecessarily in the way parents bring up their children.

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International obligations do not seem to us to provide a ready made answer. Like the laws of individual countries they have to balance children's rights against parental rights and responsibilities. The European Convention for the Protection of Human Rights and Fundamental Freedoms provides in article 3 that no-one shall be subjected to torture or inhuman or degrading treatment or punishment

So far as arguments of fact and expediency are concerned, we have not been provided with any reliable evidence that children suffer significant harm from being subjected to the occasional carefully controlled smack in the context of a good parent and child relationship. We refer to the comments by Professor Schaffer which we have summarised above.

"No person shall be denied the right to education. In exercise of any functions which it assumes in relation to education and teaching, the State shall respect the right of parents to. ensure such education and teaching in accordance with their own religious and philosophical convictions."

This article does not seem to us to be relevant to family law reform. It relates to education and teaching. Even if it were relevant we do not think that it would give parents a licence to indulge in any practices they wished in relation to their children on the ground that those practices were in accordance with their own religious and philosophical convictions. The United Nations Convention on the Rights of the Child (which has now been ratified by the United Kingdom) obliges states who are parties to it to

"take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or 'any other person who has care of the child. ^[24]

This is a valuable and important provision, to which a number of our respondents referred. However, it is by no means clear that an ordinary smack, which causes no injury, would come within the category of violence, abuse or ^[25] maltreatment. Certainly, many of the people who wrote to us would hotly deny that this was so. The question of when physical contact, even physical contact intended to cause temporary pain, becomes physical violence is, in our view, a question of degree, just as is the question of when words, even words intended to cause temporary unhappiness, become mental violence. The Convention does not, it seems to us, outlaw an ordinary smack any more than it outlaws an ordinary scolding. In any event a state's obligation under the Convention is only to take all "appropriate" legislative and other measures.^[26] That introduces a margin for taking into account such questions as the likely effectiveness or consequences of any particular measure. A state might well conclude, for example, that to make all smacking a criminal offence would not be an "appropriate" measure. We referred in the discussion paper to the recommendation on the corporal punishment of children made in 1985 by the Committee of Ministers of the Council of Europe. Some of our respondents suggested that abolition was necessary in order to comply with this recommendation. We do not believe that this is so. The recommendation was only that member states should

"review their legislation on the power to punish children in order to limit or indeed prohibit corporal punishment, even if violation of such a prohibition does not necessarily entail a, criminal penalty" ^[27]

This falls well short of a firm recommendation that corporal punishment should be abolished.

A few of those who were in favour of retaining the parental right of corporal punishment claimed that the abolition of corporal punishment in state schools had led to widespread indiscipline and disruption. Such research evidence as we have been able to assess does not bear this out. Discipline problems were present before corporal punishment was abolished. Indeed

^[29]

"behaviour tended to be worse in schools with a high level of corporal punishment (which might mean more punishment leads to more rebellion, or more rebellion leads to more punishment). Certainly. it seems that schools with strict punitive strategies [did] not avert delinquency. ^[30]

Since corporal punishment in state schools was abolished, schools have developed a variety of strategies and sanctions to cope with discipline problems. ^[31] Research done in Scotland, at a time when some schools had voluntarily abolished corporal punishment and others had not, found that

"irrespective of whether a school employed corporal punishment, there was a distinct gap between the best and the worst classroom climates. In the schools which had given up corporal punishment wholly or substantially. teaching and learning went on as elsewhere. Standards of behaviour were not generally giving more cause for concern to teachers. parents or pupils than in other schools. Nor did the teacher-observers find the behaviour of pupils in the class rooms detectably different from elsewhere." ^[32]

None of the schools which had abandoned, or moved towards abandoning, corporal punishment had considered reintroducing it. The majority opinion among staff and pupils was that standards of behaviour were no worse since abolition or reduction of corporal punishment.

The arguments in favour of abolition are strongest in relation to punishment at the severe end of what may be permissible under the present law. In relation to the violent parent who often lacks self-control, who punishes his or her child frequently, severely and erratically, who responds to criticism by friends and relatives by saying "I have the right to do this. You mind your own business", who is eventually reported to the police by concerned neighbours, and who escapes prosecution for child abuse only because the local procurator fiscal believes that there would be a successful defence of reasonable parental chastisement in relation to any incidents which could be proved, it is easy to see the force in the arguments of the abolitionists that the child would be better protected from danger if the parental right of reasonable chastisement were removed completely. Similarly, in relation to the self-controlled but strict parent, who regards it as a parental duty not to spare the rod, and who enforces very demanding standards of conduct by frequent canings, which are reasonable and moderate in the parent's view (and, let us suppose, would also be so regarded by some judges) but which in fact have placed the child in a state of suppressed fear and anxiety, it is easy to see the force in the arguments of the abolitionists that the child's rights as a person are being overlooked or undervalued; that the child is likely to be harmed; and that an inappropriate role model is being provided. On the other hand, in relation to the firm but affectionate parent who sets reasonable standards and who only occasionally resorts to a safe smack to emphasise the seriousness of his or her displeasure, it is easy to see the force in the arguments of the retentionists that this type of conduct cannot reasonably be categorised as violence, abuse or maltreatment; that a parent could legitimately take the view that it is in the interests of the child and of those liable to be affected by anti-social behaviour by the child; that the child will not be harmed; and that it would be unduly interventionist, and calculated to bring the law into disrepute, to make such conduct unlawful.

2.93

Assessment of options. At the most general level we have to choose between recommending some change or no change in the present law. We have been impressed by the level of support, particularly from organisations concerned with child care or child welfare, for some change. We have accepted that there is force in some of the arguments for change, particularly in relation to corporal punishment at the severe end of what may be permitted by the present law. We do not therefore recommend that the law should remain unaltered.

2.94

So far as the direction of change is concerned we have no doubt that, if there is to be any change, it should be in the direction of reducing the level of physical force which can lawfully be used in the punishment of children. No-one argued that the existing law unduly curtailed the powers of parents, even although what is permitted today probably falls short of what was regarded as normal and desirable in earlier times.

^[33]

The most radical option would be to make all corporal punishment unlawful, for both civil and criminal law purposes. A safe parental smack on the bottom for disciplinary purposes would become, legally, an assault. We do not recommend this option. We think that it would be going too far to criminalise ordinary safe smacks of the type occasionally resorted to by many thousands of normal affectionate parents. It is significant that some of the strongest advocates of reform do not advocate that smacking should be a criminal offence.

^[34]

An option which was strongly urged by some respondents was that all corporal punishment of children by parents should be made unlawful for civil law purposes but not for criminal law purposes. A child subjected to corporal punishment of a type permitted by the existing law could sue his or her parent for damages for assault, but the parent could not be prosecuted. Even conduct at the extreme end of what is permitted by the present law, involving perhaps the use of belts, sticks or other implements, would not be made a criminal offence. Those supporting this option pointed out that this technique had been used successfully in effecting the abolition of corporal punishment in state schools. Section 48 of the Education (No.2) Act 1986 adds the following provisions to the Education (Scotland) Act 1980.

"Corporal Punishment	"Corporal Punishment
Abolition of corporal punishment of pupils.	48A.-(1) Where, in any proceedings, it is shown that corporal punishment has been given to a pupil by or on the authority of a member of the staff, giving the punishment cannot be justified on the ground that it was done in pursuance of a right exercisable by the member of the staff by virtue of his position as such.

(2) Subject to subsection (3) below, references in this section to giving corporal punishment are references to doing anything for the purposes of punishing the pupil concerned (whether or not there are also other reasons for doing it) which, apart from any justification, would constitute physical assault upon the person.	(2) Subject to subsection (3) below, references in this section to giving corporal punishment are references to doing anything for the purposes of punishing the pupil concerned (whether or not there are also other reasons for doing it) which, apart from any justification, would constitute physical assault upon the person.

(3) A person is not to be taken for the purposes of this section as giving corporal punishment by virtue of anything done for reasons which include averting an immediate danger of personal injury to, or an immediate danger to the property of, any person(including the pupil concerned).	(3) A person is not to be taken for the purposes of this section as giving corporal punishment by virtue of anything done for reasons which include averting an immediate danger of personal injury to, or an immediate danger to the property of, any person(including the pupil concerned).

(4) A person does not commit an offence by reason of any conduct relating to a pupil which would, apart from this section, be justified on the ground that it was done in pursuance of a right exercisable by a member of the staff by virtue of his position as such."	(4) A person does not commit an offence by reason of any conduct relating to a pupil which would, apart from this section, be justified on the ground that it was done in pursuance of a right exercisable by a member of the staff by virtue of his position as such."

We do not recommend this option. It would convey a confusing message to parents who. would be told, in effect, that the lawfulness of smacking, belting or caning their children depended on what court they came before. If they came before a criminal court they would still have the defence of reasonable chastisement, as before. If their child sued them in a civil court, which would be extremely unlikely, they would not. This solution would give the quite false impression that the state is not greatly interested in this matter and that it is simply a private matter between parent and child. The whole reason for setting a legal limit is that the state is interested in protecting children. If the state is sufficiently interested to intervene and set a limit it should not, in our view, simply leave it to beaten children to enforce the limit by taking civil proceedings against their parents. It would not be acceptable to say that moderate corporal punishment of a wife by her husband was a civil wrong but not a criminal offence. The Education Act model is not persuasive. First, it seems a bad model on its merits. For a teacher in a state school to belt a child nowadays, contrary to everybody's expectations and the accepted norms of classroom conduct, surely ought to be a criminal offence. Secondly, the fact that this solution worked in the education context does not mean that it would work in the parental context. A parent can initiate civil proceedings against a teacher on behalf of a young child. The child can be protected from severe retaliation. Damages will benefit the child without adversely affecting the parent. There are effective disciplinary sanctions. A belting teacher would probably lose his or her job-certainly if the conduct persisted. The position in the family, as between parent and child, is very different in all these respects.

Some commentators suggested that, at the very least, there should be an attempt to clarify the limits beyond which parents cannot go in exercising their right of reasonable chastisement. This is an option which we find attractive. It is a clear approach which addresses the real question-"What are the acceptable limits? "-without trying to fudge the issue. It could do a lot of good if it disabused some parents of any views they might have that floggings and beatings are acceptable. It could be used as a basis for education campaigns (such as that planned by the RSSPCC) which, of course, could go far beyond a simple explanation of the new law and could stress the positive alternatives to physical punishment. It seemed to us, on reviewing the response to our discussion paper as a whole, that there was more common ground than might be supposed. Many of those who favoured retention of the parental right talked in terms of ordinary smacking in the context of an affectionate relationship. Many of them stressed that they did not support the abuse or maltreatment of children. On the other hand, as we have seen, many of those who favoured comprehensive reform drew the line at criminalising the many thousands of good parents who resort to the occasional safe smack. In short, there was universal opposition to, and indeed revulsion at, the idea that parents should be permitted to subject their children to abuse or maltreatment and a general, but not universal, reluctance to categorise an ordinary safe disciplinary smack as abuse or maltreatment, at least for purposes of the criminal law.

2.98

It seemed to us, on the basis of the comments which we had received, that there would be likely to be general agreement that a parent should not, in the purported exercise of parental rights, be allowed to cane, belt, whip or flog a child or hit the child with a shoe, slipper, wet cloth, piece of rope, wooden spoon, fish slice or any of the other objects which we know some parents use as instruments of punishment. It also seemed to us that almost everybody would agree that a parent should not be allowed to strike a child in a way which actually injured the child (by breaking an arm, for example, or damaging an internal organ, or lacerating the skin) or involved a risk of injury to the child (as a heavy blow to the head, face or abdomen would do, even if by good fortune it did not cause injury in a particular instance). It also seemed to us that almost everyone would agree that a parent should not be able to strike a child in such a way as to cause, or risk causing, prolonged pain. The essence of the ordinary safe parental smack, which many of our respondents did not wish to criminalise, was, it seemed to us, that it caused no injury and only transient pain. We therefore concluded that a possible way of increasing the protection of children from physical force would be to remove the defence of reasonable chastisement in the exercise of parental rights if the conduct complained of involved striking the child

(a) with a stick, belt or other object, or

(b) in such a way as to cause, or to risk causing, injury, or

(c) in such a way as to cause, or to risk causing, pain or discomfort lasting more than a very short time.

2.99

A provision on the above lines would meet the desire of a number of consultees for a clarification of the scope of the parental right of punishment. It would draw the line at a point which could be easily explained and understood. "No implement. No injury or risk of injury. No lasting pain or discomfort or risk of lasting pain or discomfort." It would outlaw the worst practices while not criminalising the ordinary safe smack. It would be enforceable through criminal prosecutions for assault or child abuse if need be, and also through civil proceedings, although these would probably be rare. It would not leave it to the beaten child to sue his or her parent. It would provide increased protection for children without interfering unduly with parental rights.

2.100

To test the view that drawing a distinction between ordinary safe smacking, on the one hand, and canings, beltings or beatings with objects of various sorts, on the other, might be a generally acceptable way of clarifying and limiting the extent of the parental right of chastisement we commissioned a public opinion survey, which was carried out for us by System Three Scotland in September 1991. We sought views on the acceptability of

(a) smacking with the open hand in a way not likely to cause lasting injury, or

(b) hitting with a belt, stick or other object in a way not likely to cause lasting injury.

The interviewers asked these questions in relation to children of different ages because we thought it possible that some people might be more tolerant of, say, caning a 15 year old than caning a 3 year old. Respondents were first asked the following question.

"Thinking first of a 3 year old child who has behaved badly, do you think it should be lawful or against the law for a parent to

(a) smack the child with the open hand in a way not likely to cause lasting injury

(b) -hit the child with a belt, stick or other object in a way not likely to cause lasting injury?"

Respondents were then asked the same question in relation to a 9 year old and a 15 year old.

2.101

In relation to a 3 year old who had behaved badly 83% of the respondents considered that it should be lawful for a parent to smack the child with the open hand in a way not likely to cause lasting injury. However, 94% considered that it should be against the law for a parent to hit the child with a. belt, stick or other object, even if the hitting was not likely to cause lasting injury. Only 3% thought that it should be lawful for a parent to hit a 3 year old child with a belt, stick or other object. In relation to a 9 year old, 87.% thought that it should be lawful to smack, but 91 % thought it should be against the law to hit with a belt, stick or other object. Only 7% thought that it should be lawful to hit a 9 year old with a belt, stick or other object. In relation to a 15 year old, 68% thought that it should be lawful to smack but 85% thought that it should be against the law to hit with a belt, stick or other object. Again, only a small minority (10%) thought that it should be lawful for a parent to hit a 15 year old with a belt, stick or other object. The combined results for all three sets of questions were as follows.

(Unweighted base: 1055)

	Smack	Hit with belt, stick or other object	Hit with belt, stick or other object	Hit with belt, stick or other object	Hit with belt, stick or other object	Hit with belt, stick or other object
3 year old	9 year old	15 year old	3 year old	9 year old	15 year old	15 year old
percent	percent	percent	percent	percent	percent	percent
Lawful	83	87	68	3	7	10
Unlawful	14	11	25	94	91	85
Don't know	3	2	7	2	2	5

Older respondents were, on the whole, more likely to think that corporal punishment with a belt, stick or other object should be lawful. For example, only 6% of those in the 15-44 year old age group thought this should be lawful in the case of a 15 year old, whereas 11% of those in the 45-64 year old age group and 18% of the over 65's did so. Other variations in attitudes among sub-groups of the population were found. One of the most interesting was that respondents with children in the household were two to four times less likely to think that hitting with a belt, stick or other object should be lawful than were respondents with no children in the household. There was, however, very little difference between these two groups so far as the lawfulness of smacking was concerned. The fact that only 1% of those with children in the household thought that it should be lawful to use a belt, stick or other object on a 3 year old and that the corresponding figures for 9 year olds and 15 year olds were only 3 % and 6 % respectively is particularly significant as it is this group which contains those who are in a position to claim that their parental rights would be affected by the relevant legislation.

The results of the survey confirmed that the distinction between smacking and the use of belts, sticks or other objects was indeed one which was likely to be acceptable to the great majority of the general public at this time. A solution based on this distinction would not please the small minority who think that it should be lawful for a parent to hit his or her child with a belt, stick or other object, nor the larger minority who think that all smacking should be against the law, but it would be a practicable way forward which would improve the lot of some unfortunate children. It would not be inconsistent with education campaigns aimed at discouraging corporal punishment generally and emphasising the benefits of alternative child-rearing practices.

2.103

Some of those who commented on the discussion paper suggested that, even if nothing else were done, section 12(7) of the Children and Young Persons (Scotland) Act 1937 should be repealed. This is the provision which, in the context of cruelty to children, expressly refers to the parental right to administer punishment. A number of our respondents regarded it as an unfortunate and confusing anachronism. Section 12(7) can be properly understood only by reference to section 12(1) which provides as follows.

"Cruelty to persons under sixteen.

12.-(1) If any person who has attained the age of sixteen years and has custody, charge, or care of any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of an offence

Section 12(7) then provides that:

"(7) Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person having the lawful control or charge of a child or young person to administer punishment to him."

It should be noted that section 12(7) does not create a new defence. It merely refers, presumably for the avoidance of doubt, to an existing common law right to administer punishment. If it were repealed, the common law defence of lawful chastisement would still remain. The law would still distinguish between an assault on the one hand and lawful chastisement on the other. However, to repeal section 12(7) at this stage without doing more would probably create confusion. People would wonder whether the express reference to "assaults" in section 12(1) covered an ordinary smack, or at least one which a court considered to have been "unnecessary". There would be an argument that section 12(7) must have had some purpose and that its repeal must have been intended to effect some change. The risk of confusion is caused by the reference to assault in section 12(1) and by the fact that, in Scots law, quite trivial blows, slaps or smacks can constitute assault. The references to assault in section 12(1) are plainly unnecessary as assault, or aiding and abetting assault, would in any event be a common law offence. One option therefore would be to remove the unnecessary references to assault in section 12(1). Assault would be left to turn on the common law. If this were done section 12(7) would clearly be inappropriate and could safely be repealed. There is no existing common law right to ill-treat, neglect, abandon or expose a child in a manner likely to cause him or her unnecessary suffering or injury to health and it would be absurd and objectionable to preserve a provision which seemed to suggest that, there was. We are in favour of repealing section 12(7). At best it is unnecessary. At worst it conveys the message that cruelty to children is acceptable if done in the name of punishment. If the repeal was accompanied by the other changes we are recommending there would be no risk of confusion so far as those exercising parental responsibilities or rights are concerned.

