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Family Law (Scotland)

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Contents

Family Law

The Children's Hearing System

The Children's Hearing System has been around for just under 40 years and came about due to changes initiated by the Social Work (Scotland) Act 1968[1], now incorporated in the Children (Scotland) Act 1995[2]. There was concern in the early 1960's regarding how society dealt with children and young people in risk or in trouble. This resulted in research being carried out to come up with possible solutions and this led to what is now known as the "Kilbrandon Report". This meant that the new hearing system, started in 1971, would decide on the welfare interests of children under the age of sixteen, sometimes eighteen, instead of the courts.

The grounds for bringing a child or young person before a hearing are laid out in section 52(2) of the Children (Scotland) Act 1995.[3]

Section 52 (2) of the 1995 Act

This section includes that the child:

  • is beyond the control of relevant persons
  • is falling into bad associations or at risk of moral danger
  • is or has been the victim of an offence, including physical injury or sexual abuse
  • is likely to suffer serious harm to health or development through lack of care
  • is misusing drugs, alcohol or solvents
  • has committed an offence
  • is not attending school regularly without a reasonable excuse
  • is subject to an antisocial behaviour order and the Sheriff requires the case to be referred to a children’s hearing.

Children under the age of sixteen can still be prosecuted in court if the offence is serious enough in the context of murder, assault which puts a life in danger or certain road traffic offences which can lead to disqualification from driving. It is up to the Procurator Fiscal has to decide whether the prosecution is in the public interest. He may also refer it to the Reporter to decide if a hearing is more appropriate. [1]


This is a broad area of the law that covers topics such as:

  • Marriage, civil partnership and cohabitation
  • What happens when a relationship ends
  • Relationships between parents and children
  • Inheritance and succession
  • Gender recognition

Family Matters - Separation, Divorce and Dissolution

Every family has arguments at some time, and every relationship can go through difficult times. Often these problems are resolved but sometimes they are not, and a couple may choose to separate, divorce, or to dissolve their civil partnership.

What happens at the end of a relationship depends on the type of relationship a couple have. There are lots of services available to support couples both during and after their relationship.

Marriage and civil partnership

If a couple are married or in a civil partnership, the law sets down rules that say what their responsibilities and rights towards one another are, and how and when they can get divorced under the Marriage (Scotland) Act 1977 [2] or have their civil partnership dissolved under ss44-48 of the Civil Partnership Act 2004. [3] You can find out more about marriage and civil partnership (and what happens when they end) by following the link below.

Divorce in Scotland

There are various wasy in which parties can be divorced in Scotland. These are;

  • Divorce on the the grounds of one years' separation with consent which is also available to civil partnerships.
  • Divorce on the grounds of two years' separation (where no consent is required) which is also available to civil partnerships.
  • Divorce on the grounds of unreasonable behaviour which is also available to civil partnerships.
  • Divorce on the grounds of adultery which is not available to civil partnerships.

If there are no children of the marriage under 16 and no financial matters to be dealt with then parties can apply for divorce/dissolution of a civil partnership under the Simplified Divorce procedure which will often make it easier to seperate the belongings of each other during their marriage/civil partnership.


The Family Law of Scotland revolves predominantly around the Family Law (Scotland) Act 1985 and most recently the Family Law (Scotland) Act 2006 which provides rights upon unmarried fathers and cohabitants. It deals with marriage, divorce, civil partnerships, children and their protection under the law and the rights of the parents to contact them, financial provisions following a divorce and many other subcases. The details of the Act are:

"An Act of the Scottish Parliament to amend the law in relation to marriage, divorce and the jurisdiction of the courts in certain consistorial actions; to amend the Matrimonial Homes (Family Protection) (Scotland) Act 1981; to amend the law relating to the domicile of persons who are under 16 years of age; to make further provision as respects responsibilities and rights in relation to children; to make provision conferring rights in relation to property, succession and claims in damages for persons living, or having lived, together as if husband and wife or civil partners; to amend Part 3 of the Civil Partnership Act 2004; to make further provision in relation to persons entitled to damages under the Damages (Scotland) Act 1976[4]; to make provision in relation to certain rules of private international law relating to family law; to make incompetent actions for declarator of freedom and putting to silence; and for connected purposes."

Consent to Marriage

There are several situations where a marriage can be declared void, some of which are:

  1. Error
  2. Duress
    1. Mahmood v Mahmood
  3. Mental Incapacity
  4. Voidable Marriages: Incurable Impotency

Error

S.2(4) of the Family Law (Scotland) Act 2006 states that a marriage is void if, at the time of the ceremony, a party who was capable of consenting to the marriage purported to give consent but did so under error. For this purpose, error is restricted to error as the nature of the ceremony or the identity of the other party.

An error as to identity is only operative in cases of impersonation. The case McLeod v Adams 1920[4] is a case where no error as to identity arose. The pursuer was a war widow with 5 young children. The defender had deserted from the army. Using a false name to avoid detection by the authorities, he told a young and gullible widow that he was a sergeant in the Black Watch. The couple married and the defender promptly deserted his wife, taking her savings with him. Lord Sands held that there was no operative error as the widow clearly intended to marry the man before her and accordingly there was no error as to the identity of the parties to the marriage. Declarator of nullity was however granted on the grounds that the marriage was a sham.

