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    SCOTTISH LAW COMMISSION


    (Scot Law Com No 135)

    Report on Family Law

    Laid before Parliament by the Lord Advocate under section 3(2) of the Law Commissions Act 1965

    Ordered by the House of Commons to be printed 6th May, 1992

    EDINBURGH: HMSO

    £19.45 net

    Contents

    Most of Parts II to VI of the report on Family Law were implemented in the Children (Scotland) Act 1995. They are not reproduced here.

    PART I INTRODUCTION

    1.1 Towards a Scottish code of child and family law

    1.2 Background to Report

    1.5 Scope of Report

    PART II PARENTAL RESPONSIBILITIES AND RIGHTS

    2.1 Parental responsibilities

    2.14 Parental rights

    2.36 Who should have parental responsibilities and rights?

    2.52 Operation of parental responsibilities and rights

    2.59 Position of those who have care or control of a child

    2.60 Views of child

    2.67 Corporal punishment

    PART III GUARDIANSHIP OF CHILDREN

    3.1 Introduction

    3.2 Appointment of guardians

    3.6 Revocation of appointment

    3.8 When should appointment take effect?

    3.13 Responsibilities and rights of guardian

    3.16 Termination of guardianship

    PART IV ADMINISTRATION OF CHILDREN'S PROPERTY

    4.1 Introduction

    4.3 Damages

    4.9 Criminal Injuries Compensation

    4.10 Inherited property

    4.18 Court's powers

    4.19 Powers of parent or guardian

    4.22 Obligation to account

    4.23 Standard of care

    PART V COURT ORDERS RELATING TO PARENTAL RESPONSIBILITIES AND RIGHTS ETC

    5.1 Introduction

    5.2 What orders can be applied for?

    5.7 Who can apply?

    5.12 In what proceedings can applications be made?

    5.16 Avoidance of unnecessary orders

    5.19 Criterion to be applied

    5.20 A statutory checklist of factors

    5.24 The child's views

    5.30 Duty to consider arrangements for children

    5.37 Effect of orders

    5.42 Avoidance of delay

    5.43 Care and supervision orders

    PART VI PRIVATE INTERNATIONAL LAW RELATING TO PARENTAL RESPONSIBILITIES AND RIGHTS ETC

    6.1 Introduction

    6.2 Parental responsibilities and rights

    6.4 Guardianship

    6.7 Administration of children's property

    PART VII MARRIAGE BY COHABITATION WITH HABIT AND REPUTE

    7.1 Introduction

    7.2 Present law

    7.3 Problems in present law

    7.4 Assessment of present law

    7.8 Results of consultation

    7.9 Recommendation

    PART VIII NULLITY OF MARRIAGE

    8.1 Introduction

    8.3 Prior subsisting marriage

    8.4 Nonage

    8.5 Parties of same sex

    8.6 Prohibited degrees of relationship

    8.14 Non-compliance with formal requirements

    8.16 Defects in consent

    8.21 Voidable marriages: impotency

    8.30 Voidable marriages - other possible grounds

    8.32 Consequential changes to Marriage (Scotland) Act 1977

    8.33 Capacity for polygamy

    8.34 Invalidity under earlier laws

    PART IX DECLARATORS RELATING TO MARRIAGE

    9.1 Declarators of marriage or nullity of marriage

    9.3 Declarators of freedom and putting to silence

    9.6 Other declarators relating to marriage

    PART X LITIGATION BETWEEN SPOUSES

    10.1 Introduction

    10.2 Present law

    10.3 Background to present law

    10.6 Assessment of present law

    10.7 Results of consultation

    10.8 Recommendation

    PART XI THE MATRIMONIAL HOMES (FAMILY PROTECTION) (SCOTLAND) ACT 1981

    11.1 Introduction

    11.3 Dealings with third parties

    11.3 Introduction

    11.5 Existing law

    11.9 Results of consultation

    11.10 Spouses of former owners

    11.13 Proposed dealings

    11.15 Court's powers on refusing to dispense with consent

    11.16 Affidavits

    11.19 Dealings with tenancies

    11.22 Other minor amendments in relation to dealings

    11.23 Recommendations on dealings

    11.24 Prescription of occupancy rights

    11.29 Exclusion orders

    11.30 Interdicts

    11.34 Powers of arrest

    11.46 Definition of matrimonial home

    11.49 Other points on 1981 Act

    PART XII JUDICIAL SEPARATION

    12.1 Introduction

    12.4 The present position

    12.8 Assessment

    12.19 Recommendation

    PART XIII BARS TO DIVORCE

    13.1 Introduction

    13.2 Lenocinium

    13.5 Collusion

    13.9 Grave financial hardship

    PART XIV CHOICE OF LAW RULES ON VALIDITY AND DISSOLUTION OF MARRIAGE

    14.1 Introduction

    14.4 Proposed basic rules

    14.4 Formal validity

    14.5 Essential validity

    14.6 Marriages in Scotland

    14.8 Proposed ancillary rules

    14.8 Parental consent

    14.11 Effect of divorce

    14.12 Public policy

    14.13 Annulment of voidable marriages on grounds unknown to Scots law

    14.14 Matters omitted from proposed rules

    14.14 The Sottomayor v De Barros rule

    14.15 A general exception to the rule that formal validity depends on the law of the place of celebration

    14.20 A rule on prospective validation

    14.21 Choice of law in divorce

    14.22 Summary of recommendations

    PART XV CHOICE OF LAW RULES ON LEGAL EFFECTS OF MARRIAGE

    15.1 Introduction

    15.2 Capacity

    15.3 Obligations

    15.4 Property

    15.9 Recommendations

    PART XVI COHABITATION

    16.1 Introduction

    16.5 Aliment

    16.7 Household goods

    16.12 Savings from housekeeping allowance

    16.14 Financial adjustment on termination of cohabitation

    16.24 Discretionary provision on death

    16.38 Occupancy rights and protection from violence

    16.41 Life assurance

    16.46 Cohabitation contracts

    16.47 Opting out

    PART XVII ILLEGITIMACY

    17.1 Introduction

    17.2 The 1986 reform

    17.4 Completing the task

    17.11 Coats of Arms

    17.12 Domicile of children

    17.14 Choice of law rules

    PART XVIII ALIMENT: CHOICE OF LAW RULES

    18.1 Introduction

    18.2 Present law

    18.4 The Hague Convention

    18.5 Recommendation

    PART XIX THE LEGISLATION REQUIRED

    19.1 The draft Bill

    19.2 Other developments

    19.3 The need for a coherent approach

    19.4 Outline of a Scottish code of child and family law

    Part XX SUMMARY OF RECOMMENDATIONS

    Appendix A Draft Family Law (Scotland) Bill

    Appendix B List of those who submitted written comments on any or all of the propositions or questions put forward for consideration in Discussion Papers Nos 85, 86 and 88.