It remains to consider the positions of teachers and of those such as step-parents who have care or control of a child in a family situation but who do not have parental responsibilities or rights. So far as teachers are concerned, it would be going beyond the scope of this report, and beyond the scope of our consultation, to make any recommend action. The existing position, whereby corporal punishment is effectively outlawed in some schools but not. or not entirely, in others,

Most of the law on the constitution of marriage is statutory.

Recommendation. We recommend that

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.

(Draft Bill, clause 4 and Schedule 2)

Part VII Marriage by cohabitation with habit and repute

Introduction

7.1

If a man and a woman who are free to marry each other cohabit as husband and wife in Scotland for a considerable time and are generally regarded as being husband and wife they are presumed to have consented to be married, even if only tacitly, and, if the presumption is not rebutted, will be held to be married by cohabitation with habit and repute.

Present law

The law on marriage by cohabitation with habit and repute gives rise to a number of difficulties. First, what is a sufficient length of cohabitation? No firm answer can be given. It was stated in the Inner House in 1909 that a period of 10 months was not enough.

Problems in present law

As a way of getting married, marriage by cohabitation with habit and repute has little to commend it. It is inherently vague and unregulated and causes difficulty and expense at a later stage. In reality this type of marriage is a way of conferring rights on some cohabitants, usually after the death of the other party to the relationship. It is as a protective mechanism for cohabitants that it must be judged.

Assessment of present law

7.5

One criticism of marriage by cohabitation with habit and repute as a protective mechanism for cohabitants is that it is not available to couples who have lived together without ever pretending to be married or acquiring the reputation of being married. This type of open cohabitation is increasingly common nowadays.

A second criticism of marriage by cohabitation with habit and repute as a protection for cohabitants is that, even among those who have had the reputation of being married, it operates in a capricious way because of the vagueness and uncertainty of the law and the emphasis on tacit consent. A cohabitant may lose protection simply because the couple were unaware that the man's prior marriage had been ended by divorce and continued to believe, throughout the period of cohabitation, that he was still married to his first wife. A person who thinks he is married to X cannot tacitly consent to marry Y. Much may depend on how a surviving cohabitant answers questions about the couple's attitude to a regular marriage. If he or she says "We intended to get married in a registrar's office but kept putting it off" it could be difficult, from a strictly logical point of view, to hold that there was a tacit consent to marriage.

A third, and possibly the most serious, criticism of marriage by cohabitation with habit and repute as a protective device is that it creates uncertainty and endangers subsequent regular marriages. It seems likely that in many cases of marriage by this method the couple never regard themselves as married at all, and that the idea of marriage first presents itself when the survivor consults a solicitor after the death of the other partner. People who do not think they are married do not think they need a divorce when they separate. The device of holding a couple to be actually married by cohabitation with habit and repute is therefore potentially dangerous. They may split up. One of them may marry someone else. That marriage will always be at risk from an attempt by the former cohabitant to establish a marriage by cohabitation with habit and repute. A woman could lose all her succession rights on the death of the man to whom she thought she had been married because another woman with whom her "husband" had formerly cohabited establishes a marriage by cohabitation with habit and repute.

Results of consultation

7.8

In the discussion paper we invited views on three options:

(1) retention unchanged,

(2) retention with changes (for example, specification of a minimum period of cohabitation) and

(3) abolition.

Most of those who commented on this question supported abolition. The criticisms of the existing law-vagueness, uncertainty, arbitrariness, illogicality, discrimination against open and honest cohabitation, difficulties caused by not knowing whether there is or is not a marriage-were accepted and reinforced by further examples. There was hardly any support for the option of retaining but reforming the law on marriage by cohabitation with habit and repute. The few who supported retention generally did so on the footing that it would be premature to abolish this form of marriage until there had been some reform of the rights of cohabitants generally in private law. We deal with this topic later.^[18] The results of consultation confirm, us in our view that this form of marriage is an archaism and should be abolished for the future-although. that should not affect any marriage already constituted by tacit consent coupled with the requisite cohabitation and repute before the date of commencement of the new legislation, even if no declarator had been obtained by the date of commencement.

Recommendation

In the past marriage by cohabitation with habit and repute has sometimes proved useful as a way of, in effect, validating void marriages. However, there is now express statutory provision for the validation of marriages in Scotland which would otherwise be void because of some formal defect, such as failure to give adequate notice.

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).

(Draft Bill, clause 22.)

7. 10 It is perhaps worth pointing out that abolition of marriages by cohabitation with habit and repute would have little or no effect on the legal position of children which, under Scots law, is generally exactly the same whether or not their parents are, or have been, married to each other. ^[19] The children of a cohabiting couple have, for example, the same rights of aliment against both parents, and the same rights of succession in relation to both parents and other relatives, as if the parents were married to each other. So far as social, as opposed to legal, effects are concerned, it seems doubtful whether there would be any social advantages for children in a marriage by cohabitation with habit and repute. If the parents have successfully passed themselves off as married in their community then the children probably stand to lose rather than gain by any embarrassing disclosures made in an action for declarator of marriage. If the parents have not successfully passed themselves off as married in their community then there is little hope of establishing a marriage by cohabitation with habit and repute.

7. 11 It is also worth pointing out that abolition of this form of marriage would not affect any evidential value which long cohabitation and a reputation of being married may have in, for example, raising a presumption that a couple were married in a foreign ceremony of which records have not survived.^[20]

Finally, we should note that there is an argument that the abolition of marriage by cohabitation with habit and repute would leave in existence an innominate class of irregular marriage by tacit consent

subsequente copula ^[25]

, We deal with private international law questions relating to marriage later.

Part VIII Nullity of marriage

Introduction

Some rules on nullity of marriage are already in statutory form in Scotland. Section 1(2) of the Marriage (Scotland) Act 1977 provides that a marriage is void if either party is under the age of 16 and section 2 provides that a marriage is void if the parties are within the prohibited degrees of relationship laid down in the Act. Section 23A of the same Act provides that the validity of certain marriages is not to be questioned on the ground of certain formal defects.

All that is required here is an enactment in statutory form of the existing rule of law that a marriage is void if either party to it is, at the time of the marriage, already married. As we have noted, we deal with private international law questions later.

Prior subsisting, marriage

We are assuming for present purposes that the policy on the minimum age for marriage is unchanged since the Marriage (Scotland) Act 1977 was enacted. On this basis all that is required is a re-enactment of the existing rule that a marriage is void if either of the parties is. at the time of the marriage, under the age of 16. We recommend therefore that

43. It should continue to be a ground of nullity of marriage that either party is at the time of the marriage already married.

(Draft Bill., clauses 20 and 21(1).)

Nonage

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.

(Draft Bill, clauses 20 and 21(1).)

Parties of same sex

8.5

In the discussion paper we made the assumption that public policy in this country on the question of same-sex marriages was unchanged since the enactment of the Marriage (Scotland) Act 1977. section 5(4)(e) of which provides that there is a legal impediment to a marriage if both parties are of the same sex. Few of our respondents questioned this assumption. However, one or two suggested that the law should be changed so as to allow marriage between persons of the same sex. One or two others thought that this was a question which might have to be re-examined in the future but did not advocate change at the present time. Since the discussion paper was published, the question whether a genetically male transsexual, living life socially, physically and psychologically as a woman, has a right under the European Convention on Human Rights to marry a man has been considered by the European Court of Human Rights.

The Marriage (Scotland) Act 1977 provides that a marriage is void if the parties are within the prohibited degrees of relationship set out in the Act.

45. It should continue to be a ground of nullity of marriage that both parties are of the same sex.

(Draft Bill, clauses 20 and 21(1).)

Prohibited degrees of relationship

In the case of relationships by marriage the only restrictions are on marriage with a former spouse's child, grandchild or parent,

The case involved a woman who divorced her husband and obtained custody of the children of the marriage. She was greatly supported in looking after the children by her former husband's father and mother. She in turn provided support when her ex-mother-in-law became ill. Some time after the death of the ex-mother-in-law the woman and her former husband's father decided they would like to marry each other but found that they could not because the woman's former husband was still alive. Section 2(1B) of the Marriage (Scotland) Act 1977 provides, as we have seen, that a marriage between a woman and the father of a former husband is permissible only

"the younger party has not at any time before attaining the age of 18 lived in the same household as the other party and been treated by the other party as a child of his family. ^[11]

Whether this restriction is necessary or desirable is a question on which different views could be held, but it is not manifestly unreasonable and, as the law was reformed as recently as 1986, we do not think that this would be an appropriate time to re-open debate on this issue. In the case of a former spouse's parent, marriage is now permitted provided that both parties have attained the age of 21 and the marriage is solemnised

(a) in the case of a man marrying the mother of a former wife of his, after the death of both the former wife and the former wife's father;

(b) in the case of a man marrying a former wife of his son, after the death of both his son and his son's mother;

(c) in the case of a woman marrying the father of a former husband of hers, after the death of both the former husband and the former husband's mother;

(d) in the case of a woman marrying a former husband of her daughter, after the death of both her daughter and her daughter's father. ^[12]

These restrictions seem odd and unreasonable. As we were beginning work on our discussion paper we were referred by a Member of Parliament to a case involving a constituent of his, where the restrictions had caused difficulty and distress.

"after the death of both the former husband and the former husband's mother."

8.9

Other cases where the restrictions in section 2(1B) might seem even more unreasonable can readily be imagined. Suppose that a man aged 40 marries a woman aged 25 who has never known her father. The wife is killed in a road accident and, some time later, the man and his former wife's mother, who is closer to his own age, want to get married. Why should it matter whether the former wife's father, who might not even know that she ever existed, is alive or dead? What is the point of this restriction on a marriage between two people who are both unmarried and unrelated by blood? Or suppose that a man divorced his wife in 1970. She remarried and went to live in London, taking the son of the marriage with her. In 1977 the son married. He continued to live in London and saw very little of his father. In 1980 the son and his wife were divorced. In 1983 the son's former wife moved to Scotland. She and her former father-in-law began to see more of each other. They would now like to marry each other. Why should they have to wait until both of their former spouses are dead?

8. 10 It is worth noting that a person can marry his or her former cohabitant's parent, without restriction. It is also worth noting that sexual intercourse between a person and the parent of his or her former spouse is not incest, so that in all the examples given the couple could cohabit as husband and wife without committing any offence. All that the law does is to prevent them from marrying each other.

8.11

Section 2(1B) is the result of an amendment introduced at the report stage in the House of Lords, at a time when the Bill in question did not yet extend to Scotland.

^[13]

"would endanger roles within the family and would open up possible erotic overtones." ^[14]

The type of case which concerned the objectors was explained by Lord Meston as follows. ^[15]

"One can take a typical example. A young, couple marry. They may go to live with the parents of, say, the young husband. There may be a weak, immature perhaps teenage daughter-in-law who may be very vulnerable to the influence of her father-in-law. There is a situation of proximity and dependency. If a relationship did develop between the young husband's wife and his father, there are two subsisting marriages which potentially would be ended by divorce. "

The question which must be asked is whether the prohibition in section 2(1B) is likely to prevent this type of situation. Are the parties likely to know the law at the time when an attachment is developing? Even if they do, is that likely to prevent the attachment developing further? It must also be asked why this situation, unfortunate and distressing though it may be, is regarded as so much worse than any other situation in which an attraction between two married people results in the break-up of the two families? Why does the parent-in-law relationship itself justify a restriction? Would the situation be so much less distressful if the younger man were the older man's foster son or brother or nephew or business partner or close friend? Would it be so much less distressful if the young woman were the son's cohabitant rather than his wife?

These issues were considered in the report entitled No Just Cause by a group appointed by the Archbishop of Canterbury to look into the law of affinity in England and Wales.

"to condone sexual rivalry between father and son, or mother and daughter, which, within the close confines of the family, would be destructive of the father and son, or mother and daughter, relationships. ^[23]

In addition, it would deprive the child-in-law of his or her safety of place as child in the new family into which he or she marries. When, for instance, a son brings his wife to his father's home, there is an underlying assumption that the daughter-in-law will assume a role in relation to her father-in-law which is exempt from sexual expectations. To admit the possibility of a future marriage between parent-in-law and child-in-law would be to undermine assumptions which make for the safety and comfort of the adult family. ^[24]

These arguments are very similar to the arguments which were made many years ago against marriage with a deceased wife's sister. They seem to us to be just as unrealistic and just as unsupported by anything in the way of evidence. The picture of sexual rivalry painted by the minority seems to us to be far removed from the ordinary decencies of family life in this country, and far removed, for example, from the actual constituency case referred to earlier. The idea that women visiting their fathers-in-law are passive creatures who need the protection of a provision in the Marriage (Scotland) Act 1977 to give them "safety of place" and "a role which is exempt from sexual expectations" strikes us as unconvincing. The minority's arguments would seem to lead to an outright prohibition of marriage with a former parent-in-law and that is what they actually recommended. They did concede, however, that there were not such strong. objections to a marriage between a parent-in-law and a child-in-law if the intervening spouse ^[25] were dead

"for then our concern about disruption within the immediate family circle would lose some of its immediate force." ^[26]

As we have seen, it was a compromise solution on these lines which was adopted in the Marriage (Prohibited Degrees of Relationship) Bill for England and Wales and which was later extended to Scotland when the Bill was amended to include Scottish clauses.

It is not satisfactory that Scots law should be based on the unconvincing arguments of a minority of a group appointed by the Archbishop of Canterbury to consider the law of affinity in England and Wales. We concluded in the discussion paper that this question deserved to be properly discussed in Scotland. Our preliminary view was that the restrictions presently in section 2(1B) of the Marriage (Scotland) Act 1977 led to anomalies and results which could not be justified by any reasonable argument. We therefore suggested the removal of the few remaining restrictions on marriage between a person and the parent of his or her former spouse. This suggestion' was supported by a majority of those who commented on it. Some consultees thought that it was desirable that the prohibited degrees of relationship should be the same for marriage and for incest and, as it is not incest to have intercourse with a former parent-inlaw, favoured removal of the remaining restrictions for this reason. The minority who opposed any change did so for various reasons. Some appealed to the statement of forbidden degrees in the Old Testament. However, the biblical degrees were departed from in 1907 when marriage with a deceased wife's sister was permitted and we do not think that there can be any question of going back to them. In any event, so far as the civil law is concerned, this, is a question which has to be decided, for all citizens whatever their religious views, by reference to social considerations. People who have religious objections to ' particular types of marriage do not need to enter into them. One group of consultees thought that the Scottish law on this subject should remain the same as English law. We do not see, however, why that need be so. There would be no practical difficulties or inconveniences in having different laws on this rather esoteric point.

^[27]

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..

(Draft Bill, clauses 20, 21(1) and Schedule 2.)

Non-compliance with formal requirements

Most marriages in Scotland are now immune from challenge on the ground of non-compliance with formal requirements. This is the result of section 23A of the Marriage (Scotland) Act 1977 (added in 1980)

There are some formalities which are not serious enough to warrant invalidity (even of a type curable by registration) if they are not complied with. They are not essential formalities. A marriage should not be void, for example, merely because one of the parties gave wrong information to a registrar when giving notice of intention to marry.

"where the particulars of any marriage at the ceremony in respect of which both parties were present are entered in a register of marriages by or at the behest of an appropriate registrar, the validity of that marriage shall not be questioned, in any legal proceedings whatsoever, on the ground of failure to comply with a requirement or restriction imposed by, under or by virtue of this Act." ^[29]

This is a very useful provision. We think, however, that it should be widened in two respects. First, it should be applied to non-compliance with formal requirements under earlier laws (provided that there had not already been a decree of declarator of nullity in respect of the marriage in. question or a later marriage to someone else in reliance on the nullity of the first marriage) and, secondly, it 'Should provide that the marriage in question is not invalid rather than that its validity "shall not be questioned". The latter formula suggests that the marriage might actually be invalid but that there is a sort of procedural bar to raising this question. We recommend that

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 an' other marriage in reliance on its nullity.

(Draft Bill, clause 21(5) and (7).)

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^[31]

(a) the giving of notice of intention to marry

(b) 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

(c) the presence of both parties at the ceremony

(d) the presence as witnesses of two persons professing to be 16 years of age or over

(e) the presence of an authorised or legally recognised celebrant and

(f) the outward exchange by the parties of present consent to marriage.

These formal requirements would apply only in relation to marriages entered into in Scotland and the new express ground of nullity would not be retrospective. It is not our intention to invalidate any irregular marriages entered into in Scotland at a period when such marriages were possible. The formal validity of marriages entered into outside Scotland would be governed by the law of the place of celebration. ^[32] Failure of a marriage ceremony to comply with any of these requirements except that relating to the presence of the parties would be curable by due registration. So, for example, once the marriage had been duly registered it could not be challenged on the ground that the celebrant was unauthorised. We recommend that

47.(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.

(Draft Bill, clause 21(1)(c).)

Defects in consent

A marriage is void in Scots law if either party is incapable of understanding the nature of marriage or of consenting to marriage; or if either party is in error as to the nature of the ceremony or the identity of the other party; or if either party was forced against his or her will to/marry the other party.

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^[34]

A marriage is also void in Scots law if the parties, even although consenting freely to go through a marriage ceremony and in no error, had at the time of the ceremony a mental reservation to the effect that a legal marriage would not result from the ceremony. For example, the parties may have tacitly withheld consent to be married by a civil ceremony because they believed a religious ceremony to be essential for their religious purposes, or because they were going through the ceremony merely for immigration purposes.

Akram v Akram

Although there is authority for the view that one party will not be allowed to found on his own unilateral mental reservation of matrimonial consent,

"whether legislation should preclude parties from challenging the legal effect of any formal ceremony of marriage ^[37] on the ground that they knowingly but tacitly withheld their true consent to marriage."

Scots law seems to be peculiarly generous in relation to such sham marriages. In England and Wales secret mental reservations have no effect. ^[38] The Canadian courts have generally taken the same view. ^[39]

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It seems to us that it is undesirable to allow parties, who know full well what they are doing, to determine for themselves the legal effects which will follow from participation in a formal legal ceremony of marriage. In our view this is a matter for the law to determine. This view was supported almost unanimously on consultation. We recommend therefore that tacit mental reservations as to the legal effects of a marriage ceremony should have no effect. The draft Bill achieves this result by setting out the only grounds of nullity and by not including tacit mental reservations among them.

Our combined recommendations on defects in consent as grounds for nullity are as follows.

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 declaration 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.

(Draft Bill, clause 21(1)(b) and (2).)

Voidable marriages: impotency

8.21

Under the existing law Scotland a marriage is voidable if either party is at the time of the ceremony permanently and incurably impotent in relation to the other spouse.