In the case Lang v Lang 1921 the pursuer sought a declarator of nullity on the ground that he had been induced to marry the defender as a result of her representation that she was pregnant by him when, in fact, she was carrying another man’s child. The court maintained that neither concealment of pregnancy, nor a fraudulent misrepresentation of the true source of a disclosed pregnancy, was a ground of nullity in Scots law as these merely gave rise to errors as to qualities of the spouse and were therefore not sufficiently essential to vitiate consent.

The limited scope of operative error in relation to marriage can be the cause of considerable injustice. Although a person in the position of the pursuer in Lang v Lang could seek divorce, he may well have to wait two years before he has a relevant ground. The fraudulent misrepresentation cannot constitute grounds for divorce as behaviour for this purpose is restricted to the defender’s conduct since the date of the marriage.


Duress

Under this section the act explains that a marriage shall be deemed void (not valid), if it can be shown that one of the parties of the marriage only consented because they were under:

  • duress

In the case of Mahmood v Mahmood[5], the parents of a daughter had arranged a marriage for her 5 years befroe the marriage was due to take place. when the parents told their daughter about the marriage, she was upset and refused to go through with it. The daughter was financially dependent on her parents and worked in their shop. When the daughter told her parents that she would not go through with the marriage they said that the would financially cut her off, disown her and that she would bring shame upon the family and the community. The daughter knew that the threats were real as they had done this to two of their other children therefore the daughter went through with the marriage but told her husband that she did not want to marry him and therefore felt as if she was forced into this marriage to avoid being disowned by her parents. The daughter then challenged the marriage, the question for the court was that did the threats amount to duress?

  1. The court held that the threats on their own did not amount to duress
  2. BUT taken in the context they said that it was evident that she would not have proceeded with the marriage if the threats were not presents.
  3. The marriage will be deemed void if one of the parties was not capable of either consenting or understanding fully their actions and the nature of the contract of marriage.

In his judgement Lord Sutherland said: “It will in every case be a question of degree as to whether or not the threats offered were such as to overcome the will of a particular pursuer. I accept entirely that parental influence is perfectly legitimate and proper when the parents consider that what they are advising is in the best interests of their child. I also accept that the consent which has to be given to marriage need not be enthusiastic consent, but even reluctant consent will suffice provided that the consent is genuine. It would not be enough for a pursuer to aver that she feared the disapproval of her parents or feared the disapproval of the community in which she lived if she withheld consent. What is averred here however is that specific threats were made to her which, if proved, could be argued to go beyond the limits of proper parental influence, and in particular the threat to cut off all financial support and to send her back to Pakistan could be regarded as matters which could overwhelm the will of a girl of her age and cultural background. Furthermore, it will be necessary to explore the circumstances leading up to the threats being made, if they were made, and also it will be necessary to explore what happened after the marriage ceremony in order to see whether or not the pursuer's consent was genuine or otherwise.”

Lord Sutherland sent the case for proof before answer and the eventual decision was consent would not have been given without duress and therefore the marriage was treated as void.

In the case Buckland v Buckland [1967] in 1953, the petitioner, a Maltese employed by the British authorities in Malta as a dockyard policeman, was charged under Maltese law with corruption of a 15-year-old girl. Although stating that he was innocent of the offence, he was advised by his solicitor that he would inevitably be found guilty of the charge; that he would probably be sentenced to a long period of imprisonment and ordered to support for 15 or 16 years the child with which the girl concerned was believed to be pregnant; and that his only alternatives were either to marry the girl or to go to prison. The petitioner, who was terrified, agreed to marry the girl, whereupon he went through a ceremony of marriage with her at a church in Malta. He left Malta a few days later and went to England, where he had lived ever since. In 1964, by which time he had acquired an English domicile, he petitioned for annulment of the marriage on the ground that it was void for want of his consent. He only agreed to the marriage because of fears, reasonably entertained, which arose from external circumstances for which he was in no way responsible, and that accordingly the marriage ceremony was null and void.

Scarman J held in his judgement “the conclusion which I have reached, on the facts in the present case, is that the petitioner agreed to marry the girl because he was afraid, and that his fear was brought about by an unjust charge preferred against him either by the girl and the girl's father, or by the girl's father alone. The fear which originated in this way was greatly strengthened by the advice given to the petitioner by his own solicitor and by his superior officer. I am satisfied that when he presented himself in the church for the marriage ceremony, he believed himself to be in an inescapable dilemma - marriage or prison: and, fearing prison, he chose marriage.” The marriage was declared null and void.


This section explains also that if there is an error as to the nature of the ceremony, ie if it does not meet the required guidelines required by law, or if there is a mistaken belief by one of the parties that their proposed spouse is someone who they are not, then there is an error and this shall render the marriage void. The mistake in identity would have to be significant, in that you cannot hold a marriage to be void just because you believed your husband was going to be rich, when in fact he ended up not being so.

