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FAMILY LAW IN SCOTLAND.

Updated: Aug 16

Introduction


Sources of family law


Family law in Scotland is found mainly in Acts of Parliament (statutes) passed by the UK Parliament and also in cases in which the courts have interpreted and applied statute law and case law. Most family law statutes applicable in Scotland apply only to Scotland (indicated by the word ‘Scotland’ in the title), but some apply to the whole of the UK. However, family law is a devolved matter under the Scotland Act 1998, and in future will be dealt with by the Scottish Parliament. Some areas of family law are still governed by the judge-made law alone, but this is gradually being replaced by statute. Rules relating to practice and procedure are laid down in Rules of Court.

Courts


In Scotland, there is no ‘family court’. Proceedings related to family law cases are commenced in either the sheriff court or the Court of Session, although the latter retains exclusive jurisdiction in a few areas, e.g., in respect of declarators of nullity of marriage, registration of foreign custody orders. Cases are heard in the sheriff court. Most child protection and juvenile justice cases are dealt with in the Children’s Hearing System in which a panel of three lay persons examines the allegations and family circumstances of the case and discusses these with the family, and then decides on the appropriate outcome. Appeal from the Children’s Hearing lies to the court.

Adjudication of disputes


Adjudication of family disputes, except for Children’s Hearings, takes place within an accusatorial rather than an inquisitorial system. Before reaching a decision, the judge takes a neutral decision. By negotiation between parties’ lawyers or agreement between the parties, many cases are settled out of the court. Parties are referred to mediation services to encourage them to reach amicable agreements for the future care of children.

Lawyers


Lawyers are either solicitors or advocates, although a few are ‘solicitor-advocates’. Most family cases are dealt with by a solicitor who advises, negotiates and, if necessary, acts on behalf of the client in the sheriff court. The solicitor may instruct an advocate, who may advice or act for the client in the court where the case involves complex issues of law or fact. Client employs a solicitor who represents him or her. He or she is bound by the client’s instructions. The advocate is neither employed by the client nor bound to be instructed by the client.

Legal aid


Legal aid is administered by the Scottish Legal Aid Board. Availability of legal aid depends on the client’s means and proof of probable cause. Legal costs and expenses (costs) are paid to the lawyers after the recovery of property. For ‘do-it-yourself’ divorces full legal aid is not available, although a pursuer can receive restricted legal aid to cover limited steps in the proceedings. Full legal aid is available for undefended and defended divorces, interdicts, financial orders, orders relating to children and any other matters raising a substantive point of law. Preliminary advice and legal assistance is available to parents for representation before the Children’s Hearing but Legal aid is not available. Legal Advice and Assistance is a very restricted form of Legal Aid on a simple means test which means that only those on the lowest incomes qualify. The state pays if the hearing appoints a separate representative for the child (a safeguarder).


Domicile


English law recognizes different forms of domiciles:

(i) Domicile of origin. This is the domicile which a person acquires at birth, and is the country in which his parent is domiciled at the date of birth.

(ii) Domicile of dependence. Until the age of 16 (or later if that person lacks mental capacity), a person’s domicile is dependent on that of the parent. After the age of 16, a child can acquire an independent domicile.

(iii) Domicile of choice. This is determined by whether a person has an intention to reside permanently in a country where he is factually present. The burden of proving a change of domicile is on the person making that allegation.

Marriage


THE CREATION OF A VALID MARRIAGE


Introduction


The law on marriage is laid down in the Marriage (Scotland) Act 1977.

To contract a valid marriage, the parties must have the capacity to marry, and, except for irregular marriages, must comply with certain formalities.

Capacity to marry


To contract a valid marriage the parties must:


(i) be over the age of 16. A marriage taking place anywhere in the world where a party under 16 and domiciled in Scotland is void.

(ii) not be within the prohibited degrees of relationship. Marriages between certain persons related by blood or marriage are forbidden.

(iii) not be already married.

(iv) be capable of understanding the nature of the marriage ceremony and of consenting to it. Incapacity may be due to mental illness, mental deficiency or any other cause.

(v) be respectively male and female. Gender is determined at birth and, while an error at birth can be corrected, a subsequent change of gender is not recognized, i.e., a man who has undergone ‘sex change’ treatment is still regarded as male and cannot marry another man.