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The idea of a voidable marriage, which is perfectly valid until declared void by a court but which is then regarded as having been void from the beginning, leads to difficulty. What, for example, is the position if one of the parties entered into a second marriage before the declarator of nullity was granted? Is the second marriage retrospectively validated when the first is declared void? There is no clear answer to this problem in Scots law.

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In English law a decree of nullity in respect of a voidable marriage now has prospective effect only. It operates

"to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it has existed up to that time." ^[49]

The view that a separate category of voidable marriage is necessary or desirable in English law has been subjected to cogent criticism. ^[50]

Proof of incurable impotency generally requires medical evidence. The courts assess incurability in the light of the circumstances of the particular marriage, and will not regard impotency as curable merely because in other hypothetical circumstances it might have responded to treatment.

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There are not now many actions for declarator of nullity on the ground of impotency. Divorce on one of the separation grounds will often be a simpler and more acceptable remedy for the spouses. The Civil Judicial Statistics for Scotland since 1979 reveal an average of 8 actions for declarator of nullity of marriage a year. Even if all of these are on the ground of impotency the number is still very low.

8.26

The question for consideration is whether nullity for impotency is worth retaining in a new codified family law. Our view is that it is not. The notion of the valid but retrospectively voidable marriage. is very odd and leads to unnecessary difficulties. There would not be much point in amending the law to provide that a declarator of nullity for impotency dissolves a marriage only for the future. That would simply be divorce by another, and singularly inappropriate, name. Given the availability of non-fault divorce on the basis of a reasonably short period of separation, it must be open to doubt whether a special ground of so-called nullity of this nature would be justifiable.

We have considered whether, if impotency were no longer recognised as a ground on which a marriage is voidable, it ought to be added to the Divorce (Scotland) Act 1976 as one of the facts from which the irretrievable breakdown of a marriage may be inferred. The argument for this is that it would provide the possibility of an immediate divorce. The party who wished to have the marriage dissolved would not have to wait for a period of years, after the parties had separated, before raising an action.

A majority of those who responded to this question in the discussion paper agreed with our provisional assessment that it was no longer necessary or desirable to retain impotency as a ground on which a marriage is voidable. The general view was that, in cases of marriage breakdown, divorce was a more satisfactory and logically defensible civil remedy than either retrospective or prospective nullity for impotency. It was regarded as undesirable to focus narrowly on the one' question of sexual impotency at the date of the marriage in determining whether a remedy should be available.

"It is recognised that a marriage may be entered, or may continue, without a sexual relationship being a factor. The crucial factor in whether a marriage should be brought to an end should be whether there has been a breakdown of the relationship, whether or not impotency is an aspect of such breakdown. It would seem particularly anomalous to retain the rule at a time when, owing to the development of modern technology, it is possible to have children of a marriage notwithstanding that one partner is impotent." ^[58]

Of those few consultees who favoured retaining impotency as a ground on which a marriage is voidable, two referred to opposition to divorce on religious grounds '. We do not believe, however, that the ordinary law of the land on the remedies available to all, for purely civil purposes, in cases of marriage breakdown ought to be determined by the views of any particular religion. From a civil law point of view we can see no advantages, but several disadvantages, in calling a decree dissolving a valid marriage which has unfortunately broken down a decree of nullity rather than a decree of divorce.

It will be clear from what we have said above that we regard the concept of the valid but retrospectively voidable marriage as thoroughly unsatisfactory and that we regard the conferring of the name "nullity" on. a decree which dissolves a valid marriage for the future as an inappropriate use of words. The provisional proposal in the discussion paper that there should be no new grounds on which a marriage is voidable in Scots law was agreed to unanimously by those who commented on it. We therefore recommend that

49. Marriages should not be voidable on the ground of impotency..

(Draft Bill, clause 21(8).)

Voidable marriages-other possible grounds

8.30

50. There should be no new grounds on which a marriage is voidable in Scots law.

8.31

If the two preceding recommendations are implemented the result would be that the concept of the voidable marriage would disappear from Scots law. That would in itself be a simplification and it would also help to resolve in a clear and simple way some problems in private international law which have caused difficulty in the past.

At present some of the provisions of the Marriage (Scotland) Act 1977 relate partly to prohibitions of certain marriages and partly to grounds of nullity. For example, section 1 provides that

Consequential changes to Marriage (Scotland) Act 1977

(1) No person domiciled in Scotland may marry before he attains the age of 16.

(2) A marriage solemnised in Scotland between persons either of whom is under the age of 16 shall be void."

The first subsection is a prohibition, directed to the individuals potentially concerned. The second subsection lays down a rule of nullity. It is, as it were, addressed to the courts and legal advisers who have to decide on the validity of a marriage after the event. Section 2 of the 1977 Act contains nullity rules for marriages of people within the prohibited degrees of relationship. The actual prohibition comes later, in section 5, where the impediments to a regular marriage in Scotland are listed. If the grounds of nullity of marriage, of which some are in the 1977 Act and some are in the common law, are comprehensively set out in a new statutory provision then some consequential changes in the 1977 Act will be required. That Act should, in our view, be confined to the prospective situation, but should not deal with nullity. It should, as it were, be addressed to citizens contemplating marriage and to the marriage officials but not to the courts hearing actions for declarator of nullity. It should also, we think, set out comprehensively at the beginning of the Act all the legal impediments to an intended marriage in Scotland and all the cases where a person domiciled in Scotland is legally incapable of marrying outside Scotland. Clause 20 of the draft Bill contains the appropriate amendments for this purpose. Other minor and consequential amendments to the 1977 Act are explained in the notes on the draft clauses.

Capacity for polygamy

8.33

The new provisions on the legal incapacities, for marriage attaching to Scottish domiciliaries who marry abroad, and on the associated grounds for nullity, would make it clear (a) that a person who is domiciled in Scotland cannot marry if he or she is already married and (b) that a person who is domiciled in Scotland cannot marry a person who is already married. They would, however, like the existing law of Scotland, contain no express prohibition on an unmarried person domiciled in Scotland marrying an unmarried person abroad, even if the marriage is in polygamous form. As the new rules would be exhaustive it would be clear that there was no implied prohibition of such marriages. This would remove a minor source of doubt in Scots law and give effect to a recommendation in an earlier joint report of the two Law Commissions.

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Invalidity under earlier laws

The question of essential invalidity under earlier laws is of practical importance only in relation to the law on the prohibited degrees of relationship, where the law has been gradually liberalised by a series of Acts dating from 1907.

^[61]

One approach is to say that the law in force at the time when the marriage was entered into must apply. This is awkward because it means that anyone considering the validity of a marriage has to investigate what the law was in the past, perhaps many years ago. Nonetheless this was the approach. adopted in the Marriage Enabling Act 1960 which allowed (a) marriage with a divorced wife's sister, aunt or niece and (b) marriage with a divorced husband's brother, uncle or nephew. It was also the approach adopted by the Marriage (Scotland) Act 1977 although as that Act made only the most minimal changes in the prohibited degrees its lack of retrospectivity is of no practical importance.

^[62]

The other approach is to apply the new, more liberal, law retrospectively. The effect is to grant an amnesty to those couples (if there happen to be any) who managed to marry in spite of the earlier laws. This was the approach adopted in the Deceased Wife's Sister's Marriage Act 1907, as amended by the Deceased Brother's Widow's Marriage Act 1921 and the Marriage (Prohibited Degrees of Relationship) Act 1931.

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Part IX Declarators relating to marriage

Declarators of marriage or nullity of marriage

There was unanimous agreement with our provisional proposal that declarators of marriage and declarators of nullity of marriage should be competent in the sheriff courts. There are only about 8 actions for declarator of nullity of marriage a year in Scotland on average and even fewer actions for declarator of marriage.

The draft Bill appended to this report applies the rules on jurisdiction in divorce to these actions.

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.

(Draft Bill, clause 23(1) and Schedule 1 paragraph 2)

An action for declarator of freedom and putting to silence is a hybrid remedy available against someone who falsely asserts that he or she is married to the person bringing the action. The 'pursuer seeks (a) a declarator that he or she is free of the asserted marriage and (b) a decree ordaining the defender to desist from asserting that he or she is the spouse of the pursuer, and putting the defender to silence thereanent.

Declarators of freedom and putting to silence

There may have been a need for this type of nominate action in the days when irregular marriages were common and when there was often doubt as to whether a couple had privately exchanged consent to marry. The action is, however, now virtually unknown. Given the courts' general powers to grant interdict, we do not believe that a special form of action, with special rules of jurisdiction,

All of the responses on consultation, except one, supported our provisional conclusion that the remedy of an action for declarator of freedom and putting to silence should be abolished. The Law Society of Scotland, in supporting abolition, suggested that it might be advisable to make it clear that a repeated false assertion of marriage may be a wrong sufficient to ground an interdict. We think that this is a valuable suggestion and we adopt it. We therefore recommend that

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.

(Draft Bill, clause 23(2) and (3).)

Other declarators relating to marriage

9.6

The courts in Scotland, unlike the courts in England, have a general declaratory power. Accordingly, there is no need for special statutory provisions making it competent to grant, for example, a declarator that the validity of a foreign divorce is entitled to recognition in Scotland.

Most consultees thought that some statutory provision for these declarators would be useful. Some however, doubted the wisdom of expressly providing for their competency. On reconsidering this matter we have concluded that, given the courts' general powers, it would be inappropriate to provide that this type of declarator is competent. Moreover, there seems to be no need to regulate title to sue or the effect of a decree of declarator. These can be left to the general law. There is, however, a real practical problem in relation to jurisdiction. The ordinary grounds of jurisdiction in, for example, section 6 of the Sheriff Courts (Scotland) Act 1907 are not appropriate for such family law declarators. The Civil Jurisdiction and Judgments Act 1982 does not apply to matters relating to status. We therefore recommend that

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.

(Draft Bill, Sch 1, amendments to Domicile and Matrimonial Proceedings Act 1973, section T)

9.8

The effect of the above recommendation, if implemented, would be that the Court of Session-would have jurisdiction in such an action for declarator if either of the parties to the marriage

(a) is domiciled in Scotland on the date when the action is begun; or

(b) was habitually resident in Scotland throughout the period of one year ending with that date; or

(c) died before that date and either

(i) was at death domiciled in Scotland, or

(ii) had been habitually resident in Scotland throughout the period of one year ending with the date of death. ^[12]

The sheriff court would have jurisdiction on. the same grounds as currently apply in divorce actions. ^[13]

We have taken the opportunity, while amending the Domicile, and Matrimonial Proceedings Act 1973, to tidy up the references to certain incidental or collateral orders, some of which have become out of date as a result-of amendments to other legislation. The draftsman has substituted descriptive references for the previous references to specific statutory provisions.

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Part X Litigation between spouses

Introduction

10. 1 At one time spouses could not sue each other in contract or delict. ^[1]This was sometimes said to be based on the idea that the husband and wife were one person in law, but there was also a fear that the courts would be burdened by actions arising out of domestic squabbles and that such litigation would not be in the spouses ^[2]own interests.

The courts departed from this rule in the case of contract, holding that the changes in the legal position of married Women made by the Married Women's Property (Scotland) Act 1920 were inconsistent with the restriction. ^[3]Parliament changed the rule in the case of delict, allowing spouses to sue each other but giving the court a power to dismiss the proceedings if it appeared that no substantial benefit would accrue to either party. ^[4]The question for consideration here is whether this power to dismiss is necessary.

Present law

The present law on actions between spouses in delict is contained in section 2 of the Law Reform (Husband and Wife) Act 1962 which provides as follows.

(1) Subject to the provisions of this section, each of the parties to a marriage shall have the like right to bring proceedings against the other in respect of a wrongful or negligent act or omission, or for the prevention of a wrongful act, as if they were not married.

(2) Where any such proceedings are brought by one of the parties to a marriage against the other during the subsistence of the marriage, the court may dismiss the proceedings if it appears that no substantial benefit would accrue to either party from the continuation thereof; and it shall be the duty of the court to consider at an early stage of the proceedings whether the power to dismiss the proceedings under this subsection should or should not be exercised. "

The power to dismiss conferred by subsection (2) does not apply to proceedings under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. ^[5]

Background to present law

The power to dismiss in subsection (2) of the 1962 Act is based on a recommendation of the (English) Law Reform Committee.

The last part of the Law Reform Committee's recommendation (relating to the interests of the parties) was not included in the Bill put before Parliament because it was recognised that it would be impracticable and undesirable to ask a court to assess in the early stages of an action what would be in the best interests of the parties. That would require an examination of the whole nature of their relationship. As was pointed out in Parliament, securely married couples would be allowed to sue each other, and couples whose relationship had already broken down would be allowed to sue each other, but those whose relationship was in a state of doubt might not be. Indeed, a court would have to ask itself not only about the soundness of the parties' marriage and the likely effect of the action on it, but also about "the advantages or disadvantages of maintaining a married state in the society in which we live.

"if, having regard to all the circumstances, including the conduct of the parties and the nature of the matter complained of, the judge is satisfied that the complaint is not one of substance or that it is not in the interests of the parties that the action should proceed." ^[10]

The "no substantial benefit" formula did not escape criticism in Parliament. It was pointed out that it was vague and would be difficult to apply, and that if there was any real damage, sufficient to justify litigation at all, then compensation for that damage could be said to be a substantial benefit.

^[15]

Assessment of present law

It is anomalous to give a court power to dismiss proceedings because in the judge's view their continuation would result in no substantial benefit to either party. Normally it is for the pursuer or petitioner to decide whether litigation is worthwhile. There are obvious and powerful disincentives to embarking on litigation without legal aid if no substantial benefit is likely to accrue. Civil legal aid is not available unless the Legal Aid Board is satisfied that the applicant has a probabilis causa litigandi and that

"it is reasonable in the particular circumstances of the case that he should receive legal aid." ^[16]

It is not available at all for defamation proceedings. ^[17] A Lexis search of Scottish cases, reported and unreported, in the Court of Session and sheriff courts, since 1962 has revealed no case in which section 2(2) has been referred to'. We know of no case, and those who responded to our discussion paper mentioned none, which did not proceed because of section 2(2) but which would have proceeded in the absence of section 2(2). There is no equivalent of section 2(2) in relation to actions between other near relatives, or between cohabitants, or between any other categories of litigants. Yet the courts are not flooded by pointless actions.

Results of consultation

All but one of the responses to this issue on consultation agreed with our provisional view that section 2(2) of the 1962 Act was anomalous and unnecessary and should be repealed.

Recommendation

10.8

Certain provisions of the 1981 Act have, however, been the subject of criticism and have given rise to practical difficulties. It is with these provisions, rather than the basic policy or structure of the Act, that we are here concerned. We begin with the provisions on dealings with third parties.

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.

(Draft Bill, clause 24(c) and Schedule 2.)

This recommendation is given effect to by clause 24 of the draft Bill which collects together in one provision some rules relating to the legal equality and independence of spouses which currently appear in various places. This enables the whole of the 1962 Act to be repealed in Schedule 2.

Part XI The Matrimonial Homes (Family Protection) (Scotland) Act 1981

Introduction

11. 1 The Matrimonial Homes (Family Protection) (Scotland) Act 1981 implemented, with certain important changes, this Commission's report on Occupancy Rights in the Matrimonial Home and Domestic Violence. ^[1] The basic policy objectives of the Act are to confer occupancy rights in the matrimonial home on the "non-entitled spouse,, who happens not to be the owner or tenant (so that he or she cannot be evicted like a mere squatter or unwelcome guest by the ,,entitled spouse" who is the owner or tenant) and to provide increased protection against domestic violence (in particular by providing for exclusion orders, and interdicts with a power of arrest attached). These basic policy objectives were strongly endorsed when the Bill was going through Parliament. ^[2]Research on the operation of the Act ^[3]and the responses to our discussion paper show that the basic objectives of the Act are very widely accepted. There is, in our view, no question of repealing the Act entirely or of altering its basic structure.

Dealings with third parties

11.3

Introduction. Some protection against dealings, such as a sale of the home, by the entitled spouse is obviously necessary. Otherwise he or she could sell the home to an accomplice and the purchaser could evict the non-entitled spouse. There would be little point, for example, in one spouse's obtaining an exclusion order if the excluded spouse could immediately defeat occupancy rights by selling the home. The Commission's report on Occupancy Rights in the Matrimonial Home and Domestic Violence

The Commission's scheme, which was admittedly likely to be more complicated in its practical operation than the above summary suggests, was not favoured by the government. The following explanation was given in the House of Commons.

confining

"The reasons why we chose not to exercise the matrimonial notice option are basically twofold. First, the Law Commission's view was that if a spouse had lodged a matrimonial notice which indicated her occupancy rights, then that should be an entirely overriding right which gave her total protection as regards occupancy of her home. There are many attractions in this approach, but I think the biggest single unattractive aspect is that it is unlikely that other than a relatively small minority of spouses would have taken advantage of such an opportunity, because of an unawareness of the opportunities existing under the law, but, more importantly, because spouses are unlikely to conceive of the need for such precautions as long as the marriage is working well. By the time the marriage has broken down, it might be too late to start thinking in terms of the lodging of a matrimonial notice. Therefore, it seems sensible and appropriate to have a wider-ranging provision, which will give a high level of protection to the vast majority of spouses, whether or not they have at an earlier date, when the marriage was working quite successfully, anticipated the problems that might arise in the event of marital breakdown.

That, therefore, was the main reason why the Government did not feel that the matrimonial notice approach was suitable. There are also the additional bureaucratic requirements that such a procedure would involve. It would involve very significant increases in staffing in the Department of Registers in terms of dealing with the lodging and processing of matrimonial notices. These and other implications which I mentioned earlier led the Government to conclude that a different approach, as outlined in the Bill, would be suitable." ^[5]

Existing law. The scheme preferred by the government, and now enacted, conferred general protection against dealings, without any need for registration of a notice, and did not provide for dealings in fraud of occupancy rights to be struck down or set aside. Instead the spouse's occupancy rights can continue to be exercised after the dealing and the person acquiring the home or an interest in it is not entitled to occupy it. This achieved the objective of protection without registration but it means that occupancy rights are a potential problem in every conveyancing transaction. The purchaser of any house has to be sure that there are no occupancy rights or that an appropriate consent or renunciation or dispensation is obtained, and cannot rely on the registers. Even a purchaser from an unmarried person has to be sure that the person is unmarried. To make the position of purchasers more tolerable the 1981 Act provides that a purchaser who acts in good faith is protected if there is produced to him or her by the seller

(i) an affidavit sworn or affirmed by the seller declaring that the subjects of sale are not or were not at the time of the dealing a matrimonial home in relation to which a spouse of the seller has or had occupancy rights; or

(ii) a renunciation of occupancy rights or consent to the dealing which bears to have been properly made or given by the non-entitled spouse".^[6]

There is a similar protection for heritable creditors who may, if conditions similar to the above are fulfilled, exercise their normal rights (e.g. their rights to sell on default) under the security and may also apply to 'a court for an order requiring the non-entitled spouse to make any payment due by the entitled spouse in respect of the loan. ^[7]

A further protection for purchasers was added in 1985.

