Twenty years of family law in the Scottish Parliament

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 As part of the programme to mark 20 years since the creation of the Scottish Parliament, SPICe has been publishing twenty “20 year” blog posts on SPICe Spotlight over the course of 2019.  Our earlier post sets out more information on the programme and the series of blogs. This blog examines twenty years of family law in the Scottish Parliament.

What is family law?

Family law exists to regulate relationships between adults and between adults and children. Sometimes this involves resolving disputes, for example, about the future care of children. Sometimes this involves protecting people from harm.

Family law touches everyone’s lives at some stage and is vitally important for policy makers to get right. Yet one of the ongoing challenges is that people can have strong (and conflicting) views about what the law should say.

 Pre-devolution family law

Before devolution there were some of the usual issues about the lack of available slots in the UK Parliament for purely Scottish legislation. However, in many ways, family law from this era was a tough act for the Scottish Parliament to follow.

This was largely due to the work of the Scottish Law Commission (SLC), which makes recommendations for law reform. A raft of well-drafted Scottish family law legislation, based on SLC reports, went through Westminster in the 80s and 90s.

So how has Scottish family law developed since then?

Protecting people from harm

 One of the first pieces of Scottish Parliament legislation related to the ‘protective arm’ of family law. This aims to offer extra legal remedies to the sanctions which the criminal law offers. In family law, the weapon of choice is a court order, obtained by a victim (and others) through the local sheriff court. Collectively, the different types of court order are sometimes known as ‘protective orders.’ Scotland inherited various protective orders from the pre-devolution period.

The Protection from Abuse (Scotland) Act 2001 was an early example of a successful Member’s Bill in this field. It was simple, but powerful and allowed police powers to arrest (without a warrant) to be attached to court orders relating to protection from abuse. These powers could be used when a court order was disobeyed.

Later, there was also a trend to create new types of court order for specific groups of people (e.g. cohabitants) or to respond to specific types of harm. Examples from the latter category include the Forced Marriage Protection Order (introduced in 2011). There was also the Domestic Abuse (Scotland) Act 2011, another successful Member’s Bill. This introduced a new category of court order, the ‘domestic abuse interdict.’ Last month, the Government announced it would legislate before 2021 on another new court order aimed at domestic abuse.

Overall, there is now a vast array of protective orders (with more likely to be added). This presents issues for vulnerable people and their supporters, as well as social workers and solicitors attempting to navigate the system.

As far back as back as 2005, a report of the Justice 1 Committee recommended government reform. This was “as a matter of urgency,” with the aim of simplifying the law. The SLC has said it may look at this area, but with no firm commitment yet.

Same sex couples

 In the last twenty years, there has been a raft of Scottish Parliament legislation giving legal recognition to, and rights for, couples in same sex relationships.

Arguably, this legislation is a good example of a parliament and government responding to rapidly evolving views in society, but also having a vision for the kind of society they wanted to help create. Some of the initiatives caused some controversy at the time, but most of Scottish society would struggle to relate to that now.

The Family Law (Scotland) Act 2006 strengthened various legal rights of cohabitants (e.g. financial rights on relationship breakdown) and extended this to same sex couples. The Adoption and Children (Scotland) Act 2007 allowed same sex couples to adopt for the first time.

Before same sex couples could marry, in 2004, it became possible for them to enter into a new institution – the ‘civil partnership’. In terms of the legal rights and obligations created, a civil partnership is virtually identical to marriage. This was then a very important reform. Yet the Scottish Executive, with the consent of the Scottish Parliament, passed the power to legislate for Scotland on this back to the UK Parliament. Possibly a sign of relatively young institutions finding their feet?

Ten years later though, the Parliament legislated with confidence on a historic reform. The Marriage and Civil Partnerships (Scotland) Act 2014 made it possible for same sex couples to marry.

Grounds for divorce

 Family law deals not just with positive milestones in relationships, but also endings. Accordingly, the Family Law (Scotland) Act 2006 reformed the grounds for divorce.

The 2006 Act took a pragmatic approach to reform, compared to what happened in England and Wales. And whereas policymakers ultimately failed south of the border, the Scottish approach was very successful.

The grounds for divorce, both north and south of the border, include:

  1. grounds based on the fault of one person (e.g. adultery)
  2. two grounds which rely on being separated from the other person for a certain period.

For Scotland, the 2006 Act reduced the time periods in these separation grounds down from five years to two years, where the other person does not agree to the divorce, and from two years to one year, where there is agreement.

For England and Wales, the Conservative government led by John Major attempted a fundamental reform of divorce law, namely the introduction of an entirely no-fault system. The associated legislation was passed in 1996. However, the relevant statutory provisions were never brought into force and were ultimately repealed in 2014. Consequently, England and Wales still has the five-year and two-year time periods for its separation grounds.

Since the 2006 Act, the vast majority of divorces in Scotland have been granted on the separation grounds. This is in stark contrast to the position in England and Wales, where the majority of divorces are still granted on fault-based grounds.