Either party to a marriage can apply to the Court of Session for a declarator that he/she is free to marry.


Formalities


Except in the case of ‘irregular marriages’, all marriages, whether civil or religious, must comply with certain preliminary formalities. Thereafter, solemnisation of the marriage differs according to whether the marriage is civil or religious.


PRELIMINARY FORMALITIES FOR ALL MARRIAGES


Parties are not required to reside in Scotland for a period of time prior to the marriage. A third person can send the marriage notice by post. One party to a religious marriage must collect the marriage schedule; presence of both parties is must at the marriage ceremony. A certificate of capacity to marry is required by the party domiciled outside the UK.


Each party must submit a notice of intention to marry (the ‘marriage notice’) to the direct registrar in the registration district where the marriage is to take place. A fee and prescribed documents must accompany the marriage notice.


After receipt of marriage notice, the date of receipt of particulars must be entered in the marriage notice book. The names of the parties and the intended date of the marriage must also be entered in a list which is displayed in a prominent place at the registration office.


SOLEMNISATION OF THE MARRIAGE


Civil ceremony


A civil marriage is solemnised in the registrar’s office by a district registrar, assistant registrar or temporary registrar, except when for good reason a party is unable to attend there. The parties must declare that they accept each other as man and wife and the celebrant must declare them to be man and wife in marriage ceremony.


Religious ceremony


The marriage is solemnised according to religious formalities. It can take place anywhere, provided the place is specified in the marriage schedule. Parties to the marriage, celebrants and the witnesses must sign the marriage schedule and the schedule be registered with the district registrar within three days.

Irregular marriages


It is possible in Scotland to contract a valid marriage by cohabitation with habit and repute, i.e., by cohabiting as husband and wife for a considerable time and with friends, neighbours and relatives believing the parties to be married.

Recognition of foreign marriage


A marriage is recognized as formally valid in Scotland if celebrated in accordance with the formal requirements of the law of the country where it was celebrated.


Void and voidable marriage


(i) Void marriages. A marriage celebrated in Scotland may be void for a number of reasons, including: under-age; prohibited degrees of relationship; prior existing marriage; mental incapacity; coercion; or fraud. A void marriage is generally deemed not to have existed at all, although it is wise to obtain a declaratory of nullity in order to clarify the position.

(ii) Voidable marriages. The only ground on which a marriage is voidable is that at the time of the marriage one spouse was permanently and incurably impotent in relation to the other spouse. Only the parties to the marriage have title to sue for a declaratory of nullity on this ground.

THE LEGAL CONSEQUENCES OF MARRIAGE


Personal relations


The old custom of choosing matrimonial home by husband and the wife’s duty of obedience has been abolished. Other duties, such as the duty to adhere, to behave reasonably, and to practice sexual fidelity, apply equally to both parties and are no more than grounds for divorce if breached. A husband can be guilty of raping his wife.

Citizenship and domicile


Marriage has no autonomic effect on citizenship. Citizenship can only be acquired by naturalization by the foreign spouse of a British citizen. The rules are tighter for spouses than for other persons.

There is no effect of marriage on domicile. A spouse’s domicile is established in the same way as that of any other adult, except that a woman who acquired a domicile dependent on that of her husband prior to 1974 retains that domicile until she acquires a new one, or her domicile of origin revives.

Property rights


Scots law does not recognize community of property on marriage. Marriage generally has no effect on the property of spouses (i.e., they are treated as independent persons), except that:


(i) it is presumed that spouses own certain household goods in equal shares;

(ii) it is presumed that money or property derived from a housekeeping allowance is allowed by the spouses in equal shares;

(iii) special rules govern occupation of the matrimonial home;

(iv) special rules govern insurance policies taken out for the benefit of spouses or children; and

(v) special rules govern succession to tenancies on the death of a tenant.

Financial obligations


Spouses have a duty to aliment (financially support) each other during marriage, provided their respective means and needs justify such support. Spouses may also be entitled to financial support from the state, and have certain automatic succession rights regardless of what a deceased spouse has provided in a will. On divorce the courts have extensive powers to make orders for financial provision.


Children


Parental duties or a child’s rights are not affected whether a child’s parents are or have been married to each other. Only the mother has automatic right if they have not been married.