The protection of occupancy rights against dealings applies also to leased property. If the spouse who is the sole tenant assigns or renounces the tenancy without the consent of the other spouse (or a renunciation or a dispensation) the other spouse's occupancy rights are not prejudiced by the dealing. This is a simpler system than that recommended by the Commission in 1980, which would have required the non-entitled spouse to give notification to the landlord of his or her occupancy rights. It does, however, mean that a landlord may find that the property is occupied by someone who is not a tenant and who has rights but no corresponding obligations.

"the entitled spouse has permanently ceased to be entitled to occupy the matrimonial home, and at any time thereafter a continuous period of 5 years has elapsed during which the non-entitled spouse has not occupied the matrimonial home". ^[9]

This means that the purchaser of a house from someone who has owned it, and had exclusive occupation of it, for five years or more does not need to be concerned about the occupancy rights of spouses of former proprietors ^[10]. It also protects the purchaser from an entitled spouse against a delayed assertion of occupancy rights if, for example, there has been a false affidavit or forged consent.

We have referred to the obtaining of a dispensation. This is provided for in section 7 of the 1981 Act which enables a court to make an order dispensing with the consent of a non-entitled spouse to a dealing which has taken place or a proposed dealing if, among other things, the consent is unreasonably withheld. There is a problem about how much specification must be given of a proposed dealing.

^[12]

^[13]

Results of consultation. In the discussion paper we sought views on various options, including a radical change of approach, for reform of the provisions on dealings.

^[14]

Spouses of former owners. One modification to the existing provisions which would have significant benefits, particularly in relation to registration of title, would be to reduce or eliminate the need to be sure that there- are no occupancy rights of spouses of former owners (i.e. owners prior to the person now selling the property) liable to interfere with vacant possession. There is some doubt whether, under the existing law, the spouse of a former owner could ever assert occupancy rights. Clearly the former owner is no longer an entitled spouse and therefore his or her spouse no longer has occupancy rights under section 1 of the Act. Any claim by the spouse of a prior owner must be based on section 6(1) of the Act which provides that "the continued exercise" of occupancy rights

"shall not be prejudiced by reason only of any dealing of the entitled spouse relating to that home"

and that a third party

"shall not by reason only of such a dealing be entitled to occupy that matrimonial home or any part of it. ". (Emphasis added.)

A sale by someone who has bought from an entitled spouse is not a dealing by or of the entitled spouse. A spouse whose claim to occupy the home is challenged or resisted by a subsequent purchaser is not prejudiced by reason only of the entitled spouse's dealing but at least partly by the fact that there has been a subsequent sale by someone other than the entitled spouse. It may perhaps be thought unlikely that the legislature, in enacting a family protection measure, would have intended that the husband or wife of a former owner should be able to come along and put a family out of the house which they had acquired in good faith and at considerable cost, or that, in enacting provisions which were designed to avoid extra demands on the staff at Register House, it would have intended that checks would have to be made in relation to prior owners in connection with registration of title. ^[15] Nonetheless, the official view appears to be that spouses are protected not only against dealings by the entitled spouse but also against subsequent dealings by other people. This causes a great deal of trouble and expense in relation to registration of title. ^[16]. The position is relieved to some extent by section 6(3)(f) of the 1981 Act ^[17] Which says that section 6 does not apply if

"the entitled spouse has permanently ceased to be entitled to occupy the matrimonial home, and at any time thereafter a continuous period of 5 years has elapsed during which the non-entitled spouse has not occupied the matrimonial home. ".

The obvious remedy for the difficulties caused by the doubt about whether section 6 affects subsequent purchasers would be to make it clear that it does not provided that they are in good faith. This could be done by adding a provision to section 6 to the effect that the section does not affect third parties who have acquired the home, or an interest in it, in good faith and for value from anyone other than the entitled spouse or who derive title from any such acquirer. Section 6(3) (f) would still have a role to play in protecting the first purchaser from an entitled spouse against a delayed assertion of occupancy rights by the seller's spouse. The period of five years seems too long, however. The object of the Act is to protect spouses from eviction or the threat of eviction, not to enable them to evict others from houses which were formerly the matrimonial home. We would suggest that a period of 2 years would be quite sufficient to protect a spouse who has been temporarily absent.

11. 12 We do not believe that amendments on the above lines would significantly reduce the protection afforded by occupancy rights to spouses in occupation of the matrimonial home, or only temporarily absent from it. What they would do would be to prevent spouses who had long ceased to occupy a home from putting out bona fide purchasers. That seems to us to be the right policy to adopt in a provision designed to protect occupancy rights. There is no reason why the occupancy rights of the bonafide purchaser and his or her family should be regarded as less worthy of protection than those of the spouse of a former owner.

11. 13 Proposed dealings. Another amendment which could usefully be made to the existing provisions is a clarification of what is meant by a "proposed dealing". In the case of Fyfe v Fyfe, ^¹⁸ the sheriff principal held that

"a proposed dealing' requires that a stage of negotiations has. been reached in which proposals in regard to price and other conditions are being discussed"

and that

"the consent of the non-entitled spouse must specifically relate to a particular dealing or proposed dealing".

He explained that until the terms of such a dealing were known a court could not determine whether the non-entitled spouse was reasonably or unreasonably withholding consent. Accordingly, the husband's application for a dispensation in relation to a proposed sale of the home - was held to have been properly refused by the sheriff, as matters had only reached the stage where he wished to put the house on the market, knowing that there were several prospective purchasers.

11. 14 This view of the meaning of "proposed dealing" is highly inconvenient for entitled spouses wishing to sell the house in circumstances where it is likely that a court would eventually dispense with consent. The seller wants to be able. to make an offer to sell with as few difficult conditions as possible attached. A prospective purchaser is likely to be discouraged if it is a condition of the sale that a court dispenses with the spouse's consent. From both seller's and purchaser's points of view it is clearly desirable that a court should be able to dispense with the spouse's consent before the house is put on the market. Provided that the dispensation relates to a sale at not less than a certain price and within a specified time we can see no risk of prejudice to the non-entitled spouse. A suggestion on these lines was put to us by the Law Society of Scotland in October 1989. The Society also suggested a similar set of provisions in relation to the grant of a heritable security and this too seems right.

11. 15 Court's powers on refusing to dispense with consent. A further amendment might be to give the court power, on refusing to dispense with the consent 'Of the non-entitled spouse to a dealing, to order the non-entitled spouse to make reasonable payments to the owner of the house in lieu of rent and to attach such other conditions to the occupancy as it thinks fit. The effect of refusing to dispense with consent is that the non-entitled spouse can continue to occupy the home. This could cause hardship enough to the entitled spouse or other owner of the house. It would se em to be completely unjustifiable that the continued occupation should be free of charge. The prospects of recovery under common law principles of recompense ^[19] would be poor or non-existent where the occupancy is by virtue of a statutory right and where the statute clearly envisages that occupancy will be gratuitous.

Affidavits. Section 6(3)(e)(i) of the 1981 Act protects a purchaser in good faith if the purchaser has received from the seller, "an affidavit sworn or affirmed by the seller declaring that the subjects of sale are not a matrimonial home in relation to which a spouse of the seller has occupancy rights."

There is a similar provision in section 8 for the protection of heritable creditors. The need to swear or affirm an affidavit (which can be done only before a notary public) can cause considerable inconvenience and irritation. We received representations from the Joint Consultative Committee of the Registers of Scotland Executive Agency and the Law Society of Scotland to the effect that the legal requirement for swearing or affirming an affidavit before a notary public should be relaxed. The Committee mentioned in particular that

"in rural areas people sometimes had to travel considerable distances to avail themselves of a Notary Public's services: in one instance a young man had been injured in a road accident while undertaking such a journey."

The requirement was

"generally regarded as undesirable and increased the costs of conveyancing for those in outlying areas."

The Committee suggested to us that we should include an appropriate recommendation for amendment in our current exercise.

11. 17 We have a lot of sympathy with this suggestion. It fits in with our preferred policy of keeping the basic structure of the 1981 Act but removing as many sources of expense, inconvenience and irritation as possible. We considered several approaches. One would be to allow any solicitor or qualified conveyancer to act as a notary public in relation to an affidavit under sections 6 or 8. That, however, would not solve the problem of sellers in rural areas who might still have to journey to the nearest sizeable town in order to swear or affirm an affidavit. Another possible approach would be to allow affidavits to be sworn or affirmed before a justice of the peace. Again, however, that could cause inconvenience without, perhaps, providing much real protection. The most promising approach, it seemed to us, would be to replace the affidavit by a written declaration subscribed by the seller, and to ensure that the declaration came within the scope of the False Oaths (Scotland) Act 1933. Section 2 of the 1933 Act provides that

"If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and the statement is made

(a) . . .

(b) in a . . . declaration ... which he is authorised or required to make ... by, under, or in pursuance of any public general Act of Parliament for the time being in force ...

he shall be guilty of a crime and offence and shall be liable on conviction thereof to imprisonment for any term not exceeding two years, or to a fine, or to both such imprisonment and fine."

The result would be that the inconvenience and expense of swearing or affirming an affidavit before a notary public would be completely removed. A criminal sanction would, however, remain. Any forms sent out for signature by the seller's solicitor could contain a prominent statement warning that a false declaration could be a serious criminal offence.

11. 18 A minor alteration suggested to us was that the protection of the affidavit in section 6 should extend to all transfers for value. At present it is confined to sales. This seems to us to be a sensible suggestion and, subject to replacing the references to affidavits by references to the new form of statutory declaration, we endorse it.

11. 19 Dealings with tenancies. We have concentrated until now on house sales because that is where the minor irritations caused by the existing law are most apparent. There are also, however, problems in relation to tenancies. Under the existing law a non-entitled spouse's occupancy rights do not prevent the tenant spouse from terminating the tenancy without the other spouse's consent. If he or she does terminate the tenancy ^[20] there is then no tenancy left to transfer. So the non-entitled spouse cannot obtain a tenancy transfer order under section 13 of the 1981 Act. ^[21] However, the continued exercise of that spouse's occupancy rights is not prejudiced by the other spouse's termination of the tenancy. So the spouse continues in occupation, but not as a tenant-a somewhat anomalous situation, which makes it impossible to apply any statutory provisions regulating tenancies. If the owner of the house wishes to terminate the occupancy rights and cannot obtain the occupying spouse's consent or agreement he or she would have to ask the court to dispense with the non-entitled spouse's consent to the dealing under section 7 of the 1981 Act. ^[22] In practice a new tenancy would often be granted to the occupying spouse who would then become "entitled" and would no longer have rights pertaining only to a non-entitled spouse. This would, however, require the occupying spouse's agreement and if that agreement is withheld the former landlord is in an awkward position.

It is unsatisfactory, both from the point of view of the occupying spouse and from the point of view of the landlord, to leave the non-entitled spouse -in a legal limbo. A clarification of the legal position was strongly urged by Scottish Women's Aid, who pointed out that the problem was one which arose frequently in practice. They gave the following two case histories from their recent experience.

(1) Mrs. A went to stay in a Women's Aid refuge because of Mr. A's violent behaviour. While she was away Mr. A went to the District Council, told them his wife had deserted him and gave up the tenancy which was in his sole name. As soon as Mrs. A heard of this from a relative she went to the District Council who said the house had already been re-allocated. Because Mrs. A had children she was allocated another house under the Homeless Persons provisions, but it was a less desirable house in a less desirable area.

(2) Mrs. B was deserted by her husband who went to stay with his mother. Their council house was in Mr. B's name. Some weeks later the children of the family went to live with Mr. B who approached the District Council for housing. They refused as he already had a house (the matrimonial home). However they accepted from him the termination of the tenancy so that they could rehouse him and the children. They have refused to grant the tenancy of the matrimonial home to Mrs. B on the grounds that she is not in "priority need"' because she does not have the children. Nevertheless she has occupancy rights in the house and is refusing to move out. She cannot apply for a transfer of tenancy under the Act because there is no tenancy to transfer. The situation is equally unsatisfactory for Mrs. B and for the District Council."

11.21

One suggestion made to us on consultation was that, if the tenant gives up the tenancy without the consent of the non-entitled spouse, the landlord should be bound to grant a tenancy to the non-entitled spouse. This, however, is not a complete answer. The non-entitled spouse may not consent to a tenancy, which would involve obligations not involved in just exercising occupancy rights. Another suggestion was that the court should be able to transfer the tenancy to the non-entitled spouse under the tenancy transfer provisions of section 13 of the 1981 Act. However, there is the logical difficulty that there is no tenancy left to transfer. Even if this is surmounted by deeming the tenancy to continue for the purposes of section 13 there is the practical difficulty that the non-entitled spouse might not wish to apply for a tenancy transfer but might prefer to sit tight and exercise occupancy rights. It seems to us that what is needed is a provision deeming the non-entitled spouse, so long as he or she is entitled to continue to exercise occupancy rights, to be a tenant under a tenancy in the same terms (apart from the identity of the tenant) as the terminated tenancy. He or she would be treated as a tenant for such purposes as liability for rent and recovery of possession. This would clarify the legal position of both the spouse and the landlord.

11.22

Other minor amendments in relation to dealings. It has been suggested that a curator bonis or a person acting under a power of attorney should be allowed to execute affidavits, consents or renunciations for the purposes of the 1981 Act.

Recommendations on dealings. Our recommendations for minor amendments to the provisions on dealings in the 1981 Act are as follows.

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 other 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.

(Draft Bill, clause 26 and Schedule l.)

Prescription of occupancy rights

11.24

There is no provision in the 1981 Act for occupancy rights, in a question between the spouses, to be lost by the passage of time even if the spouses have been separated. Section 6(3)(f) of the 1981 Act, which we have considered above, operates only to disapply the protection against dealings in a case where the entitled spouse has sold the house, or otherwise ceased to be entitled to occupy it. It has no application where the entitled spouse continues to occupy the house. It follows that a spouse who owns the matrimonial home, or is the tenant of it, could be exposed to an assertion of occupancy rights by the other spouse even after the couple had been separated for, say, 15 years. It is probable that the long negative prescription of 20 years would apply

It would be dangerous to allow occupancy rights to be lost by a short period of non-occupation and separation, as a violent spouse might terminate the other spouse's rights by making him or her terrified to return. We suggested in the discussion paper that a period of a year ought to suffice to enable a spouse to obtain legal advice with a view to seeking an exclusion order

^[25]

There was a mixed reaction to this proposal. Almost all of those who commented on it agreed that there should be some prescriptive period. However, some consultees thought that the period of one year was too short. One consultee thought that one year was too long and that a period of 6 months would suffice. Some consultees thought that our provisional proposal could force spouses into hasty court actions to protect their occupancy rights before the year expired. Another consultee pointed out that occupancy rights provided a way of preventing disposal of the matrimonial home pending a divorce and that this function would no longer be performed if they prescribed too soon after separation. Two consultees expressed anxiety that police officers called to a scene of domestic violence could have great difficulty in knowing whether occupancy rights had prescribed.

11.27

We found the comments on this proposition very helpful. The one thing that seems clear is that there should be some prescriptive period. It is thoroughly unsatisfactory that, say, a wife who is deserted by her husband should be liable to be faced by an assertion of occupancy rights by him ten or fifteen year's later. We accept, however, that the suggested period of one year might be considered too short. The choice of a suitable period must be arbitrary, within a certain range, but we consider that a period of two years would be about right. A spouse who has been separated and living elsewhere for two years is unlikely to have a live claim for an exclusion order and, given that he or she has not been resident in the home for that period, the risk of difficulties for police officers called to deal with domestic disputes would be minimal. The argument about preventing disposals prior to divorce is not conclusive. The primary purpose of occupancy rights is to prevent a spouse from being evicted like a mere invitee, not to preserve assets for division on divorce. There are other legal remedies to prevent or set aside transactions likely to defeat a spouse's claims for financial provision on divorce.

We received a suggestion that section 4(3)(a) of the 1981 Act should be repealed as unnecessary. This provision qualifies the court's obligation to grant an exclusion order if, on the hypothesis that both spouses were in the home,

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.

(Draft Bill, clause 25.)

Exclusion orders

11.29

^[27]

"the making of the order is necessary for the protection of the applicant or any child of the family from any conduct or threatened or reasonably apprehended conduct of the non-applicant spouse which is or would be injurious to the physical or mental health of the applicant or child."

Section 4(3)(a) introduces an element of discretion by providing that a court is not to make an exclusion order if it appears to the court that the making of the order would be unjustified or unreasonable

"(a) having regard to all the circumstances of the case including [various matters such as the conduct, needs and financial resources of the spouses]."

It has sometimes been suggested that if protection is necessary it will never be unjustified or unreasonable to make an exclusion order. ^[28] This, however, ignores the point that protection may be necessary on the assumption that both spouses are in the house and yet quite unjustified and unreasonable in the actual circumstances of the case. Without section 4(3)(a), for example, a court would have to make an exclusion order against a wife whose conduct would be injurious to her husband's health if he returned to the home, even if he was living elsewhere in perfectly satisfactory accommodation and had no need to return to the home. We have no doubt that section 4(3)(a) must remain.

Interdicts

Section 15 of the 1981 Act provides for a power of arrest to be attached to certain interdicts in the matrimonial context. This has proved to be a useful weapon in the fight against domestic violence, often making the task of the police very much easier.

^[29]

(a) restrains or prohibits any conduct of one spouse towards the other spouse or a child of the family, or

(b) prohibits a spouse from entering or remaining in a matrimonial home or in a specified area in the vicinity of the 'Matrimonial home." ^[30]

It has been suggested by the Law Society of Scotland ^[31] and by Scottish Women's Aid ^[32] that this definition is too narrow. Paragraph (b) does not apply, for example, to a house bought or rented by a spouse after separation which is not a matrimonial home, ^[33] or to a refuge where a spouse is staying temporarily, or to a spouse's place of work, or to the school which the parties' children attend. It may be argued that in all of these cases protection may be necessary. On the other hand an interdict without a power of arrest could be obtained against molestation in these places and there is an argument that attachment of a power of arrest should not be used too widely because it might unduly restrict a citizen's freedom of movement. In a small village, for example, a person who could not go near a house at one end of the main street, a shop where his or her spouse worked in the middle, or a school at the other end might be very severely restricted indeed. Against this it could be said that a court, if it had enough discretion, ^[34] would not grant such an interdict and that there would be no harm in at least giving the power to do so in appropriate cases.