     
    The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965 for the purposes of promoting the reform of the law of Scotland. The Commissioners are:
    The Honourable Lord Davidson, Chairman,
    Dr E M Clive, Professor P N Love, CBE,
    Sheriff 1 D Macphail, QC,
    Mr W A Nimmo Smith, QC.
    The Secretary of the Commission is Mr K F Barclay. Its offices are at 140 Causewayside, Edinburgh EH9 1PR.
    ISBN 0 10 200493 5
     
    Scottish Law Commission
    Item 14 of our Second Programme of Law Reform
    Family Law
    To: The Right Honourable the Lord Fraser of Carmyllie, QC,

    Her Majesty's Advocate

    We have the honour to submit our Report on Family Law.

    (Signed)

    C K DAVIDSON, Chairman

    E M CLIVE
    PHILIP N LOVE
    IAIN MACP11AIL
    W A NIMMO SMITH
    KENNETH F BARCLAY, Secretary

    27 January 1992

    Part I Introduction

    Towards a Scottish code of child and family law

    1.1      Under the Law Commissions Act 1965 it is our duty to keep each area of Scots law with which we are concerned under review

    "with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments and generally the simplification and modernisation of the law." [1]
    Family law is one of the areas with which we are concerned. [2]We have already published a number of reports in this area., most of which have been implemented by legislation. It is now time to draw together the many statutory provisions on family law, along with those few family law rules which still depend on the common law, into one single family law statute for Scotland. This would be of benefit to all users of the law. The proposal to this effect which we made in a recent discussion paper [3]received overwhelming support on consultation. This report therefore makes recommendations. designed to put Scottish family law into such a form that the usual consolidation procedure in Parliament could be used to produce a single, comprehensive Act which would be arranged in a logical, coherent way. If this measure were combined with a new consolidation of the law on local authorities' powers and duties in relation to child care the result would be a comprehensive Scottish code of child and family law.
     

    Background to Report

    1.2      This report follows three discussion papers on family law topics which we published in 1990 - Family Law: - Pre-consolidation Reforms,[4] The Effects of Cohabitation in Private Law, [5] and Parental Responsibilities and Rights, Guardianship and the Administration of Children's Property. [6] We are grateful to all those who commented on these discussion papers. Lists of those who submitted written comments are appended. [7]We have been greatly assisted by the comments received.

    1.3      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

    2.67     
    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 .[1]That the defence of lawful chastisement is a matter of having parental (or analogous) rights, and not just a matter of not having an evil intent, is shown by the consideration that a newsagent who inflicted physical punishment on a paper boy or girl for being late for work would clearly be guilty of an assault, even although the motivation might be reasonable punishment in the long term interests of the boy or girl. The parental right of reasonable chastisement is recognised by statute, along with the right of teachers and others. Section 12 of the Children and Young Persons (Scotland) Act 1937, on cruelty to children, provides in subsection (7) that:

    "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]
    2.68      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. [4]The question of corporal punishment of children by parents, foster parents and others was debated in Parliament in 1989 during the proceedings on the Children Bill. In the House of Commons an attempt was made to introduce a new clause which, in civil proceedings, would have removed the defence of "reasonable chastisement" from parents, guardians -and others having custody or control of a child or young person. The motion to add the new clause attracted some support and some opposition but was eventually withdrawn. [5]In the House of Lords an amendment was moved to repeal section 1(7) of the Children and Young Persons Act 1933 [6]which corresponds to section 12(7) of the Children and Young Persons (Scotland) Act 1937 (quoted above). The amendment was opposed by the Government on the ground that it would "create complete obscurity" as to the position of a parent administering reasonable corporal punishment. [7]After a short debate the amendment was withdrawn. [8]Similar amendments at later stages in the House of Lords met with the same objection and were also withdrawn. At the Report stage in the House of Lords an amendment was moved with the objective of preventing corporal punishment of children in foster care. This amendment was the subject of a vigorous debate but was eventually defeated by 128 votes to 109. [9]

    2.69      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?"
    2.70     
    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.
    2.71     
    We suggested, on the same non-committal basis, that the following arguments might be made for abolishing the parent's right.

    (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]
    2.72      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. [15] We have derived a great deal of assistance from the comments received. It is very clear that the debate is not about whether children should grow up with or without parental control or guidance. Virtually everybody agreed on the need for effective control and guidance, appropriate to the child's age and development. Many of those who supported the abolition of corporal punishment stressed that they did not advocate permissiveness and indeed that they regarded an excessively permissive attitude on the part of parents as harmful and irresponsible. The debate is about a particular method of parental discipline, not about the need for consistent discipline (among other things, such as care, affection, approval, stimulation and increasing opportunities for self-determination) in bringing up children.

    2.73      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.
    2.74     
    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."
    2.75     
    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."
    2.76     
    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."
    2.77     
    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, [16] in which it was held that a mother was not guilty of assault when she had punished her 9 year old daughter with a belt, had been mediated to the public through banner headlines proclaiming "IT'S OK TO BELT YOUR KIDS". The Centre advocated the repeal of section 12(7) of the Children and Young Persons (Scotland) Act 1937 and a clear prohibition of corporal punishment, even if it did not entail a criminal penalty. The Children's Legal Centre (based in London) also supported abolition for civil law purposes, but not criminalisation. They too criticised the arguments for retention. On the argument that the existing case law set a commonsense standard of reasonableness they commented that

    "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.
    2.78      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.