Mental Incapacity

S.2(3) of the Family Law (Scotland) Act 2006[6] says a marriage is void if at least one of the parties was incapable of understanding the nature and consequences of the marriage or was incapable of consenting to the marriage. This could arise from mental illness or mental impairment.

In the case Long v Long 1950 a husband who had gone through a ceremony of marriage with a mental defective in 1944 brought an action to have it declared null on the ground that at the date of the ceremony, the defender, by reason of arrested mental development, was incapable of understanding the nature of marriage or of giving her consent thereto. Lord Strachan held in his judgement “there appears to be no precedent for a declarator of nullity on the ground of mental incapacity, arising from feeble-mindedness.”

Voidable Marriages: Incurable Impotency

A marriage (and not a civil partnership) is voidable if one or both of the parties is at the time of the ceremony permanently and incurable impotent. Before the marriage will be treated as null, a party to the marriage must obtain a declarator of nullity of marriage whereupon the marriage is retrospectively void from the date of decree. ‘Impotency’ means incapacity to have sexual intercourse.

If a spouse is capable of sexual intercourse but refuses to consummate the marriage, that is not a ground of nullity in Scots law though it could give rise to grounds for divorce.

The impotency must exist at the date of the marriage and must be permanent and incurable at the date of the action for declarator of nullity. If the impotency is curable, where the action is brought by the potent spouse, decree is not granted until the impotent spouse has had an opportunity to undergo the necessary treatment: if the defender refuses treatment, decree will then be granted.

In the case F v F 1945[7] the husband relied on his own impotency to have the marriage set aside.

The question is not dealt with in our institutional authorities except in Bell's Principles (section 1524). There it is said that “incapacity of conjugal duties is a ground on which marriage may be declared void, at the instance of either of the parties, but is not in itself a nullity pleadable by others.”

In the case Snowman v Snowman[8] there was a petition by a woman for nullity of marriage on the ground of the incapacity of the man to consummate it, the Court was satisfied on the evidence that the man was incapable of ordinary complete intercourse by penetration and that the woman was a virgin in spite, of two miscarriages occurring during cohabitation. Medical evidence proved that this was possible. In the judgement the case D v A[9] was cited, in particular the judgement given by Dr. Lushington who stated: “Sexual intercourse in the proper meaning of the term, is ordinary and complete intercourse; it does not mean partial and imperfect intercourse; yet I cannot go to the length of saying, that every degree of imperfection would deprive it of its essential character. There must be degrees, difficult to deal with; but if so imperfect as scarcely to be natural, I should not hesitate to say that, legally speaking, it is no intercourse at all." In this case the nullity was granted.

It should be noted that under Scots law a couple are only considered to be married if they are of the opposite sex. Same sex couples do have the equivalent of a marriage by way of a civil partnership, which is dealt with by the Civil Partnership Act 2007. Although they are both considered to be different, many of the rules that were created years ago for the governance of marriage have been used in the act and therefore these two types of joinings are in fact very similar.

Therefore, a couple must satisfy this requirement before they can even consider the fact that the marriage would be voidable due to some form of error or incapacity etc.

Divorce was statutorily introduced to Scotland however the term adultery was never defined under Scots or English law for it was considered that everyone was aware what it entailed.

MacLennan v MacLennan[10] (Outer House, Court of Session, Scotland)

Husband and wife - Divorce - Adultery - Artifical Insemination

Case in family law, Mr and Mrs MacLennan were married in August 1952 but their marriage was not a success. The couple separated shortly afterwards and Mrs MacLennan went to U.S.A. In July 1955 she had a baby girl. Mr MacLennan sued for divorce citing adultery. Mrs MacLennan defended this action and claim she had conceived the child through artificial insemmination not through adultery.

The Court of Session was faced with defining adultery and whether or not artificial insemmination could be defined as under this heading.

This is where the immortal definition taken from Lord Wheatley's comments that adultery had to involve;

"physical contact with an alien and unlawful organ"

Mr MacLennan got his divorce regardless, as Lord Wheatley's comments were in relation to the relevancy of Mrs MacLennan's defence.

See also

References

  1. Social Work (Scotland) Act 1968, 1968 c. 49
  2. Children (Scotland) Act 1995 1995 c. 36
  3. op. cit. section 52 (2)
  4. Damages (Scotland) Act 1976, 1976 Chapter 13
  5. Mahmood v Mahmood, [1993] S.L.T. 589
  6. Family Law (Scotland) Act 2006, 2006 asp 2
  7. F v F [1945] ScotCS CSIH_1 (23 February 1945), 1945 SLT 193, 1945 SC 202
  8. Snowman v Snowman 1934 All Er 615, [1934] P. 186
  9. D-E v Attorney General (16 May 1845), [1845] EngR 821; (1845) 1 Rob Ecc 279; (1845) 163 ER 1039
  10. MacLennan v MacLennan [1958] ScotCS CSOH 5, 1958 SLT 12, 1958 SC 105
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