On consultation there was considerable support for an extension of the definition of matrimonial interdict on the lines suggested. Indeed one consultee suggested extending the wording of section 14(2)(b) (quoted above) to cover, on cause shown, any specified area. This, however, would be too wide. It would enable a power of arrest to be attached to any interdict against any married person prohibiting him or her from entering or remaining in any place-such as a factory which was the subject of an industrial dispute. There has to be some link in section 14(2)(b) between the place and the applicant spouse. A few consultees mentioned that in practice interdicts under section 14(2)(a) against "conduct" can be so framed as to cover a very wide range of situations. This is true. Nonetheless there may be cases where it is mere presence in, for example, a 'street outside a school which needs to be prohibited rather than any conduct towards the spouse or child.

11.32

The widening, of the scope of matrimonial interdicts raises a question about the way in which section 14(1) of the 1981 Act is expressed. Section 14(1) provides that

"It shall not be incompetent for the court to entertain an application by a spouse for a matrimonial interdict by reason only that the spouses are living together as man and wife."

The negative way in which this is expressed leaves it open to someone to argue that a matrimonial interdict is incompetent for some other reason-for example, that the conduct to be prohibited is not a legal wrong. It is not a legal wrong, for example, to stand in a street outside a school. So applications for some of the extended interdicts now to be available could be opposed on this ground. What is needed is a positive statement that the court may grant matrimonial interdicts, as defined.

11.33

It would clearly be wrong, as the Court of Session has recognised,

It has already been mentioned that a power of arrest must be attached to matrimonial interdicts in some cases whereas in others the court has some discretion. This is governed by section 15(1) of the 1981 Act which provides as follows

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.

(Draft Bill, clause 27(1).)

Powers of arrest

"The court shall, on the application of the applicant. spouse, attach a power of arrest

(a) to any matrimonial interdict which is ancillary to an exclusion order, including an interim order under section 4(6) of this Act;

(b) to any other Matrimonial interdict where the non-applicant spouse has had the opportunity of being heard by or represented before the court, unless it appears to the court that in all the circumstances of the case such a power is unnecessary."

11.35

In the discussion paper we referred to a suggestion that the court should be bound to attach a power of arrest to all matrimonial interdicts.

Section 15(3) of the 1981 Act provides that

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.

(Draft Bill, clause 27(2).)

"If . . . a power of arrest is attached to an interdict, a constable may arrest without warrant the non-applicant spouse if he has reasonable cause for suspecting that spouse of being in breach of the interdict.

There have been suggestions that "may" should be changed to "shall" in this provision. ^[39] We did not support this suggestion in the discussion paper. It did not seem to us to be sensible to place a police constable under a legal obligation to arrest a man or woman in circumstances where there was no need for that to be done. It seemed to us to be unwise to insist on automatic arrest in all cases, even if the breach was trivial and had not upset the "protected" spouse, or even if the breaching spouse had left the scene in a case where the only breach was passing along a street. An obligation to arrest would be particularly unreasonable, we thought, if the breach (for example, being in the matrimonial home) had occurred at the invitation of the protected spouse. It would bring the law, and the police, into disrepute to force a constable to make an arrest if he or she observed the interdicted spouse and the protected spouse emerging happily from the matrimonial home after a mutually arranged visit. ^[40] There could also be cases where it was a matter of doubt whether there had been a breach of interdict, and where a duty to arrest would place a constable in a difficult position. ^[41] The imposition of a statutory duty to arrest would also raise the question of the sanction for breach of that duty. Most consultees agreed with our provisional view that the police should continue to have a discretion in this area. We therefore recommend that

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.

Under the existing law a power of arrest attached to a matrimonial interdict ceases to have effect on divorce.

^[42]

We agree with these suggestions and so did almost all those who commented on this question. There is clearly something artificial about a cut-off on divorce. A divorce changes the legal position but not the factual position and a need for protection may well continue. On the other hand there is a case for not continuing powers of arrest indefinitely. They are liable to get out of date because of changed circumstances, such as a move by the protected spouse to a new address. To clog up police records with dead interdicts also seems undesirable and not in the interests of those in need of current protection. We suggested in the discussion paper that powers of arrest should terminate five years after the date when the power was granted, but should continue for the full five years (unless previously recalled) not withstanding the termination of the marriage.

^[44]

There was general agreement, as we have noted, with the idea that a power of arrest should not terminate on divorce. There were, however, differing views as to the appropriate duration of such a power. Some consultees thought that five years was a reasonable period. Others thought it was too long. One group suggested that 6 months would be long enough, presumably on the view that a power of arrest is meant to deal with a situation of temporary stress and danger and should not continue any longer than is necessary. Another group, however, suggested that the power of arrest should continue indefinitely, on the view that the interdicted spouse could always seek a recall. Another suggestion was that the power should last for 3 years unless renewed on cause shown. It seems to us that this last suggestion strikes the right balance between terminating powers of arrest which are no longer required or appropriate and preserving protection for a reasonable length of time. We accordingly recommend that

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.

(Draft Bill, clause 27(3).)

11. 40 Almost all of those who commented on the question thought that the definition of matrimonial interdict should be wide enough to cover an interdict against molestation of a former spouse or against being or remaining in or near certain places connected with the former spouse, such as the former spouse's home or place of work or the school attended by a child in his or her care. We therefore recommend that

61. The definition of "matrimonial interdict" should be extended to cover a corresponding interdict for the protection of a former spouse.

(Draft Bill, clause- 27(1).)

11.41

The 1981 Act provides quite a complicated procedure for the situation where a person has been arrested under a power of arrest attached to a matrimonial interdict. If the arrested person has not been liberated by the police (on the ground that there is no likelihood of violence to the other spouse or any child of the family)

^[45]

^[46]

^[47]

"(5) On the non-applicant spouse being brought before the sheriff under subsection (2) above, the following procedure shall apply

(a) the procurator fiscal shall present to the court a petition containing--

(i) a statement of the particulars of the non-applicant spouse;

(ii) a statement of the-facts and circumstances which gave rise to the arrest; and

(iii) a request that the non-applicant spouse be detained for a further period not exceeding 2 days;

(b) if it appears to the sheriff that

(i) the statement referred to in paragraph (a) (ii) above discloses a prima facie breach of interdict by the non-applicant spouse;

(ii) proceedings for breach of interdict will be taken; and

(iii) there is a substantial risk of violence by the non-applicant spouse against the applicant spouse or any child of the family,

he may order the non-applicant spouse to be detained for a further period not exceeding 2 days;

(c) in any case to which paragraph (b) above does not apply, the non-applicant spouse shall, unless in custody in respect of any other matter, be released from custody;

and in computing the period of two days referred to in paragraphs (a) and (b) above, no account shall be taken of a Saturday or Sunday or of any holiday in the court in which the proceedings for breach of interdict will require 9 to be raised."

The procedure outlined above is not effective.

⁵²

In the discussion paper we referred to various options for reform of the procedure for dealing with a person arrested under a power of arrest attached to a matrimonial interdict.

^[54]

The police associations which commented were opposed to the suggestion on the grounds that it was contrary to principle to allow detention of this type where there was no breach of the criminal law and no control by a court - and that it would -place the police in an invidious position. Other consultees were also concerned that the police would be placed in an anomalous position and that there would be a threat to civil liberties. In the light of the comments received on this option we think that it would prove controversial and difficult to introduce. We think that there is a more simple and acceptable way of dealing with the difficulties in the section 17 procedure.

11.45

The two main problems with section 17, which everybody agreed was practically unworkable as it stands, are caused by subsection (4) and subsection (5)(b)(ii). Subsection (4) obliges the procurator fiscal, within the very short time available before the arrested person is brought before a sheriff, to take all reasonable steps to intimate to the applicant spouse and to the solicitor who acted for that spouse when the interdict was granted or to any other solicitor who he or she has reason to believe acts for that spouse that criminal proceedings will not be taken. This, as we have seen, is a major source of difficulty. It seems to us that, in practical terms, nothing would be lost and much would be gained by repealing subsection (4). The other troublesome provision is subsection (5)(b)(ii) which requires the sheriff to be satisfied that "proceedings for breach of interdict will be taken" before he or she can order a further short period of detention under section 17(5). As we have seen, it is apparently extremely rare for a sheriff to have the necessary information to be so satisfied. We think that subsection (5)(b)(ii) could also be repealed. The result of these two repeals would be to preserve the basic scheme of the present procedure, including the important roles of the police, the procurator fiscal and the sheriff, but to remove the two blockages in its effective operation. In practice, given the ineffectiveness of the present procedure, there would be no loss of protection for the applicant spouse. We therefore recommend that

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.

(Draft Bill, clause 27(4).)

Definition of matrimonial home

11.46

Section.22 of the 1981 Act, as amended in 1985, defines a matrimonial home as

"any house, caravan, houseboat or other structure which has been provided or has been made available by one or both of the spouses as, or has become, a family residence and includes any garden or other ground or building attached to, and usually occupied with, or otherwise required for the amenity or convenience of, the house, caravan, houseboat or other structure but does not include a residence provided or made available by one spouse for that spouse to reside in, whether with any child of the family or not, separately from the other spouse".

There are a few small points here which could usefully be tidied up. The first relates to a home provided by one spouse for the other spouse to live in separately. As a matter of policy we think that this should not be regarded as a matrimonial home and it has been held in the Outer House of the Court of Session that it is not. ^[55] The existing definition, however, leaves room for doubt and we think that doubt should be removed. A similar doubt exists in relation to a home provided by a third party-say, a spouse's parent-for that spouse to live in separately after the marriage has broken down. Again we think that this should not be a matrimonial home for the purposes of the Act. Consultees agreed, almost unanimously. We recommend that

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.

(Draft Bill, clause 28(b).)

If, as we have recommended earlier, ^[56] matrimonial interdicts were not defined in terms of the matrimonial home then this proposal would not cut down the protection which they can give.

The second point is a very minor one indeed. There is a doubt as to whether the definition of "matrimonial home" includes any garden or other ground or building which is not attached to the house but which is required for its amenity or convenience-for example, a garage situated a short distance from the house.

A third minor reform which has been suggested to us is a provision making it clear, for the removal of any doubt, that where the tenancy of a matrimonial home is transferred from one spouse to the other (voluntarily, or under section 13 of the 1981 Act, or under Schedule 2 paragraph 16 of the Housing (Scotland) Act 1987) with the intention that the home is thereafter to be the residence of the transferee spouse separately from the other spouse, the house should not be a matrimonial home after the transfer. This may well be the position at present but there is room for doubt because the house has been the parties' matrimonial home in the past. We recommend that

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.

(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.

(Draft Bill, clause 28(c).)

Other points on 1981 Act

11.49

We deal later with the rights of cohabitants under the 1981 Act.

11.50

Section 4(4)(b) of the 1981 Act requires the court which makes an exclusion order, on the application of the spouse concerned, to grant an interdict prohibiting the non-applicant spouse

"from entering the matrimonial home without the express permission of the applicant".

It was represented to us that difficulties often arose for the police when consent was given and then withdrawn. It was suggested that the words "without the express permission of the applicant should be repealed. While we can understand the difficulties caused by repeated changes of mind on the part of the protected spouse we do not think that it would be reasonable to remove the possibility of waiving the protection of the interdict. There may be many reasons for permitting the interdicted spouse to enter the home-for example, to collect personal effects, to visit an ill child, to discuss a reconciliation-and it would, we think, be unwise to regard a visit as a breach of interdict if it was made with the express permission of the other spouse.

11.51

Section 15(2) of the 1981 Act provides that a power of arrest attached to a matrimonial interdict does not have effect until the interdict, with the attached power of arrest, is served on the interdicted spouse. We received a suggestion that it should be made clear that service was required even if the interdicted spouse was present or represented in court. We think, however, that this is already clear from the terms of section 15, including section 15(4) which refers to a certificate of service.

11.52

We also received a suggestion that exclusion orders under the 1981 Act should be available, on the application of a social worker or other third party, for the purpose of having a person who was suspected of child abuse excluded from the home where the child is living. There is, at first sight, a plausible argument for removing the suspected abuser rather than the child from the home. However, this has nothing to do with occupancy rights in a matrimonial home and if a remedy of this nature is required it would have to be a separate and distinct remedy. This matter has recently been considered by the Child Care Law Review Group who found that there were significant difficulties, such as enforcement, in the suggestion and did not recommend an independent remedy.

Judicial separation is a remedy for marital breakdown which terminates the spouses' obligation of adherence (i. e. their obligation to live together) and ordains the defender to live apart, but which does not terminate the marriage. It is an older remedy than divorce and was well developed in the canon law before the Reformation. For centuries the only grounds were cruelty and adultery but in 1976 the grounds were changed to (a) adultery (b) intolerable behaviour (c) desertion followed by two years' separation (d) two years' separation plus the defender's consent to decree and (e) five years' separation.

Part XII Judicial Separation

Introduction

The usefulness of judicial separation in Scotland has varied over the years. Before 1938 there was no divorce for cruelty or intolerable behaviour and a decree for permanent aliment could only be obtained along with a decree for separation or adherence. A decree of separation and aliment was therefore an important remedy for abused wives. Before the introduction of legal aid in 1950 another attraction of separation was that it was a more readily accessible remedy for many people. It was available in the sheriff courts, whereas divorce was only available, at greater cost in the Court of Session.

12.3

Before the Married Women's Property (Scotland) Acts of 1881 and 1920 a separation decree had important effects in relation to obligations and property. Property acquired by a wife after she had obtained a decree of separation was excluded from her husband's jus mariti and jus administrationis and, on her death intestate, passed to her heirs as if her husband was dead.

intestate,

after

Succession

The legal reasons for separation actions have now disappeared. Divorce is as readily available as separation, in the same courts and on the same grounds. It is a more effective remedy than judicial separation in relation to property and succession. Those who do not wish to seek a divorce, or who do not wish to do so yet, can obtain all the remedies they need without seeking a judicial separation. It is not now necessary to seek a separation decree in order to obtain aliment. An action for aliment can be raised on its own.

"In the allocation of local authority housing a local authority ...

shall not impose a requirement ...

that a divorce or judicial separation be obtained,". ^[7]

The present position

Separation actions are now comparatively infrequent. The numbers appear to be declining steadily. In the 5 year period from 1985 to 1989 the numbers of actions of separation and aliment raised in Scotland were as follows:

^[12]

^{1985

234

1986

215

1987

174

1988

15.8

1989

116}

There are no statistics, on the number of separation actions which do not include a crave for aliment but it is estimated that the above figures represent about half of all separation actions raised. ^[13] The number of separation decrees granted is considerably less than the number of actions raised. Many actions do not proceed to decree. ^[14] Some may be converted into actions for divorce. ^[15] In some cases the parties may become reconciled. In some cases the client may be satisfied with interim measures obtained to deal with such practical problems as aliment and personal protection and may no longer feel the need to pursue the crave for judicial separation. ^[16]

There are pronounced geographical variations in the use of judicial separation. In most parts of Scotland it is extremely rare. In the five-year period from 1985 to 1989 inclusive there were no separation actions at all in 8 sheriff courts and not more than one a year on average in another 21 sheriff courts .

Most separation actions are raised by women, and most are on the ground of intolerable behaviour.

"Indeed, over half the actions raised in 1989 were raised in just 5 sheriff courts within these sheriffdoms, and a similar pattern can be identified in previous years. " ^[19]

Assessment

The question for consideration is whether there is a place for the remedy of judicial separation in a new family law code. Legally, as we have -seen, it is no . w an unnecessary remedy. A spouse who does not wish to seek a divorce can separate and can obtain protection, aliment and any necessary orders relating to children without seeking a decree of separation. Unnecessary remedies are undesirable. They add to the complexity of the law and make it less efficient. Moreover, the remedy of judicial separation may be considered undesirable in itself, in that it creates a legally sanctioned divergence between the social position and the legal position. The parties are legally ordained to live apart but remain legally married. This has been the subject of adverse comment for over a hundred years.

In the past the main argument for retaining judicial separation has been that it provides a remedy for people who object to divorce on religious grounds.

In the discussion paper we provisionally proposed that judicial separation should be abolished. A majority of those who commented on the issue agreed with this proposal. The minority who favoured retention did so primarily on the ground that it was a useful remedy for those who objected to divorce on personal or religious grounds. However, none of the consultees explained where its usefulness lay. A person who feels that he or she must live apart from his or her spouse but who objects to divorce can simply separate without a court decree and, if necessary. seek appropriate remedies such as awards of aliment or custody or interdict or exclusion orders. A court decree ordaining one spouse to live apart from the other is in itself antithetical to the marriage bond and is unlikely to promote reconciliation. It could hardly be claimed that a fault-based action, in which one spouse sets out all the worst aspects of the other's behaviour during the marriage, is useful from the point of view of the children of the marriage.

12. 10 There is something absurd about the existing grounds for judicial separation, in that three of them (desertion, and the two separation grounds) require the parties to have been already separated for at least two years. ^[29] To ask a court, in such circumstances, to permit the pursuer to live apart and to ordain the defender to live apart seems patently unnecessary. It is not surprising that these three grounds appear to be little used in practice. ^[30]

12.12

Two consultees suggested increasing the legal effects of a separation decree. One suggested that a spouse should be able to seek the same orders for financial provision on a judicial separation as on divorce. We do not think this would be appropriate. It would enable a spouse to seek financial benefit both on the basis that the marriage had ended and on the basis that it continued. For example, a spouse could seek a share in the value of the other spouse's accrued pension rights on the footing that the marriage was over while still expecting to benefit under the same pension scheme as a widow or widower on the footing that the marriage continued. This would be quite unacceptable. Another consultee suggested that the effects of judicial separation on succession should be extended. It is clear that the present law, which covers only separation decrees obtained by wives, and applies only where the wife dies intestate and only to property acquired after the decree, is unsatisfactory.