    "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."
    2.79     
    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.
    2.80     
    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.
    2.81     
    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.
    2.82     
    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.
    2.83     
    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.
    2.84     
    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.
    2.85      A number of other organisations submitted comments supporting abolition of corporal punishment of children, sometimes only for civil law purposes.[18] Many of these organisations drew directly on the experience of people professionally involved with children. A few organisations (other than ones already mentioned) favoured retention of the parental right [19] or, after full discussion, were unable to reach agreement.[20]

    2.86      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

    (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.
    2.87     
    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.

    2.88     
    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.

    2.89     
    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 [21] but it seems most unlikely that an ordinary smack by a loving parent would come into that category. [22] Some individual respondents, as we have seen, claimed that the outlawing of corporal punishment by parents would violate a parent's rights under the Convention. This seems unlikely. Resort to the Convention by a small group of Swedish parents who objected to the abolition of their right to use corporal punishment was unsuccessful. The European Commission on Human Rights held their application inadmissible.[23] Respect for "private and family life" under article 8 does not require toleration of everything that may happen within a family. Some of our respondents referred to article 2 of Protocol 1 which says that

    "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.
    2.90      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.[28] Severe or regular beatings, beltings or canings would be another matter, even if within the limits of the present law. We refer to the comments by Dr Leach and Dr Rowe, also summarised above, [29] on the psychological harm this type of upbringing can cause. There is a good deal of evidence that corporal punishment, of the type permitted by the law, is ineffective as a method of modifying behaviour and that other methods are more effective. This is an answer to those who argue that retention is necessary or that abolition would undermine family life and destroy all discipline but it is not in itself, in our view. a sufficient argument for abolition. Our concern is not with what is the best or most effective parenting practice, but with whether a particular practice is so harmful or unacceptable that it ought to be made unlawful, given that the state quite properly allows parents a very wide margin of freedom and discretion in the way in which they bring up their children. We accept, and regard as important, the arguments to the effect that physical punishments tend to escalate in severity, that parents using physical force may inadvertently cause damage, and that much abuse starts as ordinary punishment. However these arguments do not necessarily, in our view, lead to the conclusion that all corporal punishment must be made unlawful. They do suggest that the line between the permissible and the unlawful should, at the very least, be drawn as clearly as possible, and at a point which provides a margin of protection against inadvertent overstepping of the limit. We do not accept the argument that the only way of drawing a clear line between lawful and unlawful punishment is to abolish all corporal punishment. We accept that children tend to model their behaviour on that of their parents and that it is not desirable to encourage young people to resort to violent ways of resolving conflicts. Again, however, we sympathise with those who believe that loving parents who occasionally resort to a careful smack are not necessarily providing violent role models for their children.

    2.91      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

    "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.
    2.92      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]

    2.95      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] Outright abolition of all corporal punishment, for both civil and criminal law purposes, would not be in accord with the overall results of our consultation. It would probably go beyond what has actually been done in Sweden, given that in Sweden it seems that not all trivial smacks would legally amount to criminal assault. [35]

    2.96      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.

    2.97      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.

    2.102      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.

    2.104      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, [36] may seem anomalous and we did receive suggestions that it should be changed. It might seem even more anomalous if some teachers were to have a greater right than parents to cane or belt children under their control. However, that is not a matter of family law and not a matter for us. The position of step-parents, cohabitants, foster parents or other people who have care or control of a child in a family situation but who do not have parental responsibilities or parental rights is different. We have already recommended that they should have certain powers to do what is reasonable in the circumstances for the purposes of safeguarding the child's health, development or welfare. [37] At present, such people are regarded, while they have charge or care of the child. as having the defence of reasonable chastisement available to them. [38] It would clearly be anomalous if they were to have greater rights to administer corporal punishment ' than the child's own parent. We therefore suggest that it should be made clear in the new legislation that, without prejudice to the position of teachers, a person who has care or control of a child but does not have parental responsibilities or parental rights in relation to the child should have no greater right than a parent has to administer corporal punishment to the child.

    2.105      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     
    Most of the law on the constitution of marriage is statutory.[1] However, the law on marriage by cohabitation with habit and repute still depends on the common law. In the context of a proposed codification of family law the question therefore arises whether this form of marriage should be left to depend on the common law, put into statutory form, with or without changes, or abolished.

     

    Present law

    7.2      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. [2]Although the marriage results from the combination of mutual consent and the outward elements of cohabitation and repute, without the need for a court decree, in practice a court decree of declarator is sometimes necessary before third parties will accept that the requirements for this type of marriage have been met. There are never more than a few declarators of marriage by cohabitation with habit and repute per year. [3]Section 21 of the Marriage (Scotland) Act 1977 requires the principal clerk at the Court of Session to send to the Registrar General for Scotland details of any decree of declarator of marriage by cohabitation with habit and repute including "the date, as determined by the court, on which the marriage was constituted" so that the marriage can be registered. As a marriage by cohabitation with habit and repute exists independently of any court decree of declarator, it follows that third parties, such as the trustees of occupational pension funds, may choose to accept the evidence of a marriage without requiring a court decree to be obtained. [4]It also follows that there are, at any one time, a number of undeclared and unregistered marriages by cohabitation with habit and repute.

     

    Problems in present law

    7.3      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.[5] More recently, however, a period of 10 months and 23 days was accepted as sufficient in the Outer House.[6] Secondly, what is sufficient reputation? Again no firm answer can be given. The fact that a few people know that the cohabitants have never been regularly married will not necessarily prevent a marriage, [7]but the repute of marriage must be "substantially unvarying and consistent". [8]Thirdly, when will the presumption of tacit consent be rebutted? Clearly the presumption will be rebutted if both parties deny, credibly, that they ever intended to get married. [9]Indeed, as both parties must consent, it should be sufficient if one party denies ever having had matrimonial intent, provided that he or she is believed. [10] The presumption will also be rebutted if the parties believed throughout the period of cohabitation that one of them was married to someone else, even if, unknown to the parties, that marriage had ended by death or divorce.[11] In theory the presumption ought to be rebutted if the parties thought that a regular ceremony was necessary for marriage and intended to go through such a ceremony at some time in the future.[12] In practice, however, judges have sometimes been prepared to hold a marriage by cohabitation with habit and repute established in this type of case.[13] The presumption of tacit consent may also be held to be rebutted by evidence of the bad terms on which the parties lived together.[14] There may, of course, be other situations where the presumption will be rebutted: it is all a question of evidence. A further problem is that of fixing the date of the marriage. There are cases and dicta which tend to push the date of the marriage back to the earliest possible date-for example, the date when cohabitation began or when an impediment to the marriage is removed-but, as a matter of logic, it seems odd to regard a marriage as constituted before the requirements for it (including a sufficient period of cohabitation in Scotland while the parties are free to marry) have been fulfilled.[15]

     

    Assessment of present law

    7.4      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.