FINANCIAL PROVISION DURING MARRIAGE


Spouses are free to reach agreement on the payment of aliment (financial support), and such agreements can be registered in the Books of Council and Session for enforcement, but any attempt to exclude or restrict aliment has no effect unless it was fair and reasonable at the time it was entered into. When there is a material change of circumstances, such agreements may be varied or terminated.


Financial provision from the courts


Either spouse can apply to the Court of Session or the sheriff court for aliment from the other spouse. In assessing the amount of aliment, if any, to be awarded, the court must assess what is reasonable in the light of:


(i) the needs and resources of the parties;

(ii) the earning capacities of the parties (actual and potential);

(iii) all the circumstances of the case, which includes the fact that the defender is supporting another person as a dependent in his or her household whether or not obliged to do so. No account must be taken of a party’s conduct unless it would be manifestly inequitable to ignore it.


An action for aliment can be made where the spouses are living in the same household, although the defender has a defence if he or she is supporting, or has made a reasonable offer to support, the pursuer in the same household.

Awards of aliment can be varied or recalled if there has been a material change of circumstances.

Child support


Irrespective of the parents’ relationship with each other, it is the parent’s obligation to aliment his or her child. The right to aliment is the child’s right, although is often pursued by the custodial parent. Most cases are dealt with by the Child Support Agency.

PROPERTY DURING MARRIAGE


In Scotland, community of marriage doesn’t exist. Spouses have separate legal personalities and their property during marriage is dealt with according to the same property law principles as apply to all other private individuals, subject to a few statutory exceptions (e.g., in respect of the matrimonial home and household goods).

Property can be movable (anything other than land and buildings) or heritable (land and buildings). Ownership or transfer of ownership of a heritable property is proved by registration of the relevant document (the disposition) in the official register (Register of Sasines), but proof of ownership of household goods requires no such formality.

Ownership


As a general rule, marriage makes no difference to the ownership of the property. The general principles of the property law apply and the spouse with the title owns the property.


A non-owning spouse can claim the other spouse holds property in trust for the claimant or them both, but must overcome the heavy burden of the Requirements of Writing (Scotland) Act 1995, requiring the existence of a trust to be proved by writing signed by the person holding the property in trust.


Where a spouse has contributed to the others property in money or in money’s worth (e.g., improvements) the question of unjustified enrichment might arise. Using the principle of recompense, the ‘contributing’ spouse can argue that the spouse has gained some benefit which was not intended as a gift, and on this basis claim financial compensation for the benefit acquired by the other spouse. This argument has been successful, but is a very uncertain basis on which to proceed, and spouses are advised to make formal arrangements regarding property.


Household goods and housekeeping allowances


It is a rebuttable presumption that spouses own household goods in equal shares. ‘Household goods’ are defined as those ‘kept or used at any time during the marriage in any matrimonial home for the joint domestic purposes of the parties to the marriage’. Goods acquired by gift or succession from third parties are excluded from the definition, as are money or securities cars, caravans or other road vehicles, and domestic animals.

A similar presumption establishes that money provided by one spouse for joint household expenses, and any property derived from such money, is owned by the spouses in equal shares.


Either spouse can rebut these presumptions by proving a contrary agreement.

The matrimonial home


OWNERSHIP


Joint ownership


Most couples take the title to the matrimonial home in joint names and to the survivor, with each having a separate share in whole property, but the property automatically becoming the property of the surviving spouse when one spouse dies. Either spouse can be excluded by the court from the matrimonial home where there is domestic violence.


Sole ownership or tenancy


Under the Matrimonial Home (Family Protection) (Scotland) Act 1981 each spouse has the right to live in the matrimonial home whether or not he or she is the owner or tenant, and a physically or mentally abusive spouse can be ordered out of the home by the court.


OCCUPANCY RIGHTS


Where a spouse is the owner or tenant of the matrimonial home, the other spouse has the right to live in the home, simply by the fact of marriage. This includes the right, if in occupation, to remain there and, if not in occupation, to enter and occupy the home. These rights cannot need to be registered and can be enforced by court order. Occupancy rights are dependent on the other spouse’s title continuing to exist, but a spouse cannot sell, transfer or burden the property (a ‘dealing’) without the entitled spouse’s consent.

A spouse can renounce his or her occupancy rights of a particular