^[31]

No new arguments were put forward by the minority of consultees who favoured retention of judicial separation. At most, there was a view that some people seem to want to use the remedy and that therefore they should be allowed to continue to do so. This is not a good argument for retaining a remedy which is in fact unnecessary. Legal proceedings are expensive. Legal craves which, in practice, are based almost entirely on allegations of fault on the part of the other spouse are likely to increase bitterness within an already divided family. Unnecessary and potentially embittering remedies should not be provided. Our inclination, therefore, having taken the results of consultation into account, was to confirm our provisional view that judicial separation should be abolished. However, we were concerned that we might have overlooked some strong practical reason for-the fact that some separation actions are still raised, albeit in diminishing numbers. We therefore asked the Central Research Unit of the Scottish Office to carry out some empirical research into the characteristics of separation actions and the views of solicitors with experience of them. This research was carried out in the summer of 1991. The results are set out in a published Central Research Unit Paper.

^[32]

The researcher interviewed a dozen solicitors who had all used separation actions and who all practised in one of the few high-use areas in Scotland. The solicitors identified various situations where a divorce might not be wanted even although the marriage had apparently broken down. The client might have religious objections to divorce; the client might want to keep open the possibility of a reconciliation; the client might want to preserve for as long as possible

"It was the coming of the Matrimonial Homes Act which killed separation as a regularly used tool, in that now with a range of other remedies available people can judicially enforce a state of separation without pursuing a separation action as well."

"The reason for people taking action, apart from to end the marriage, is, to regulate financial matters and my view is that this can be done through individual actions ...You do not need a crave for separation."

"You can now get measures which serve a person's needs more readily (than a judicial separation)."

"There are no legal reasons (for a judicial separation).... If it's a case of not wanting divorce but wanting to seek other orders you just raise ordinary aliment actions etc. There is not really any legal need to tag on a crave for separation unless the client really wants it-there is no point in having to put together a case of unreasonable behaviour."

Three of the solicitors in the sample, however, while acknowledging that it was possible to seek appropriate remedies without also seeking a separation decree, regarded this practice as "untidy" or "incomplete". ^[37] They thought a separation decree was more "presentable" and that people liked "having ancillary craves tagged on to a 'status' action". ^[38] These solicitors positively favoured including a crave for separation. Even solicitors who themselves saw no legal need for a decree of separation would seek such a remedy if the client really wanted it. It seemed, however, that clients were often confused about this. ^[39]

"Clients are often confused-they think they need a judicial separation in order to get a divorce on the grounds of separation. They do not appreciate that it is a court action like a divorce." "There is a great misconception that you need a judicial separation before you can do anything."

Some clients wanted to have fault officially recognised and recorded. ^[40]

"People want to identify the question of fault. It allows them to get on record the allegations of conduct.

"It's an option for a person who does not want divorce but wants a declaration from the court that the marriage

has broken down and that their spouse is wrong."

Some clients wished simply to

"make a statement about the breakdown of their marriage ^[41] "

or to

"get formal recognition of the breakdown of their marriage". ^[42]

Two solicitors saw a use for a separation decree in cases where the criteria for an exclusion order would not be met-for example, where the conduct complained of was adultery. Even if an application, for an exclusion order failed the client had the "comfort of a decree which ordered the other spouse to live apart.

It would be very surprising if the 1981 Act had converted a separation decree into an effective substitute for an exclusion order. However, let us see how the two cases mentioned above would be affected by the 1981 Act. In the first case the wife, who is sole owner or tenant of the home, commits adultery. Her husband obtains a separation decree. The only difference which the 1981 Act makes is that he has occupancy rights. That, however, still does not entitle him to put his wife out of her own home without an exclusion order. If he wants to live apart it is still up to him to leave the home.

"In some cases you may not have enough for an exclusion order. So applying for a judicial separation as well means that you have something if you do not get the exclusion order-it acts as a safeguard."

This raises an interesting question as to the interaction between a separation decree and occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The starting point is that before 1981 a separation decree had no effect on property rights. It affected the personal relations between the spouses, by cancelling the obligation of adherence, but not their rights as owners or tenants. Two examples may be Considered:

1. The wife was sole owner or tenant of the home. She committed adultery. Her husband, before 1981, obtained a separation decree on the ground of this adultery. Clearly, this did not entitle him to put the wife out of her own home. If the husband wanted to live apart from his wife, it was up to him to leave the ho 'me.

2. The wife was sole owner or tenant of the home. The husband committed adultery. - She, before 1981;obtained a separation decree on the ground of the adultery. This made no difference to the parties' rights in the home. The wife could put the husband out. However, she could have done this anyway, even without the separation decree, by virtue of her position as owner or tenant. ^[44]

In short, before 1981 the owner or tenant could stay in the house no matter who obtained the separation decree. In practice, the other spouse would probably have left, or been ordered out of, the home long before the separation decree was obtained. Before 1981 a separation decree was a consistorial remedy, which cancelled the obligation of adherence but had nothing to do with the occupation of any particular matrimonial home. It would not be specifically enforced by imprisonment for contempt of court, or by physical force by officers of court. ^[45] It was not a sort of common law exclusion order. ^[46]

12.17

In the second case the wife is the owner or tenant of the home and the husband commits adultery. The wife obtains a separation decree. Before 1981 this made no difference to occupancy rights. The wife could put the husband out before the decree, and after the decree. Under the 1981 Act, the husband has occupancy rights. The wife could not put him out before the separation decree, unless she had grounds for an exclusion order. Does the separation decree change the position? We think not. It has no effect on the husband's occupancy rights. He still has, by statute,

"a right to continue to occupy the matrimonial home." ^[47]

A separation decree would not oblige the defender to leave a house which he had a right to occupy. The 1981 Act has not changed the nature of a separation decree. It is still a consistorial remedy, operating only on the obligation of adherence, and not a remedy operating on a person's rights in relation to a particular house. A.separation decree still has no role to play as a sort of common law exclusion order for those situations where grounds for an exclusion order under the 1981 Act are not available. It is a false "comfort-a useless "safeguard".

The majority of the solicitors interviewed could envisage no legal problems if judicial separation was abolished. Some, however, thought that judicial separation was the right remedy in some situations and that it should remain as an option that they were able to offer to clients.

Recommendation

12.19

The results of the empirical research did not reveal any strong practical reason for seeking judicial separation where a divorce is not wanted, rather than seeking other remedies such as an award of aliment, or orders relating to children, or an exclusion order or interdicts. The research also confirmed that judicial separation actions have declined steadily and rapidly in numbers in recent years. In some sheriff courts they are virtually unknown. In most parts of Scotland they are now rare. It may be that in time they would wither away of their own accord as more and more people saw' the pointlessness of getting involved unnecessarily in allegations of fault and the futility of seeking a separation decree on the basis of the non-fault separation grounds. However, in relation to a proposed recasting of Scottish family law in a new comprehensive statute or code it is necessary to decide whether to complicate the legislation by including special provisions on a remedy which is unnecessary, obsolescent, and undesirable in that it is likely to hinder, rather than promote, attempts at reconciliation or conciliation. We do not think this would be justifiable. We therefore recommend that

66. Judicial separation should be abolished.

(Draft Bill, clause 29)

Part XIII Bars to divorce

Introduction

13. 1 In our report on Reform of the Ground for Divorce we recommended that the ground for divorce should continue to be the irretrievable breakdown of the marriage but that the periods of separation which can be used to establish breakdown should be reduced from 2 years to 1 year (where the defender consents to the divorce) and from 5 years to 2 years (where the defender does not consent) . As a consequence, divorce for desertion followed by 2 years separation would no longer be necessary. If this recommendation is implemented the ground for divorce would be the irretrievable breakdown of the marriage and this could be established by proving

(a) adultery

(b) intolerable behaviour

(c) separation for one year plus the other party's consent to divorce or

(d) separation for two years.

The main reason for our recommendation was to enable spouses, whose marriages had broken down irretrievably, to use the non-fault separation grounds in a higher proportion of cases, rather than the more hostile and aggressive fault grounds of adultery or intolerable behaviour. It is a serious criticism of the existing law that it encourages people who do not want to wait five years for a divorce to make exaggerated or unfounded allegations of intolerable behaviour against their spouses. We mention the ground for divorce only by way of background. Our concern in this part of this report is only with bars to divorce and, in particular, with lenocinium, collusion and grave financial hardship. The questions with which we are concerned are (a) whether the term "lenocinium" should be replaced, in any new legislation, by a more informative expression, without altering the substance of the law, (b) whether collusion has any role to play, as an independent bar to divorce, in the new divorce law and (c) whether the power to refuse certain divorces on the ground of grave financial hardship should continue to be available.

Lenocinium

13.2

Section 1(3) of the Divorce (Scotland) Act 1976 provides that

"The irretrievable breakdown of a marriage shall not be taken to be established in an action for divorce by reason of [adultery] if the adultery ... has been connived at. in such a way as to raise the defence of lenocinium. "

This is not particularly helpful to a lay person reading the Act. The policy, however, is clear and understandable. A pursuer should not be able to divorce his or her spouse for adultery if the pursuer has actively promoted the adultery in question. For example, a husband who has encouraged his wife to prostitute herself should not be able to found on the adultery in question in order to obtain a divorce. ^[1]

Cases on lenocinium have been very rare but they establish that there must be active promotion of, and not merely passive acquiescence in, the adultery.

lenocinium

lenocinium

We think that the policy of the present law is correct. So long as adultery is used as an indicator of marriage breakdown it must, we think, be right to say that it is not a good indicator of breakdown if it has been actively promoted or encouraged by the spouse founding on it. On the other hand it remains a good indicator of marriage breakdown notwithstanding that the pursuer has merely acquiesced in something he or she had no power to prevent. Our concern is not with the policy but with the terminology. We would be reluctant to see the uninformative word "lenocinium" appear in a new family law code. We suggested in the discussion paper

Section 9 of the Divorce (Scotland) Act 1976 abolished the oath of calumny in divorce actions (and other consistorial actions) but provided that

lenocinium

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.

(Draft Bill, clause 30(1).)

Collusion

"nothing in this section shall affect any rule of law relating to collusion".

The oath of calumny was an oath by the pursuer to the effect that there was no agreement between the parties to put forward a false case or hold back a good defence. Collusion was sometimes defined by reference to the oath of calumny,^[7] which is no doubt why the saving provision in section 9 was thought necessary. The existing law is that collusion remains a bar to divorce. Notwithstanding the abolition of the oath of calumny, collusion is still defined as an agreement to permit a false case to be substantiated or to keep back a good defence. ^[8]The question is whether it has any independent function as a bar to divorce, given that if the court discovers that there is a false case or a good defence divorce will be refused anyway whether or not the parties have colluded.

A typical case of collusion would be one where both parties want -a divorce but do not want to wait for two years in order to obtain one. They, therefore, agree to concoct a false case of adultery. The husband pretends to commit adultery with a woman hired for the purpose and the parties arrange for witnesses to be able to speak to the events observed by them. If the absence of true grounds for divorce does not come to light before decree then, whether or not collusion remains part of the law, the divorce will be granted. If it comes to the court's knowledge before decree of divorce then, whether or not collusion forms part of the law, no divorce will be granted. Any liability to sanctions for contempt of court, perjury or subornation of perjury arises from the facts, regardless of whether or not collusion forms part of the law. Collusion as a bar to divorce has no independent function. We can think of no case where, if collusion were abolished. a judge would say "Collusion has been abolished. Therefore I must grant this divorce even although the parties have clearly combined to present a false case to the court.".

13.7

Collusion has been abolished as a bar to divorce in English law. The Divorce Reform Act 1969 provided that

"nothing ... in any rule of law shall be taken as empowering or requiring the court to dismiss such a petition [i.e. for divorce or judicial separation] ... on the ground of collusion between the parties in connection with the presentation or prosecution of the petition" ^[9]

Most consultees who commented on this issue agreed that collusion served no useful independent function. We think that it should be abolished. However, to avoid any misunderstanding about the effect of abolition it would be as well to make it clear in the legislation that, regardless of collusion, a court should not grant a decree of divorce if satisfied that the pursuer has put forward a false case or the defender has withheld a good defence. We recommend that

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.

(Draft Bill, clause 30.)

Grave financial hardship

13.9

Section 1(5) of the Divorce (Scotland) Act 1976 provides that

"Notwithstanding that irretrievable breakdown of a marriage has been established in an action for divorce by reason of [5 years' separation], the court shall not be bound to grant decree in that action if in the opinion of the court the grant of decree would result in grave financial hardship to the defender. For the purposes of this subsection, hardship shall include the loss of the chance of acquiring any benefit.

This provision is inconsistent with the philosophy of the Act, in that it envisages a marriage which has irretrievably broken down being kept in existence for purely financial reasons. It was enacted before the reform of the law on financial provision on divorce by the Family Law (Scotland) Act 1985 and does not fit well with that law. The 1985 Act is designed to enable the court to make whatever financial provision on divorce is (a) justified by the principles in the Act and (b) reasonable having regard to the resources of the parties. ^[10] The principles in the 1985 Act include the principle that

"a party who at the time of the divorce seems likely to suffer serious financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period." ^[11]

The logical, but perhaps surprising, result is that the power to refuse a divorce under section 1(5) of the 1976 Act is in reality a power to refuse a divorce on the grounds of hardship which it is reasonable or justifiable that the defender should be expected to suffer. This seems unnecessary and undesirable. The approach of the law should be to enable such financial provision as is justifiable and reasonable to be ordered on divorce, but not to give one party a bargaining counter to seek more by threatening to found on section 1(5).

13. 10 There have been very few reported cases on section 1(5). In Boyd v Boyd ^[12] it was held that there was no financial hardship where the periodical allowance awarded to the defender on divorce exceeded the aliment she was receiving before divorce. In Nolan v Nolan ^[13] it was held that the contingent loss of a widow's pension rights (under an occupational pension scheme and the state scheme) coupled with the loss of the contingent right to claim legal rights out of any lump sum received by the husband's estate from his occupational pension fund amounted to grave financial hardship. Divorce was refused, even although the parties had been separated for more than 5 years, and the action was continued to enable the husband to produce better proposals for compensating the wife for these losses. This case was decided in 1979. It illustrates the inconsistency between section 1(5) of the 1976 Act and the new law on financial provision on divorce introduced in 1985. Under the 1985 law the purpose of financial provision on divorce is not to place the spouses in the position in which they would have been had the marriage continued. That used to be the objective in England, and it is that objective which seems to be reflected in the decision in Nolan v Nolan. However, it has now been abandoned in England as unrealistic and undesirable. ^[14] It has never been part of the statute law in Scotland. The approach of the 1985 Act to occupational pension rights is to regard the accrued rights as a form of savings. The proportion applicable to the years between the date of the marriage and the final separation is regarded as matrimonial property and, as such, is subject to the norm of equal division. ^[15] If section 1(5) were to be applied now as it was in Nolan the husband would, in effect-, be asked to make financial provision on a basis which has now been firmly abandoned and which is inconsistent with the principles of the 1985 Act.

Almost all of those who commented on this issue agreed with our provisional proposal that section.1(5) of the Divorce (Scotland) Act 1976 should be repealed. One consultee suggested, however, that the position of elderly spouses in relation to state pensions should be considered, not with a view to refusing a divorce but with a view to ensuring that pension rights were not lost as a result. This is not a question for us to determine. However, we note that it is already the case that a woman who is divorced after she has attained pensionable age and has become entitled to a retirement pension by virtue of her husband's contributions does not lose that right merely because of the divorce: it continues throughout her life.

The rules as to which law governs the validity of a marriage in cases involving a foreign element (eg where a party domiciled in one country married in another) depend partly on statute and partly on common law. The Scottish and English Law Commissions reviewed this whole area in a discussion paper published in 1985

69. Section 1(5) of the Divorce (Scotland) Act 1976 should be repealed.

(Draft Bill, clause 30(3).)

Part XIV Choice of law rules on validity and dissolution of marriage

Introduction

14.1

On the broader question of the basic choice of law rules in marriage the report summarised the results of the consultation and the views of the two Commissions on some of the major questions for consideration but did not recommend legislation. The main reason for this was that there was little dissatisfaction with the basic rules of the existing law, so that the need for reforming legislation was not established. Subsidiary reasons were that the resolution of some of the uncertainties in the existing law was thought to require quite complicated legislation and that to reduce the law to statutory form might prevent its further development by the courts.

^[5]

We have no doubt that a new -Scottish family law code should include choice of law rules on marriage and we think that those rules should be those which commended themselves to both Law Commissions in their joint work on this topic a few years ago, subject to some minor clarifications and developments which are possible in the purely Scottish context. We have kept the English Law Commission fully informed of our proposals and progress in this area since work on the discussion paper began in September 1989.

Proposed basic rules

14.4 Formal validity. We recommend that, subject to the Foreign Marriage Act 1892 as amended (which deals with marriages by British consuls etc abroad), the question whether a marriage is formally valid should be governed by the law of the place of celebration. This is the existing law ^[7]and it was strongly supported on consultation both in the Law Commissions' joint exercise land in response to Discussion Paper No 85. We do not think it is necessary or desirable to prevent a reference of the matter by the law of the place of celebration to some other law (renvoi) in the unlikely event of this occurring. Nor do we think it necessary (although a few consultees suggested this) to state expressly that renvoi is permitted. If, say, the law of the place of celebration provides that foreign nationals can marry in any form permitted by their law then that rule would plainly be itself part of the law of the place of celebration and no express provision to this effect seems necessary. Nor do we think it necessary to spell out that the law of the place of celebration should be applied in the light of any retrospective changes made in it. It may happen, for example, that all marriages celebrated in a particular place over a certain period were formally invalid because of some factor which was not appreciated at the time and that a statute is subsequently passed validating those marriages retrospectively. A reference to the law of the place of celebration after this statute has been passed would have to take account of it. This, we think, would be the result which would follow in the absence of any provision to the contrary ^[8]and we do not think that any such provision to the contrary should be inserted.

Essential validity. We proposed in Discussion Paper No 85 that, subject to a special exception for marriages celebrated in Scotland,

Marriages in Scotland. No matter where the parties are domiciled a marriage solemnised in Scotland is void if either party is under the age of 16 or if the parties are within the prohibited degrees of relationship set out in the Marriage (Scotland) Act 1977.

(renvoi).

^[19]

^[20]

We have already recommended that a tacit mental reservation on the part of one or both of the parties as to the legal effect they intend the ceremony to have should not be regarded as a defect in consent. In some of the cases where this gives rise to difficulty the marriage is entered into for immigration purposes, and one of the parties may well be domiciled abroad. It could frustrate the operation of the proposed rule, in so far as it is designed to prevent abuse of Scottish marriage ceremonies, if a party were ' allowed to plead that by the law of his or her ante-nuptial domicile a tacit mental reservation precluded consent. We therefore recommend that this rule too should apply to marriages entered into in Scotland, no matter what the domiciles of the parties may be.