Westminster is now having another go at introducing a system of entirely ‘no-fault’ divorce. If it is successful, it is possible the Scottish legislation may start to look a bit dated. A future Scottish Parliament may have to grapple again with the principles underpinning the grounds for divorce. However, for the time being, the success story that is this part of the 2006 Act should be celebrated.

Cohabitants’ rights

As mentioned earlier, the 2006 Act strengthened cohabitants’ rights, including financial rights and rights to property when the relationship breaks down. The position taken was that cohabitants should have more rights than they had had previously – but still less rights than married couples.

The main criticism associated with this part of the Act has been not so much the basic idea, but the detail of that policy (or rather the suggested absence of it).

Lawyers have argued over the years that the 2006 Act offers too little guidance to the courts on what a cohabitant is entitled to financially on relationship breakdown. Cases decided since then have also given inconsistent answers. Consequently, solicitors struggle to advise their clients who (understandably) want to know what to expect.

In a move which will delight legal practitioners, the SLC is committed to looking again at this part of the 2006 Act, with a view to a future Scottish Government consultation. However, inevitably, the SLC and the Government will have to revisit a big policy question – i.e. how close cohabitation should be to marriage and civil partnerships, in terms of its financial consequences.

Civil partnerships for couples of different sexes

At present, a couple of different sexes cannot enter into a civil partnership. Yet, a 2018 UK Supreme Court decision made it clear that the same legal options for recognition of adult relationships need to be open to all couples, regardless of their sexual orientation.

The Scottish Government consulted on two policy options to resolve the issue, including closing civil partnerships to new relationships from a specified date in the future. The Scottish Government has now introduced the Civil Partnership (Scotland) Bill to the Parliament, based on the alternative option, which would extend civil partnerships to different sex couples.

Timings-wise, it might have been better to wait until the future of cohabitants’ financial rights was known before legislating. For this may affect demand among cohabiting couples for civil partnerships. However, the UK Supreme Court decision made it much more difficult to wait.

If the Bill is passed then, longer term, there might be a case for a general review of the law of adult relationships. This would be to ensure there is still a distinct role for each of the three legal models: (i) marriage; (ii) civil partnerships; and (iii) cohabitation (of the type that has legally recognised consequences).

Parents and their children

One of SLC’s flagship pieces of (pre-devolution) legislation was the Children (Scotland) Act 1995. It is still the main piece of legislation which helps resolves disputes between parents about the future care of children.

The Family Law (Scotland) Act 2006 reformed the 1995 Act. As one of several key reforms, the 2006 Act allowed unmarried fathers to acquire “parental responsibilities and rights” (PRRs) by jointly registering the child’s birth. (When this is done, the father’s name appears on the birth certificate.) PRRs enable parents to make key parenting decisions about their children. Before the 2006 Act, the main route for the unmarried father to acquire PRRs was by court order.

Since 2006 the number of children born to unmarried parents has risen – in fact, since 2009, more children have been born to unmarried parents than to married ones. And while the 2006 reforms were very worthwhile, unmarried fathers today do not have legal rights simply by being genetic parents. Joint registration of births is common, but not inevitable, as it requires the child’s mother to agree.

In 2018 the Scottish Government considered – and ultimately rejected – further reform on unmarried fathers (in the absence of a consensus of views on consultation). However, this decision may need revisited at some stage. For example, if the statistics on family make-up shift still further.

The Children (Scotland) Bill, currently being considered at Stage 1 by the Justice Committee, represents the next chapter in the story of the 1995 Act. Much of the focus is on the machinery which supports the 1995 Act, such as the courts and child contact centres (run by the third sector.) It aims to improve how well this machinery is working.

The future of family law in the Scottish Parliament

Overall, the first twenty years have been busy for family law. Sometimes though, successive legislative efforts have created quite a complicated legal picture. Hopefully, in the next twenty years, there will be a focus on consolidating and simplifying the law, where necessary. Family law needs to be accessible to its users.

In several areas of family law, the story is clearly still unfolding. In many ways, this is inevitable. Society is always changing and family law changes in response to society. We have already looked at what is just around the corner for family law (or at least not too far off) but what of the longer term?

In terms of (prospective) parents and their children, reproductive technologies are continually developing, and their use is steadily rising. There is also law reform work being carried out jointly by the SLC and the Law Commission of England and Wales. This means that surrogacy, in future, may be more readily available as an option. Separately, there is also a rise of so-called ‘blended families’, with the role of step-parents growing in importance.

Overall, one of the challenges policymakers will increasingly have to face is that the people who are raising a child did not necessarily contribute the genes (or provide the womb) to create the child. As part of its legislative response, policymakers might have to start adopting new terminology, as some academics have already done. For example, ‘genetic parent’ and ‘social parent.’ In any given set of circumstances, there is also the challenging matter of who should be the ‘legal parent’.

Where issues around reproductive technology and surrogacy are concerned, we often find ourselves near (or more often over) the devolved/reserved boundary and outside of the devolved competence of the Scottish Parliament. This has always been the case. However, due to the evolving ways families are being created, it is likely this will be more important in the next twenty years than it was the first twenty.

Sarah Harvie-Clark, Senior Researcher (Civil Law), SPICe

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