    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. [16] Whatever its merits as a protective mechanism in the past, marriage by cohabitation with habit and repute is an inadequate, and statistically insignificant, protection for cohabitants in the conditions now prevailing.

    7.6      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. [17] An intention to get married in the future seems inconsistent with regarding oneself as married now.

    7.7      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

    7.9      We recommend that

    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]

    7.12      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. [21] Moreover, a court granting a declarator of nullity now has the same powers to make orders for financial provision as a court granting a decree of divorce. [22] If the invalidity of a long and apparently regular marriage comes to light only on the death of one of the partners then the other would have the right, if recommendations made later in this report are implemented, to apply as a cohabitant for a provision out of the deceased's estate and, in such circumstances, could expect a generous provision. [23]

    7.13      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 [24] inferred from circumstances other than promise subsequente copula [25] or cohabitation with habit and repute. [26] We express no view on the merits of this argument. If it is correct, the need for reform of the law on irregular marriages is even greater than we had supposed. Clause 21 of the draft Bill (which lays down certain formal requirements for any marriage entered into in Scotland after the new legislation comes into force) should prevent this argument from causing difficulty in the future.

    Part VIII Nullity of marriage

    Introduction

    8.1     , We deal with private international law questions relating to marriage later. [1]In this part of the report, therefore, it is assumed that there are no foreign aspects to complicate matters: the marriage in question is celebrated in Scotland between parties who are domiciled in Scotland.

    8.2      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. [2]However, most of the rules on nullity of marriage still depend on the common law. One of the early reports of the English Law Commission was on nullity of marriage [3]and it led to the Nullity of Marriage Act 1971 (now consolidated in the Matrimonial Causes Act 1973). We have not engaged in a similar law reform project on nullity of marriage until now because it did not seem to us that it was of high priority. Problems are very infrequent in practice. However, a proposed codification makes it necessary to consider putting the existing law into statutory form. This provides a useful opportunity to reform some aspects of the present law-notably the law on sham marriages and the law on nullity for impotency-which are unsatisfactory. For the rest, not much more is envisaged than a restatement, with clarification of doubtful points where appropriate, of the existing common law. The proposals which we made, to this end, in the discussion paper proved uncontroversial.

     

    Prior subsisting, marriage

    8.3      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. [4]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

    8.4      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

    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. [5]The court by a majority of 14 to 4 held that the denial by English law of such a right was not a violation of article 12 of the Convention (right to marry). Article 12 referred to the traditional concept of marriage between persons of opposite biological sex. [6]A dissenting opinion pointed out that several European states had acknowledged, subject to certain conditions, the right of a transsexual to marry. someone of the opposite social sex but same biological sex. A transsexual who had undergone gender reassignment surgery, as the applicant had in this case, had no realistic possibility of marrying someone of the opposite biological sex and the only humane solution was to allow marriage with someone of the opposite social sex. This case gave rise to a good deal of comment in the media, much of it sympathetic to the case for same-sex marriages, at least where genuine transsexuals are concerned. We have some sympathy with the view that the existing law can operate in an inhumane way in certain situations and we agree with those consultees who suggested that this was a topic which might merit further consideration at some time in the future. However, we would clearly not be justified in recommending any change in the law on such a highly controversial matter in this report. We therefore recommend that, at least for the time being

    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

    8.6      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. [7]In the case of blood relationships this means that a person cannot marry his or her parent, grandparent, or great-grandparent; child, grandchild or great-grandchild; brother or sister; uncle, aunt, nephew or niece. [8]We do not suggest any change in these rules.

    8.7      In the case of relationships by marriage the only restrictions are on marriage with a former spouse's child, grandchild or parent, [9]and even in these cases the law was relaxed in 1986. [10] In the case of a former spouse's child or grandchild, marriage is now permitted provided that both parties are at least 21 years of age at the time of the marriage and

    "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.
    8.8      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

    "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] It was a compromise amendment designed to meet objections which had resulted iii the defeat of an earlier proposal to allow people to marry the parent of a former spouse. The reasons for the rejection of the earlier proposal were that to allow such marriages

    "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?
    8.12      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. [16] A majority of the group's members referred to the fear that the removal of prohibitions might encourage the formation of attachments between parents-in-law and their sons-in-law or daughters-in-law, but did not feel that the law could prevent such cases arising. They pointed out that similar fears had been expressed in relation to the removal of earlier prohibitions, such as the former prohibition of marriage with the brother or, sister of a former spouse, but that there was no evidence to suggest that the removal of these prohibitions had had any ill effects. [17] They did not accept that the removal of the remaining prohibitions on marriage with former in-laws would tend to undermine the family. [18] They thought that marriages between former in laws would in practice be rare and that most people, particularly those with religious objections to them, might still prefer to avoid them but that this was not a reasonable argument for prohibiting the lawful marriage of such former in-laws as did wish to marry. [19] They concluded that the prohibition was based simply on tradition and could not now be justified on any logical, rational or practical ground. [20] The experience of other states where there had never been such a prohibition provided a strong and persuasive argument for abolishing the impediment. [21] A minority of the group recommended that the existing legal impediments to marriage between parent-in-law and children-in-law should not be removed. [22] They said that to allow such marriages would be