Parental consent. At present a requirement of parental consent to the marriage of a minor is regarded as a matter of form .

Proposed ancillary rules

The 1985 discussion paper suggested that this question should be left to judicial development. It also, however, set out various possible legislative solutions and invited comments.

^[25]

^[27]

Effect of divorce. It may happen that the law of a person's ante-nuptial domicile does not recognise that he or she is divorced, and therefore regards him or her as still married, whereas the divorce is recognised in Scotland. Indeed the divorce may have been granted in Scotland. This matter is dealt with by section 50 of the Family Law Act 1986 which, broadly speaking, provides that in this situation the divorce granted or recognised in Scotland prevails. Accordingly the person can marry in Scotland,

14. 10 A solution on these lines would mean that the rule of English law requiring consent to the marriage of a person under 18 would continue to be regarded in Scots law as one which did not result in a legal incapacity for marriage, because it applies only to marriages in certain forms. ^[29] Similarly, a rule of a foreign system which merely delayed a minor's marriage without parental consent for a period after consent was refused (in order to give time for second thoughts) would not be regarded in Scots law as giving rise to a legal incapacity because it would not preclude, but would only delay, the marriage of the minor. ^[30] A rule of the law of the domicile which said that a minor could not marry anywhere in any form without parental consent would ' however, be regarded as resulting in a legal incapacity for marriage. ^[31] This, as we have seen earlier, would have meant a different decision in Bliersbach v MacEwanll ^[32] where the question was whether a Dutch minor should be allowed to marry in Scotland without the parental consent required by Dutch law. The result under our proposed rule would be much more consistent with the policy behind section 3(5) of the Marriage (Scotland) Act 1977, which requires foreign domiciliaries to produce certificates of capacity to marry under their own law and which was designed to discourage "runaway" marriages by foreign minors without parental consent.^[33] The proposed rule would also have resulted in a different decision in the much-criticised case of Ogden v Ogden. ^[34]

Public policy. Under the present law there are certain cases where the normal choice of law rules will not be applied because to do so would be contrary to Scottish public policy. For example, an incapacity by the law of the domicile would probably not be recognised if it were based on religion

Annulment of voidable marriages on grounds unknown to Scots law. The question for consideration here is whether, assuming that an initially valid marriage has been entered into

Matters omitted from proposed rules

The Sottomayor v De Barros rule. This is a rule of English law to the effect that an incapacity by the law of one party's domicile will be ignored if the marriage is celebrated in England and the other party is domiciled in England.

A general exception to the rule that formal validity depends on the law of the place of celebration. In England there is a common law exception to the rule that the law of the place of celebration governs the formal validity of a marriage. English law recognises a marriage as formally valid if (a) it is celebrated in circumstances where compliance with the local law is virtually impossible or is celebrated in a country under belligerent occupation where one of the parties is a member of the occupying forces and (b) it complies with the requirements of the English common law .

^[51]

^[52]

The 1985 discussion paper sought views on various options in relation to this common law exception

^[53]

It can hardly be argued that an exception on the above lines is necessary. The need for it has not been obvious in the past. The only Scottish case in which it has been mentioned concerned a marriage in 1780 and the case would have been decided in exactly the same way even if the exception had not been mentioned.

^[54]

^[55]

^[56]

"The ceremony of marriage between the parties mentioned in this Schedule was performed in pursuance of section 20 of the Marriage (Scotland) Act 1977, following a statutory declaration by them that they had gone through a ceremony of marriage with each other on the........day of........19........, at ".

This facility could be useful, for example, in cases where parties have been forced to resort to a ceremony of doubtful validity in a time of war or great civil upheaval. In short, if an exception has not been found necessary so far in Scots law it would certainly not seem to be necessary now.

On the question whether, even if not demonstrably necessary, a statutory exception should be introduced just in case a situation should arise for its application, there are two arguments which point against introduction. The first is that there would be a loss of certainty. People who, for some reason, had not married in the regular form might try to avail themselves of the exception. Although designed for genuine cases of difficulty and hardship, the exception might be founded on in undeserving cases with resulting confusion. The uncertainty caused by the old law on marriages by declaration of present consent would, within this limited area, be re-introduced. That the common law exception itself has not given rise to problems of this nature is not a conclusive counter argument. The statutory exception would be drawn to people's attention by the mere fact of its appearance in the legislation and would not be such a speculative ground on which to rely as is the common law exception, especially in Scotland. The second argument is one relating to the form, rather than the substance, of proposed legislation. The full advantages of codification will be gained only if unnecessary exceptions, qualifications and complications are excluded. This seems to us to be an unnecessary exception.

14.19

The conclusion which we reached in Discussion Paper No 85 was therefore that there should be no exceptions to the rule that the formal validity of a marriage is governed by the law of the place of celebration, other than those provided for in the Foreign Marriage Act 1892 as amended. Only one consultee disagreed with this conclusion, on the ground that an exception might be useful in very rare cases.

14.20

A rule on prospective validation. We have referred earlier to the common type of retrospective validating legislation designed to cure formal defects in certain marriages or to validate marriages void because of, say, error if the error is not founded on timeously. Such rules fall to be regarded, we have suggested,, simply as part of the applicable law and require no separate provision to be made for them.

There is a well-established rule that a Scottish court applies Scots law in a divorce action.

^[58]

subsequente

Choice of law in divorce

There was almost unanimous support for our provisional proposals on choice of law rules on the validity of marriages. We therefore recommend

will

^[60]

Summary of recommendations

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.

(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.

(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.

(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.

(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.

(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.

(Draft Bill, clause 31(5).)

Part XV Choice of law rules on legal effects of marriage

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,

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.

Obligations

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.

Property

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.

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.

It follows from the fact that the effect of marriage in relation to immovable property depends,

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.

Recommendations

15.9

In our discussion paper on The Effects of Cohabitation in Private Law

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).)

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.

(Draft Bill, clause 32(2).)

Part XVI Cohabitation

Introduction

16.1

Scottish private law already makes some provision for cohabitants. A cohabitant can claim damages for the wrongful death of the other cohabitant under the Damages (Scotland) Act 1976,

We recognised in the discussion paper that similar arguments for legal recognition could also be made in relation to other types of couples, such as two men living together, or two women living together. We received submissions pointing out that there was an even stronger argument for some legal intervention in the case of such couples because they did not have the option of marrying each other. We can see the force of these arguments and we are grateful for the carefully reasoned comments submitted to us on this issue. Nonetheless we consider, on pragmatic grounds, that it is likely to be more productive to concentrate on cohabitation as we have defined it above. It is this type of cohabitation which is statistically more important and in relation to which there is currently the greater demand for reform.

16.4

Some consultees expressed concern about the difficulty of applying any definition of cohabitation to the very variable types of living arrangements which couples can adopt. Others were uneasy about the arbitrariness of requiring fixed periods of cohabitation for certain purposes. We have taken these concerns into account and have avoided fixed rules and arbitrary time limits. The rules which we recommend would either be self-limiting (in the sense that a short cohabitation or one involving little mutual commitment would be likely to give rise to minimal legal consequences) or would involve sufficient discretion to enable a court to take account of all the relevant circumstances of the case.

Aliment

16.5

Spouses are bound to aliment each other.

Where there is a child of the relationship, and the cohabitation has come to an end, the provisions of the Child Support Act 1991 ensure that the absent parent's liability for child support includes an element for the maintenance of the parent with care of the child.

In the case of a married couple there is a presumption that each spouse has an equal share in any household goods obtained in prospect of or during the marriage other than by gift or succession from a third party.

Household goods

In spite of this support, we have decided to recommend a more cautious approach. One of the difficulties in applying the presumption to cohabitants lies in deciding on a suitable qualifying period of cohabitation. The presumption would be inappropriate in the case of a short cohabitation, where there might not be any long-term commitment and where each partner may well buy household goods in the expectation that he or she would own them and would keep them if or when the relationship ended. In the discussion paper we suggested a three-year qualifying period of cohabitation. Some consultees were content with that suggestion. Others favoured a longer period. Some, as we have noted, pointed out that any qualifying period would be arbitrary and could be very difficult to apply. We see the force in these submissions and have sought to find a way of accommodating them.

16.9

The answer, we think, lies in the dual role of the presumption in section 25 of the Family Law (Scotland) Act 1985. It is designed, first, to resolve disputes where proof of actual ownership is lacking, as it often is when household goods have been bought many years ago and when neither party can remember, far less prove, who bought them. This role of the presumption seems to us to be appropriate for cohabitants. A qualifying period would be unnecessary. In the case of short cohabitations there would be every likelihood that the parties would remember, and would be able to prove if necessary, who had bought a particular item. The second role of the presumption, in the case of married couples, is to make it irrelevant who actually bought a particular item. This goes beyond the mere resolution of factual disputes and, in effect, introduces an element of common property. The relevant provision is section 25(2) which provides that the presumption of equal shares is not to be rebutted

"by reason only that while the parties were married and living together the goods in question were purchased from a third party by either party alone or by both in unequal shares".

This role seems to us to be inappropriate for cohabitants. It risks imposing co-ownership on them contrary to their wishes.

16. 10 The presumption in section 25 applies to goods "obtained in prospect of or during the marriage other than by gift or succession from a third party". The Law Society of Scotland suggested that the application to goods obtained "in prospect of" a relationship was unsuitable for cohabitants because of the different nature of the commencement of cohabitation and because of the evidential problems to which it could give rise. We agree with this submission. We also think that the wording would be more natural if it referred to "goods acquired during the cohabitation otherwise than by gift or succession from a third party". The draft Bill adopts this formula.

16.11

Section 26 of the Family Law (Scotland) Act 1985 provides that certain savings from housekeeping allowances, and other similar allowances, are to be treated as owned in equal shares. It is in the following terms.

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.

(Draft Bill, clause 34.)

Savings from housekeeping allowance

16.12

"26. If any question arises (whether during or after a marriage) as to the right of a party to a marriage to money derived from any allowance made by either party for their joint household expenses or for similar purposes, or, to any property acquired out of such money, the money or property shall, in the absence of any agreement between them to the contrary, be treated as belonging to each party in equal shares."

This is an updated version of a similar provision, applying only to an allowance made by a husband, which was enacted in 1964. ^[16] It was designed to remedy the type of situation which arose in the case of Preston v Preston. ^[17]

A husband provided his wife with an allowance for the upkeep of the household. She used her own earnings for this purpose and put the sums received from her husband in the bank. A question arose as to the ownership of these savings and it was held that they remained the property of the husband. The wife was regarded as only a stewardess of the funds remitted to her. In the absence of any evidence of donation or special agreement the money which was originally the husband's remained his.

In the case of cohabitants the legal theory which led to the decision in Preston v Preston would apply if in fact an allowance was made by one cohabitant to the other as a housekeeping allowance, to be used by the recipient as a housekeeper. Any savings would belong to the person making the allowance.

In the discussion paper we expressed the provisional view that the equitable considerations behind the presumption of equal shares in savings from a housekeeping allowance applied to cohabitants as well as to spouses.

We are concerned in this section with termination of a cohabitation otherwise than by death. The obvious approach is to consider the law on financial provision on divorce and ask how far the principles found there might be applied on the termination of cohabitation. The principles to be applied by a court in deciding what order for financial provision to make on divorce are that:

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.

(Draft Bill, clause 35.)

The existing provision in section 26 of the 1985 Act does not make it clear that the allowance must be made by one spouse to the other. This is perhaps implicit but we think that it should be made clear in relation to both spouses and cohabitants. The draft Bill does this in clause 35 (for cohabitants) and by an appropriate provision in the schedule of amendments (for spouses).

Financial adjustment on termination o cohabitation

(a) the net value of the matrimonial property should be shared fairly between the parties to the marriage;

(b) 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 the family;

(c) any economic burden of caring, after divorce, for a child of the marriage under the age of 16 years should be shared fairly between the parties;

(d) a party who has been * dependent to a substantial degree on the financial support of the other party should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from the date of the decree of divorce, to the loss of that support on divorce;

(e) a party who at the time of the divorce seems likely to suffer serious financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period. " ^[19]

These principles are supplemented by various rules and definitions. The most important in the present context is that fair sharing of the net value of matrimonial property (which means roughly property acquired by the parties during the marriage and before their final separation otherwise than by gift or inheritance) ^[20] means equal sharing unless there are special circumstances justifying a departure from this norm. ^[21]

We do not favour a comprehensive system of financial provision on termination of a cohabitation comparable to the system of financial provision on divorce in the Family Law (Scotland) Act 1985. That would be to impose a regime of property sharing, and in some cases continuing financial support, on couples who may well have opted for cohabitation in order to avoid such consequences. Almost all consultees agreed with our provisional view that there was no adequate justification for applying to cohabitants the principle of equal sharing of property in section 9(1)(a) of the Family Law (Scotland) Act 1985.

In the discussion paper we favoured the introduction of a principle designed to share the economic burden of child-care after the end of a cohabitation.

as a result of the divorce.

"Suppose that a couple cohabited for 5 years and then separated. They have no child. Should the one who is better off financially be bound to pay aliment (or maintenance) to the other?"

Over three-quarters (76%) of all respondents thought that the one who was better off should not be bound to pay aliment to the other. Although this question was not tied to the criteria in sections 9(1)(d) or (e) of the 1985 Act, the response does suggest a rejection of the idea of a maintenance obligation after the end of a cohabitation. This is particularly interesting in the light of the widespread support by respondents to the public opinion survey for other rights for cohabitants. It was the only question in the survey which resulted in a negative response in relation to improved rights for cohabitants. We therefore do not recommend the introduction of principles for property-sharing or financial provision, on or after the end of a cohabitation, corresponding to the principles in section 9(1)(a), (d) or (e) of the Family Law (Scotland) Act 1985.

We asked in the discussion paper whether, on the termination of cohabitation, a cohabitant should be able to apply to a court for an order for financial provision based on the principle in section 9(1)(b) of the Family Law (Scotland) Act 1985.

^[25]

The principle in section 9(1)(b) could be applied, quite readily and appropriately, to cohabitants. The argument for applying it is that it would be unfair to let economic gains and losses arising out of contributions or sacrifices made in the course of a relationship of cohabitation simply lie where they fall. To allow a remedy for the type of situation covered by section 9(1)(b) would not be to impose on cohabitants a solution based on a particular view of marriage. It would merely be to give them the benefit of a principle designed to correct imbalances arising out of the circumstances of a non-commercial relationship where the parties are quite likely to make contributions and sacrifices without counting the cost or bargaining for a return. Indeed the potential applicability of the principle to cohabitation is recognised in the 1985 Act which includes pre-marital advantages, disadvantages and contributions within the scope of section 9(1)(b).

"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 the family".

If this principle were applied to cohabitants it would enable some provision to be made for

cases where, for example, one party has worked unpaid for years helping to build up the other's business or one party has given up a good pensionable career in order to look after the children of the relationship. The existing common law on unjustified enrichment does not provide a clear or certain remedy in such cases, ^[27] not being designed for intimate relationships where parties may well incur disadvantages as a result of contributions made out of love and affection ^[28] and partly for their own benefit. ^[29] Moreover, the Scottish courts have not yet developed remedies for cohabitants based on implied contracts or trusts, as has been done by courts in some other countries, ^[30] and it probably would not be easy for them to do so at this stage. In any event remedies based on common-law principles of uncertain application would seem to be less satisfactory in this area than specific statutory remedies. ^[31]

that

A majority of those who commented on this question in response to the discussion paper thought that a cohabitant should be able to apply for financial provision on the basis of the principle in section 9(1)(b) of the Family Law (Scotland) Act 1985. There was also strong support from the respondents to the public opinion survey. They were asked the following question.

"Suppose that a couple cohabited for some years. They do not have a child. They have now split up. During the cohabitation one of them worked unpaid to help build up the other's business. Should that person have any financial claim against the other because of this contribution to the other's wealth?"

Over four-fifths (85%) of respondents believed that a person should have such a financial claim, 13% thought that a person should not and 2% were undecided.

16.20

Although a claim based on contributions or sacrifices could often not be valued precisely, it would provide a way of awarding fair compensation, on a rough and ready valuation, in cases where otherwise none could be claimed. We agree with the majority of consultees and survey respondents that such a claim should be possible. We do not think that any qualifying period of cohabitation would be necessary or desirable. The provision would be self-limiting in that in a short cohabitation where there was little or no commitment to a potentially durable relationship there would be likely to be fewer qualifying contributions and sacrifices.

16.21

It seems clear that a claim should have to be made within a certain time after the end of the cohabitation. Any period is arbitrary but we think that, in the interests of discouraging stale claims and allowing parties to a terminated cohabitation to know where they stand, the time limit should be fairly short. We would suggest a period of one year.

So far as questions of jurisdiction, procedure and the powers of the courts are concerned we think that

(a) a court should have jurisdiction to deal with a claim under the proposed provision if it would have had jurisdiction to entertain an action of divorce between the parties

(b) the procedure should be regulated by rules of court

(c) the court should have power to make an order for the payment of a capital sum, and should have power to make an interim award, an order for the payment of the capital sum by instalments, and an order for a deferred payment.

We do not think it necessary to provide for orders for the transfer of property in this connection. The claim is akin to a claim based on unjustified enrichment and an award of a capital sum ought to be sufficient to enable justice to be done. This also simplifies the legislation. An order for a transfer of property might have been an appropriate remedy if we had been recommending a sharing of the net value of certain property on the ending of a cohabitation, on the lines of section 9(1)(a) of the Family Law (Scotland) Act 1985, but we are not.

16.23

In the discussion paper we raised the question whether a surviving cohabitant should succeed on intestacy to his or her deceased partner. We examined this question in some' detail, distinguishing between long and short cohabitations, between cases where there had been or had not been a child of the relationship, between cases where there was or was not a surviving spouse, and between cases where the deceased was or was not survived by other relatives. Given the need, in this situation, for some qualifying period of cohabitation and given the various qualifying periods possible, the range of permutations was extensive. Perhaps for this reason the results of our consultation were inconclusive. There was majority support -for intestate succession rights for a cohabitant where the cohabitation had lasted for ten years or more and had been terminated by the death. Most consultees considered that in such cases of long cohabitation, whether or not there had been a child of the union, the cohabitant should succeed on intestacy in preference to all other claimants except a surviving spouse. However, there were those who saw difficulties and dangers in conferring fixed rights of intestate succession on cohabitants even in such cases, including difficulties in proving the duration of the relationship and the danger of spurious claims. On the other hand there were those who argued that a long-standing cohabitant should be preferred to a long-separated spouse. There was less support for rights of intestate succession for the surviving cohabitant where the cohabitation had lasted less than ten years. In relation to such shorter cohabitations opinion was sharply divided even when it was assumed that there had been a child of the union.