    "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.
    8.13      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] Another group expressed concern about pressures on children. We do not see, however, why children should be prejudiced by the regularisation, through marriage, of an affectionate and supportive relationship which already exists. We do not think it likely that a step-parent who already has a close family relationship with his or her step children will necessarily be worse for the children than an unrelated step-parent with no such relationship. Nor do we see why children should be prejudiced by the dual roles which result from such marriages. Adoption by grandparents is not uncommon and gives rise to similar dual roles. Moreover such dual roles can arise under the existing marriage law in those cases where the very limited restrictions on marriages with the relatives of a former spouse do not apply (eg marriage with former husband's brother, or deceased husband's widowed father). No-one, so far as we know, has suggested that they cause any problems. Most importantly, we think that there is a danger of being excessively paternalistic in this area. Parents are not generally unmindful of the interests of their own children. Finally, the number of marriages which would result from the removal of the remaining restrictions would be likely to be very small indeed and the number of such marriages where there are minor children even smaller. Our conclusion is that the remaining restrictions on marriage with the parent of a former spouse should be abolished. We can see no need for confining this change to persons over the age of 21. Both parties, in the type of case we are considering, will inevitably be old enough to have had at least one former marriage. We therefore recommend that

    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

    8.14      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) [28] which provides that, subject to the provisions in the Act on under-age marriages and marriages within the prohibited degrees,

    "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).)
    8.15      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. [30] Similarly, failure to produce a birth certificate or one of the other documents referred to in section 3(1) of the Marriage (Scotland) Act 1977 should not invalidate the marriage if, through inadvertence, the district registrar overlooks the omission and completes a marriage schedule. Also, a mere failure to register a marriage in time should not in itself be a ground of nullity. We think that it would be useful in new legislation to make it clear that only failures to comply with the more important formal requirements result in nullity. The sanction for non-compliance with other formalities may be simply refusal of administrative co-operation-the registrar will not complete a marriage schedule if the required documents are not produced or, in some cases, a criminal penalty. [31] After consulting the Registrar General for Scotland on this question, we suggest that those formal requirements which can be regarded as essential (subject to cure in some cases by registration) are
    (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

    8.16      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. [33] In all of these case's it is probably necessary for the validity of the marriage to be challenged as soon as is reasonably practicable after the incapacity (if temporary) has disappeared, or the error has been discovered, or the source of the duress has been removed. [34] The law to this effect is, however, not clear. There is a lack of modern authority. We consider that the substance of the above rules is reasonably satisfactory. There is, so far as we are aware, no evidence that the law in this area gives rise to any difficulty or injustice. The ready availability of divorce as a remedy for marriage breakdown means that there is little need for the law of nullity to provide a remedy in a wide range of cases. This being so, there is in our view much to be said for keeping that law within its existing narrow bounds.

    8.17      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. [35] Although this rule is consistent with the traditional view that true consent, and not merely the external appearance of consent, is essential for the constitution of marriage it is open to the objection that it allows parties to use the Scottish marriage law and Scottish marriage ceremonies cynically for their own purposes. In the case of Akram v Akram [36] Lord Dunpark was clearly unhappy with the state of the present law but was forced to grant the decree of declarator of nullity sought. He said that it was for Parliament to decide

    "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]
    8.18      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, [40] the existing law of Scotland allows one party to a marriage to have it declared null on the ground that the other party did not really intend to get married. [41] This can give rise to some remarkable results if, for example, a man wrongly believes that he is committing bigamy when in fact his prior marriage has been dissolved by divorce. His second marriage, although not bigamous, can nonetheless be declared void because he thought it was bigamous and could not therefore have given true consent. [42]

    8.19      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. [43]

    8.20      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. [44] A person can found on his or her own impotency. [45] This is the only ground on which a marriage is voidable, as opposed to void, in Scots law. [46]

    8.22      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. [47] It is a question of whether logic or commonsense is to prevail. What is the effect of a declarator of nullity on the ground of impotency on other transactions which turned on the existence of a valid marriage and which were entered into while the marriage was valid? Are completed transactions to be retrospectively disturbed? Again there is a lack of certainty on this point in Scots law, although it seems likely that the artificial theory of retroactive nullity would not be pushed to its logical conclusion where this would lead to absurdity or interference with completed transactions [48]

    8.23      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]
    8.24      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. [51] A pursuer may, in certain circumstances, be personally barred from founding on impotency (whether his or her own, or the other spouse's) in order to obtain a declarator of nullity.[52]

    8.25      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. [53] There are various serious personal inadequacies, which may be present at the time of a marriage, and which may unfortunately cause it to break down irretrievably. We are not convinced that there is sufficient justification for singling this one out for special treatment. If a marriage survives serious difficulties, whether sexual or otherwise, then well and good. If it does not, and breaks down irretrievably, then there is a remedy in divorce. Moreover the ground of impotency invites the drawing of distinctions which seem meaningless from the point of view of the viability of a marriage. Why should it matter whether impotency was present at the time of the marriage 1or supervened a week later? If the sexual side of a marriage has been unsatisfactory from the start, is any good purpose served by a careful consideration of whether a person was capable on one or two occasions of sufficiently complete intercourse for legal purposes or only of insufficiently complete intercourse for such purposes? [54] Why should incapacity for sexual intercourse make a marriage voidable but not a deliberate refusal to attempt sexual intercourse? [55] Why should a woman who marries an impotent man, not knowing of his impotency, be able to obtain a declarator of nullity but a woman who marries a sterile man, not knowing of his sterility, be unable to do so? In either case, if she accepts the position she does not need a legal remedy while if she cannot accept the position and the marriage breaks down irretrievably she has the remedy of divorce. The only reason for the distinctions presently drawn by the law on voidable marriages is, we think, tradition. [56] They make no sense today.