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(10) 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.

(Draft Bill, clause 36.)

We have referred, at the end of paragraph (a) above, to the interests of the other party or of any child of the family. This is a slightly narrower formula than that used in section 9(1)(b) of the 1985 Act which refers to "the interests of the other party or of the family". We considered using the 1985 Act formula but came to the conclusion that it was too vague and potentially too wide. Would it cover the wider family of, say, brothers, sisters, uncles.,, aunts and cousins? Should it apply in such cases if there was no benefit to the other partner in the relationship? Why should one partner be liable to the other if the other has, of his or her own volition, incurred costs in looking after an ill brother or parent who lived nearby. Having decided to refer, more precisely, to children of the family in the context of cohabitants we concluded also that the same change ought to be made in the Family Law (Scotland) Act 1985. This is done in the schedule of amendments in the draft Bill. This would not necessarily preclude a claim by, say, a wife who had given up work to look after an old parent of the husband but she would need to show either that her contributions in doing so had been of economic advantage to the husband or that the disadvantage suffered by giving up work had been in his interests, as it very often would be.

Discretionary provision on death

16.24

16.25

Respondents to the public opinion survey were also asked about possible rights of intestate succession for cohabitants. The first question was as follows.

"A man and a woman have cohabited for more than 10 years and have two children. The man has now died suddenly without leaving a will. He is not survived by a wife or any other relatives. His property is worth £20,000 in all. Should the property go to the cohabitee, to the children or to the cohabitee and the children?"

Over two-thirds of all respondents (68%) believed that the property should go to the cohabitant and the children, 17% thought it should go to the cohabitant and 13% thought it should go to the children. 2% claimed to be undecided. Where the same hypothetical couple had been cohabiting for only 3 years when the man died, 64% of respondents thought that the property should go to the cohabitant and children-not a significantly lower number than when the period of cohabitation was 10 years-15% thought it should go to the cohabitant and 18% thought it should go to the children. Respondents were also asked about a situation involving no children but a surviving spouse.

"A man and a woman have cohabited for more than 10 years. They have no children. The man was married to someone else, when the couple started cohabiting and has never obtained a divorce. The man has now died suddenly without leaving a will. He is survived by his cohabitee and his wife, but not by any other relatives. His property is worth £20,000 in all. Should his property go to the wife, the cohabitee or to the wife and the cohabitee?"

Almost half of all respondents (47%) favoured an even division between the wife and cohabitant, 27% thought the property should go to the cohabitant and 19% thought it should go to the wife. 7% expressed no opinion. A further question dealt with the situation where there was a surviving cohabitant and an adult son of the deceased by a former marriage (now ended by divorce). The preferred solution in this case was for a division between the cohabitant and the adult son. The shorter the period of cohabitation, the more support there was for the property going to the son alone.

16.26

It is clear from the results of our consultation and public opinion survey that there is considerable support for giving cohabitants some succession rights on intestacy. Beyond that, however, no clear pattern emerges. In some common situations the preferred response of members of the public would appear to be that the cohabitant should take a share of the estate along with other claimants, such as a surviving spouse or children, but not the whole of the estate.

16.27

In relation to testate succession our provisional view in the discussion paper was that there was no justification for giving a cohabitant a claim for legal rights (or legal share

In our report on Succession we rejected, in the light of consultation, the idea that a discretionary system of family provision might replace a system of fixed legal rights, or legal shares, for spouses and children.

³⁹

^[40]

de facto

⁴¹

^[42]

The main advantage of a discretionary system for cohabitants is that it can take account of the widely differing circumstances of different cases, including the duration of the cohabitation, the presence of children, the rights or claims of a surviving spouse (if any), the rights of other relatives (if any), the terms of the deceased's will and the date when it was made, the extent of any contributions or sacrifices made by the surviving cohabitant which were to the benefit of the deceased, and so on. This flexibility is probably of more value in cohabitation cases than in any other class of case. One disadvantage is that a court application is necessary. However, where the alternative is no rights at all, that is unlikely to be perceived as a serious disadvantage. In practice, cases will often be settled without the need for court proceedings. Another disadvantage is that a widely framed discretionary provision can be difficult for courts to apply. Again, however, that is the price which has to be paid for a flexible discretionary system. The experience of countries which have had discretionary systems for many years suggests that they work well enough in practice. The tendency has been to expand, rather than restrict, their scope. ⁴⁵Where, as in the case of a spouse, there is a choice between a system of fixed rights and a system of discretionary provision the advantages of a system of fixed rights appear to us to outweigh the advantages of a discretionary system. Where, however, the relationship giving rise to the claim is of a less certain character and where, accordingly, the choice may have to be between a system of discretionary provision and no provision at all, we think that the disadvantages of a discretionary system are tolerable. We have therefore concluded that we should now recommend the introduction of a system of discretionary provision for a surviving cohabitant out of the estate of the deceased cohabitant.

^[44]

16.30

In devising a suitable scheme we have considered the laws of England and Wales, and of various Commonwealth countries. We have not, however, followed any one non-Scottish model in all respects, mainly because we are concerned with one narrow case-the surviving cohabitant-whereas the other systems we have examined are concerned also with spouses and children and other cases. The nature and scope of our recommendations has enabled us to opt for a simpler system than some of those we have examined. In particular, we do not propose to include power to order periodical payments. Such a power is given by the English legislation

^[46]

^[47]

So far as jurisdiction is concerned, the close connection with succession suggests that the domicile of the deceased (which is the normal basis of jurisdiction in succession matters) should be the connecting factor. We suggest that the Court of Session should have jurisdiction if, at the date of death, the deceased was domiciled in Scotland and that a sheriff court should have jurisdiction if, at the date of death, the deceased was domiciled in the sheriffdom. In addition to the Court of Session, the sheriff at Edinburgh should, we suggest, have jurisdiction if the deceased was domiciled in Scotland when he died but cannot be assigned a domicile in a particular sheriffdom. These rules are similar to rules in the Succession (Scotland) Act 1964

^[48]

Succession.

^[49]

Title to apply should be confined to a person who was, immediately before the deceased's death, living with him or her as husband and wife (whether or not pretending to be married) although not actually married to him or her. The criterion should be essentially the same as that in the Damages (Scotland) Act 1976

^[50]

^[51]

The ground of application should, we suggest, be that the disposition of the deceased's estate was not such as to make such financial provision for the applicant as it would be reasonable to expect the applicant to receive having regard to all the circumstances of the case

^[52]

(a) the length of the cohabitation

(b) the existence of any children of the relationship between the applicant and the deceased or of any children treated by them as children of their family

(c) the size and nature of the deceased's net estate

(d) any benefit received, or to be received, by the applicant on, or as a result of, the deceased's death otherwise than out of his net estate

(e) the nature and extent of any other rights against, or claims on, the deceased's net estate ^[53]

(f) the nature and extent of any contributions made by the applicant from which the deceased has derived economic advantage

(g) the nature and extent of any economic disadvantage suffered by the applicant in the interests of the deceased or of their children.

So far as the powers of the court are concerned we suggest that the court should be given power, if the above ground is established, to make such order, if any, for financial provision for the applicant out of the, deceased's net estate as it considers reasonable. In appropriate cases the award might extend to the whole net estate. The court should have power to order payment of a capital sum or a transfer of property or both. It should have power to order the payment to be in instalments, or the payment or transfer to be deferred, or any combination of these orders. It should also have power to order interim payments, in appropriate cases. It should be possible, on a change of circumstances after the order, to vary the order for payment by instalments or for payment or transfer at a deferred date, but not so as to alter the total amount awarded.

16.35

We think that it is important that claims by cohabitants should not be allowed to delay unduly the administration of estates. For this reason we favour a time limit on applications of six months from the date of death, with power to the court to allow late applications on cause shown, for example, if a later will is discovered after the expiry of the limit which revokes an earlier will in favour of the cohabitant, or if the executor or relatives have led the cohabitant to believe that a reasonable provision would be made and then refuse any payment after the time limit has expired. Executors, however, should not be liable for having distributed any estate without taking account of the possibility of a claim being made, and allowed, later than 6 months after the date of death.

^[54]

Any award to a cohabitant under these provisions should be paid out of the net estate

^[55]

^[56]

We therefore recommend that

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.

(Draft Bill, clauses 37 and 38.)

Occupancy rights and protection from violence

16.38

A cohabitant who is not the owner or tenant has no automatic occupancy rights in the family home under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. However, he or she can apply to a court for a grant of occupancy rights for a period of up to six months, which can be extended for a further period or periods but not by more than six months at a time.

In the discussion paper we said that we would not be in favour of extending to cohabitants the existing provisions of the 1981 Act relating to dealings but invited views on whether some other form of protection against, say, a sale of the house by the other cohabitant might be provided.

^[58]

The existing position with regard to interdicts against domestic violence to which a power of arrest can be attached ("matrimonial interdicts") is, however, unsatisfactory in relation to cohabitants. The protection of a matrimonial interdict is available only if a cohabitant has obtained a grant of occupancy rights from a court, or if both cohabitants are entitled, or permitted by a third party, to occupy the home.

^[60]

^[61]

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.

(Draft Bill, clause 39.)

Life Assurance

Insurable interest. A person effecting a policy of assurance on someone else's life must have an insurable interest in the other person's life.

^[62]

^[63]

^[64]

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.

(Draft Bill, clause 40.)

The Association of British Insurers was, for administrative reasons, strongly in favour of any reform being on a United Kingdom basis. We do not consider, however, that a clarifying provision, which would enable existing practices to be continued on a more secure basis, need create any difficulty in this respect. We do not think, therefore, that a provision on the lines suggested need await a corresponding provision in English law.

16.43

Married Women's Policies of Assurance (Scotland) Act 1880. Section 2 of this Act, as amended,

Our provisional proposal that the benefits of the 1880 Act should be extended to cohabitants was supported by virtually all of those who commented on it. The Association of British Insurers, while supporting the proposal, again suggested that equivalent changes should be made to English law at the same time. However, given that there is already separate Scottish legislation on this subject we do not consider that this useful minor reform of Scots law need await corresponding changes in England.

16.45

Where cohabitants have the foresight to attempt to regulate by contract the questions of property and finance arising out of the cohabitation, it might be thought that the policy of the law should be to give effect to their arrangements. There is, however, a possibility that at least some contracts between cohabitants would be held to be illegal and unenforceable.

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.

(Draft Bill, clause 41.)

We have taken the opportunity presented by the draft Bill to include a provision repealing section 1 of the 1880 Act, which is now unnecessary. It is based on notions of married women's property and married women's contractual capacity which have long ceased to be reflected in the law. ^[71]

Cohabitation contracts

^[72]

^[73]

"A contract having as its object the furtherance of illicit sexual intercourse is illegal. Thus a bond granted to a woman to induce her to submit to intercourse, or to reward her for having submitted, cannot be enforced. Where a bill was given to induce a man to take back his divorced wife-there being no provision that he should remarry her, and the agreement being in effect that he should live with her as his mistress-opinions were given that this consideration amounted to turpis causa. And neither a bond nor a legacy given or promised as the price of continued illicit intercourse can be enforced. On the other hand, there is no legal objection to a provision made for the woman after the illicit intercourse has ceased. And the fact that A. and B. were living, and continued to live, in adultery, was held not to invalidate a mutual will, so as to deprive a third party of a benefit under it. "

The cases cited in support of these propositions all- date from the 19th century or earlier and it is to be hoped that a court today would not regard a contract between cohabitants relating to aliment, property or other such matters as contrary to public policy. Given that cohabitation is already recognised for various legal purposes (including occupancy rights in the matrimonial home,^[74] succession to certain tenancies ^[75] and damages on death ⁷⁶) such a view would be highly questionable. The typical cohabitation relationship nowadays is not one of female, or male, prostitution but is a reciprocal arrangement for living together, supporting each other and sharing important areas of life, 'Which is often indistinguishable from marriage from the factual point of view. Whether legislation is necessary on this point is open to question ^[77] but if there is any legal doubt which might deter cohabitants from making effective contractual arrangements relating to property or financial matters then it ought to be removed. The Committee of Ministers of the Council of Europe adopted a recommendation on 7 March 1988 that governments of member states should take the necessary measures

"to ensure that contracts relating to property between persons living together as an unmarried couple, or which regulate matters concerning their property either during their relationship or when their relationship has ceased, should not be considered to be invalid solely because they have been concluded under these conditions.". ^[78]

In the discussion paper we suggested that a contract between cohabitants or prospective cohabitants should not be void or unenforceable on any ground if it would not have been void or unenforceable had they been spouses or prospective spouses. ^[79] Almost all consultees agreed with this suggestion, although one criticised the technique of using spouses as the criterion and preferred the type of wording in the Council of Europe recommendation. We accept this criticism. There is no need to assimilate cohabitants to spouses in this context and it could produce the wrong results if there were ever to be special restrictions applying to spouses only. We therefore adopt the type of approach used by the Council of Europe and recommend that

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.

(Draft Bill, clause 42.)

Opting out

On consultation a' number of people suggested that, if cohabitation were to have certain legal consequences, cohabitants should be able to opt out of them. We have not included any specific provision on opting out in our draft Bill because we do not think that it is necessary given the nature and limited extent of our proposals. Cohabitants could, for example, agree in advance on the division of household goods and thereby, in effect, opt out of the provision on this matter which, in any event, is only a presumption.

^[80]

^[81]

^[82]

Part XVII Illegitimacy

Introduction

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.

The 1986 reform

17.2

The Law Reform (Parent and Child) (Scotland) Act 1986, which implemented this Commission's report on Illegitimacy,

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,

"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.

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.

Completing the task

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.

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]

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]

^[14]

^[15]

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).

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.(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.

Coats of arms

17.11

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.)

Domicile of children

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.

The Scottish and English Law Commissions made joint recommendations on the law of domicile in 1987.

^[19]

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)

Choice of law rules

The existing choice of law rules on legitimacy, illegitimacy and legitimation are uncertain

^[20]

The rules of jurisdiction and recognition and enforcement of foreign judgments in relation to aliment are very largely statutory.

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)

Part XVIII Aliment: choice of law rules

Introduction

18.1

There is a remarkable dearth of authority on choice of law in relation to the alimentary obligation. The tendency has been for Scottish courts simply to apply Scots law, often without any consideration of private international law questions.

gap in the statute

Present law

fori

lexfori

lex loci

Jelfs v Jelfs

The Maintenance Orders (Reciprocal Enforcement) Act 1972 contains special *Choice of law rules for the purposes of proceedings under Part 11 of the Act for the obtaining and registering of provisional orders. Section 21 defines a maintenance order as an order for the periodical payment of sums of money towards the maintenance of a person whom the person liable to make the payment is, "according to the law applied in the place where the order was made, liable to maintain". Section 7(2) of the Act provides that a Scottish court asked to confirm a provisional order made by a court in a reciprocating country must recognise those defences, and only those defences, available under the law of that country: a statement of the defences available is sent with the provisional order and must be accepted as conclusive. Similarly, under section 3(5) of the Act, the documents sent from a sheriff court which has made a provisional order against a defender resident in a reciprocating country must include a statement of the defences available under Scots law. The scheme of this part of the Act is that the law of the court making the provisional order applies: given the rules on jurisdiction under Part 11, this will also be the law of the pursuer's residence.

The Hague Convention

18.4

The Hague Convention of 1973 on the Law Applicable to Maintenance Obligations has not been signed by the United Kingdom.

The conclusion which we reached in the discussion paper was that the practical effects of a suitably modified version of the Hague rules would be almost the same as those which would be achieved by a simple provision to the effect that a Scottish court should apply Scots law in dealing with any claim for aliment. As the latter solution would be simpler and easier to apply, as it would be directly in line with current practice throughout the United Kingdom, and as it received unanimous support on consultation, we recommend that it be adopted.

Recommendation

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.

(Draft Bill, clause 43)

Part XIX The legislation required

The draft Bill

19.1

The draft Family Law (Scotland) Bill appended to this report would, if enacted, implement the recommendations made in this report and make other minor and consequential amendments. In some clauses of the draft Bill the draftsman has re-enacted existing provisions in a modified form, rather than create a patchwork of amendments. Where this has been done it is mentioned in the notes on the draft clauses. These notes also explain the reasons for any minor or consequential amendments which have not been mentioned already in the preceding parts of this report. The draft Family Law (Scotland) Bill appended to this report is a major law reform measure in its own right, but it is also part of a wider process of reform.

Other developments

19.2

Important developments are currently taking place in relation to child care law. A Review Group was appointed by the Secretary of State for Scotland in 1988

"to identify, in the light of developments since the implementation of the Social Work (Scotland) Act 1968, options for change and improvement in child care law which would simplify and improve arrangements for protecting children at risk and caring for children and families in need.".

The Review Group reported in 1990.^[1]Its report contains 95 recommendations, not all of which would require legislation. A White Paper setting out the government's proposals for legislation is expected in the autumn. Another important current development is the Inter-Departmental Review of Adoption Law being carried out in the United Kingdom. In Scotland this is being handled by the Social Work Services Group of the Scottish Office. It is based on a series of four discussion papers and is still at the consultation stage. Other developments of potential relevance to reform of the law on child care and protection are the inquiry by Sheriff Kearney into matters relating to child care in Fife; the inquiry by Mr Skinner into certain aspects of residential child care; the review by Mr Finlayson of the role of reporters under the Social Work (Scotland) Act 1968; and the public inquiry under Lord Clyde into the circumstances surrounding some controversial child protection measures in Orkney. It remains to be seen whether these reviews and inquiries will result in recommendations for important changes in child law.

The need for a coherent approach

It seems clear that the public interest would be better served by a coherent rather than an incoherent approach to the reform of Scottish child and family law. This has been appreciated for some time. We had an observer at the meetings of the Scottish Child Care Law Review Group and we have been consulted regularly by the Social Work Services Group in connection with the adoption law review. We in turn have tried to keep the Social Work Services Group fully informed about the progress of our work in relation to the private law aspects of parental responsibilities and rights. We are aware that some of the provisions in the draft Bill attached to this report which touch on matters of child care or adoption law must be regarded as interim measures, pending the outcome of the other developments mentioned. There is no reason, however, why the various reform developments should not eventually be brought together into a coherent whole.