    8.27      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. [57] There, are also, however, arguments against special provision for impotency. First, impotency by itself is not necessarily an indication of marriage breakdown. Both parties may have known the position at the time of the marriage. The marriage may have been entered into for companionship only. The pursuer may have accepted the position for many years. At the very least, therefore, the law on divorce for impotency would have to provide for certain additional bars to divorce. Secondly, the new ground would apply to only a few cases a year. In recent years there have only been about 8 declarators of nullity a year in Scotland. It must be doubtful whether a special new ground for divorce should be enacted to cater for such a small number of cases, particularly as there would usually be no great hardship involved in waiting for a year or two. Thirdly, a new ground of divorce for impotency would involve making arbitrary distinctions of the type criticised above. Why distinguish between impotency at the time of marriage and impotency occurring later? Why distinguish between impotency and near-impotency? Why allow divorce for impotency but not sterility or incurable disease or severe drug addiction or a serious personality defect or any other condition which might make it more difficult for both parties to achieve a fully satisfying marriage? We are not persuaded that there is an overwhelming case for making special provision for impotency as a fact justifying divorce but this is an option which could be borne in mind if, contrary to our recommendation, there is no reduction in the length of the separation periods required for a non-fault divorce.

    8.28      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.
    8.29      We 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     
    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

    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. [59]

     

    Consequential changes to Marriage (Scotland) Act 1977

    8.32      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

    (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. [60]

     

    Invalidity under earlier laws

    8.34      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] The question for consideration is whether a marriage which would be valid if entered into now should be invalid because entered into, perhaps abroad or in ignorance of the existence of the impediment, at an earlier date when the laws were different and more restrictive. There are two possible approaches.

    8.35      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]

    8.36      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.[63] It seems to us to be both more humane and more convenient. We have adopted this approach in the draft Bill appended to this report. [64] The draft Bill makes it clear, however, that no marriage will be invalidated retrospectively and it also makes it clear that retrospective validation will not operate in relation to a marriage which was, before the commencement of the new legislation, declared void by a competent court or followed by another marriage entered into in reliance on the nullity of the first marriage. [65]

    Part IX Declarators relating to marriage

    Declarators of marriage or nullity of marriage

    9.1      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. [1]The abolition of impotency as a ground of nullity and of marriage by cohabitation with habit and repute would reduce the number of such actions even further. So any effects on the courts' workloads would be minimal. We recommend that

    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)
    9.2      The draft Bill appended to this report applies the rules on jurisdiction in divorce to these actions. [2]We have not, however, thought it necessary to make special provision for the jurisdiction of the sheriff courts in those very rare cases where an action for declarator of marriage or nullity of marriage is raised after the death of both parties. In such cases resort could be had to the Court of Session under existing rules. [3]

     

    Declarators of freedom and putting to silence

    9.3      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. [4]

    9.4      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, [5]is now necessary to deal with a false assertion of marriage. Petitions for jactitation of marriage, which were equivalent in function to actions for declarator of freedom and putting to silence, were abolished in England and Wales by the Family Law Act 1986. [6]They have also been abolished in Australia and New Zealand. [7]

    9.5      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. [8]The Scottish courts can already grant such declarators, although of course it will only be in cases of genuine doubt (as to domicile, for example) that a declarator will be necessary. [9]In most cases it will be clear that a foreign divorce is entitled to recognition here. Recognition is automatic and does not require any registration or decree in Scotland. [10] In the discussion paper we asked whether it would nonetheless be useful (even if not strictly necessary) to provide by statute for the competency of a declarator as to whether a divorce, annulment or legal separation obtained outside Scotland was entitled to recognition in Scotland and, if so, whether the rules as to jurisdiction, title to sue and the effect of the decree should be the same as in the case of a declarator of marriage. [11]

    9.7      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]
    9.9      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. [14] his not only simplifies the legislation but should also prevent the same problem from occurring again.

    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

    10.2      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

    10.3      The power to dismiss in subsection (2) of the 1962 Act is based on a recommendation of the (English) Law Reform Committee. [6]In recommending the removal from English law of the old prohibition of actions in tort between spouses (which was similar to the prohibition operating in Scotland) the Committee noted that in several foreign countries "whose social standards are similar to our own" there was no bar on proceedings and that there was no reason to believe that marriages had been put in jeopardy in consequence. [7]They also noted, however, that only one of the memoranda submitted to them advocated the removal of all restrictions. They considered that to allow spouses to sue each other in tort without any restrictions could lead to harmful results. An action could lead to strains in the relationship and, if the action was in respect of "petty acts of negligence in the domestic sphere", would "certainly not be conducive to the continuance of the marriage". [8]In a later passage the Committee explained that the recommended power to stay proceedings should apply even if the spouses were no longer cohabiting, because there might be some possibility of a reconciliation and because, in any event, litigation might serve "only as an excuse for the airing of matrimonial grievances and bitterness". [9]The Committee's recommendation was therefore that the court should have power to stay an action in tort between spouses

    "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]
    10.4      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. [11] The "no substantial benefit " formula was intended to provide a more practicable test which would meet the concern behind the other part of the Law Reform Committee's recommendation. It was explained in Parliament that the formula had nothing to do with the likely effect of the litigation on the spouses' relationship or with the "ethical or moral disadvantages or advantages of pursuing a spouse in a court of law". [12] It was confined to monetary or property matters and was intended to allow cases to be dismissed if there was no prospect of recovery from the other party or if the injury complained of was quite trivial. [13] It was explained that if either party could show that he or she would receive a substantial benefit from pursuing the litigation the court would not have power to dismiss. [14]

    10.5      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

    10.6      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

    10.7      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     
    We recommend that

    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.

    11.2      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.

     

    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[4] therefore recommended a scheme for the protection of a spouse's occupancy rights against dealings, such as a sale, by the other spouse. In the case of owner-occupied houses, the Commission's scheme was based on registration of a matrimonial home notice in the Register of Sasines or the Land Register. If, but only if, a spouse had registered such a notice, he or she could have any subsequent dealing struck down within certain, fairly short, time limits. This scheme was designed to enable protection to be obtained against transactions designed to defeat occupancy rights while confining protection to cases where it was likely to be needed.

    11.4      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.

    "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]
    11.5      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]
    11.6      A further protection for purchasers was added in 1985. [8]It was provided that the non-entitled spouse's protection against a dealing would 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". [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.
    11.7      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. [11]

    11.8      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] We return to this later. [13]

    11.9      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] The prevailing view was that the existing balance between protection of the non-entitled spouse and protection of third parties was broadly right and that a set of minor reforms to remove unnecessary irritations and inconveniences, rather than a completely new start, was all that was required. The impression we gained from consultees was that the requirements of the 1981 Act had been absorbed into ordinary conveyancing practice and that a radical new departure would be unwelcome. In these circumstances we have confined ourselves to recommending minor amendments which would be designed to avoid a number of conveyancing difficulties without disturbing the existing scheme of the Act or significantly affecting the protection given to the non-entitled spouse.

    11.10      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. ".
    11.11      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.

    11.16      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.

    11.20      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. [23] We endorse this suggestion, subject to replacing affidavits by the new form of declaration referred to above.

    11.23      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 [24] but this seems excessively long.

    11.25      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] and that the occupancy. rights of a non-entitled spouse in a home should terminate if the spouses had been separated for a continuous period of one year during which period the non-entitled spouse had neither occupied the home nor been engaged in court proceedings to assert his or her occupancy rights. This would protect a spouse from an assertion of occupancy rights by a separated husband or wife after many years, but would ensure that a non-entitled spouse would not lose occupancy rights merely because the spouses had been living together elsewhere for a year or more.

    11.26      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. [26] Nor do we think that there would be any encouragement of unnecessary court actions. Either a spouse wishes to seek an exclusion order, or leave to enter under section 1(3) of the Act, or he or she does not. If he or she does wish to seek such a remedy there are, in any event, strong incentives to do so soon after the precipitating events rather than after a long period of separation. If the prescriptive period were two years it would, we think, be unnecessary to provide for interruption by court action within that period. There would therefore be no incentive to begin proceedings which had no real hope of success just to keep occupancy rights in being for some time longer.

    11.28      We recommend that

    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     
    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, [27] it appears to the court that

    "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

    11.30      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] The interdicts to which a power of arrest may (or, in some cases, must) be attached are described in the Act as "matrimonial interdicts" and a "matrimonial interdict" is defined in section 14(2) as an interdict including an interim interdict which
    (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.

    11.31      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, [35] to allow an application for a matrimonial interdict to be used as a back door method of obtaining an exclusion order. A recasting of section 14(1) in positive terms would make it necessary to provide expressly that a matrimonial interdict could not be used in this way. [36] Where the effect of such an interdict would be to exclude an entitled spouse, or a spouse with occupancy rights, from the matrimonial home it ought to be incompetent to grant it unless it is ancillary to (a) an exclusion order or (b) a refusal of leave by a court to exercise occupancy rights in the circumstances mentioned in section 1(3) of the 1981 Act. [37] There is no objection to an interdict being used to exclude from the home a non-entitled spouse who has renounced occupancy rights. A wife, for example, who has separated from her husband because of his violence may agree to re-admit him to the house of which she is owner or tenant only if he renounces occupancy rights. If he then becomes violent again she should be able to obtain any necessary matrimonial interdicts even if the effect is to exclude him from the home. Taking the above three points on the scope of section 14 together, we recommend that

    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

    11.34      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

    "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. [38] We had reservations about this suggestion. It seemed to us to be wrong to require a court to attach a power of arrest even in a case where it appeared to the court to be unnecessary. Most consultees agreed with our provisional view that the attachment of a power of arrest should not be mandatory in all cases. Some consultees suggested, however, that it should be made clear in section 15(1)(b) that the onus is on the non-applicant spouse to show that a power of arrest is unnecessary. We recommend the adoption of this useful suggestion.

    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).)
    11.36      Section 15(3) of the 1981 Act provides that

    "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.

    11.37      Under the existing law a power of arrest attached to a matrimonial interdict ceases to have effect on divorce. [42] Moreover, a power of arrest cannot be attached to an interdict against molestation of one former spouse by the other. [43] There have been suggestions that the power of arrest attached to a matrimonial interdict should continue after divorce and that interdicts with attached powers of arrest should be- available after divorce.

    11.38      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]

    11.39      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] and the procurator fiscal has decided that no criminal proceedings are to be taken then the arrested person must, wherever practical, be brought before a sheriff by the end of the first day after the arrest (not being a Saturday, Sunday or court holiday). [46] Before the person is brought before the sheriff the procurator fiscal must take all reasonable steps to intimate to the other spouse and his or her solicitor that no criminal proceedings will be taken. [47] The purpose of this is to enable the other spouse to decide whether or not to take civil proceedings for breach of interdict. The procedure once the arrested person is brought before the sheriff is regulated by section 17(5) of the 1981 Act, which provides as follows.

    "(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."
    11.42      The procedure outlined above is not effective. [48] Procurators fiscal often encounter considerable practical difficulties in making intimation to the other spouse and to his or her-solicitor, as required by section 17(4) of the 1981 Act, [49] and often have to spend a great deal of time and effort to no effect. Solicitors often encounter difficulties in obtaining instructions from their clients, within the short time available, in relation to the taking of proceedings for breach of interdict. [50] In practice there is rarely, if ever, adequate information before the sheriff as to whether or not proceedings for breach of interdict are to be taken. Unless it appears to the sheriff that proceedings for breach of interdict will be taken the arrested person must be released from custody. [51] We have been informed by one sheriff that he has never been able to grant a petition presented under section 17(5) because there has never been information before him indicating that proceedings for breach of interdict would be taken. The Procurator Fiscals Society told us that they had been unable to find a depute who had ever been present when a sheriff was able to grant a petition under section 17(5). Even if a petition were granted, the further period of two, days (excluding Saturday and Sunday) is hardly long enough in practice to enable proceedings for breach of interdict to be brought before a court. 52 It is certainly not long enough to permit the determination of breach of interdict proceedings if the breach is denied and a proof has to be fixed. [53]

    11.43      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] One option was to make any breach of a matrimonial interdict with a power of arrest attached to it a criminal offence. There was some support for this on consultation, but also strong opposition. It is not a new suggestion. We consulted on it at the time of our earlier work on occupancy rights and found then that it was strongly opposed, mainly on the ground that it would cause an undesirable confusion of civil and criminal remedies. The creation of a new criminal offence (which might consist of simply being in a street or building) is not something to be taken lightly and, given the opposition to this option, we cannot recommend it.

    11.44      We suggested in the discussion paper that another option might be simply to give the police power to detain the arrested person for up to 48 hours. There would be an obligation to report the circumstances to the procurator fiscal. The detained person would have the normal rights of a detained person under section 3(1) and (2) of the Criminal Justice (Scotland) Act 1980 (intimation to named person). There was a lot of support for this option but also opposition.

    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.
    11.47      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. [57] We think that this should be included and 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).)
    11.48      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

    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. [59] In these circumstances we do not think that it would be appropriate for us to take this suggestion further.

    Part XII Judicial Separation

    Introduction

    12.1      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. [1]

    12.2      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. [2]A judicially separated wife could enter into obligations, sue and be sued, as if she were unmarried. [3]These consequences, apart from the provision on intestate succession, ceased to be of importance with the disappearance of the old law on matrimonial property and the incapacity of married women. [4]The provision on succession is now anomalous. It applies only to a separation decree obtained by a wife, only if the wife dies intestate, and only to property acquired after the decree. In our report on Succession we have recommended its repeal. [5]At one time some local authorities used to require a married person applying for a tenancy of a local authority house on the ground of marital breakdown to obtain a divorce or judicial separation before they would make an allocation or put the applicant on a waiting list. [6]Where there was an objection to divorce this practice could push people into raising court proceedings for a judicial separation which they did not want and did not otherwise need. However, the Housing (Scotland) Act 1987 now provides that

    "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

    12.4      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. [8]It is not now necessary to seek a judicial separation in order to obtain a local authority house. [9]It never has been necessary to raise a separation action in order to obtain custody of, and aliment for, a child. Separate proceedings for custody and aliment can be raised. A separation decree is not a good remedy for a spouse who is the victim of domestic violence. It does not say that either spouse is to leave the home. It is concerned with personal relations, not occupancy rights. Exclusion orders and matrimonial interdicts under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 are more appropriate and effective remedies. The fact that a separation decree cancels the obligation of adherence between the spouses is of no practical importance. A spouse does not need a separation decree from a court in order to separate. A court will not order him or her to return. [10] If there is reasonable cause for separating, he or she cannot be divorced for desertion. [11] A spouse does not need a court decree to prove, for income tax or other purposes, that he or she is living apart. A separation decree is not conclusive proof in any event, as the parties may have resumed cohabitation notwithstanding the decree. A spouse who wishes to keep open the right to aliment, or the chance of a widow's pension, or a prospect of reconciliation, may not want a divorce but does not need a judicial separation either. Indeed from the point of view of reconciliation, raising a separation action on, say, the ground of intolerable behaviour is inadvisable. Raking over the spouse's past conduct, having him or her judicially found to be at fault, 'and having him or her ordained to live apart, is hardly the best way of promoting a reconciliation. Legally, judicial separation has become an unnecessary remedy.

    12.5      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]

    12.6      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 . [17] Most separation actions are raised in the sheriffdoms of North Strathclyde, South Strathclyde and Glasgow. [18]

    "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]
    12.7      Most separation actions are raised by women, and most are on the ground of intolerable behaviour. [20] Most include craves for aliment, custody or remedies under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. [21] It is estimated that approximately half of the pursuers are legally aided. [22] In most cases the pursuer has dependent children. [23]

     

    Assessment

    12.8      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. [24] In practice, too, almost all actions for separation are fault-based. Unnecessary allegations of fault by one spouse against the other in court proceedings are undesirable, particularly in those cases where children are involved. They are not likely to promote a conciliatory approach in relation to the fulfilling of parental responsibilities after the marriage breakdown. Judicial separation has been abolished in Sweden, [25] Australia [26] and Jamaica. [27]

    12.9      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. [28] However, the legal changes which we have mentioned already have destroyed the argument that judicial separation is necessary as an alternative remedy. A person who wishes, whether for religious reasons or other reasons, to remain married but to live apart from his or her spouse can just separate. He or she does not need permission from a court to do so. Aliment, orders relating to children, exclusion orders or interdicts can be sought, if necessary, without also seeking a judicial separation.

    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]

    12.11      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.

    12.12     
    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] However, to extend the effects of separation decrees would lead to new anomalies. Would it be right, for example, to distinguish between separation decrees and separation agreements? What about those who had been separated for years without a decree or an agreement? What about those who had raised a divorce action but not yet obtained decree? Why distinguish between succession rights and other rights dependent on marriage, such as rights under certain pension schemes or insurance policies or trusts? Clearly a separation decree on non-fault grounds would have to affect both spouses equally. There would be no justification for preserving the pursuer's succession and other rights but terminating the defender's. Probably the same rule would have to be applied to all separation decrees. To distinguish between fault and non-fault grounds in this respect would be undesirable.It would provide an incentive to. establish fault, which is contrary to current policies on marriage breakdown. Yet a separation decree might be even less attractive to a pursuer than it is already if it cut off the pursuer's succession rights as well as the defender's.

    12.13      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] We summarise the main findings in the following paragraphs.

    12.14      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 [33] the right to aliment and a widow's pension; the client might want to prevent for as long as possible [34] any remarriage by the other spouse; it might be advantageous for a client who owned the matrimonial home or other property not to activate the powers which a court has on divorce in relation to capital sums and property transfers; it might be advantageous to preserve the power of arrest attached to a matrimonial interdict ; [35] the client might have been divorced already and might not want "the stigma. of a second divorce". All of these are reasons for not pursuing a divorce action and for letting the other spouse seek a divorce if he or she wishes to and has grounds. They are not reasons for seeking a court decree of judicial separation. Most of the interviewed solicitors routinely dealt with the legal problems arising on marriage breakdown, where a divorce was not wanted, by raising proceedings for the appropriate remedies (exclusion orders, interdicts, aliment, custody and so on) independently of a separation action. They made comments such as the following. [36]

    "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]
    12.15      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. [43]

    "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]

    12.16      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.

    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".
    12.18      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]
    13.3      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. [2]A spouse is not, for example, barred by lenocinium merely because he or she does not attempt to dissuade the other from. committing adultery, [3]or merely because, suspecting adultery, he or she has the other spouse watched by detectives in order to obtain evidence. [4]The cases also establish that the pursuer's words or conduct must have been the immediate cause of the adultery before there will be lenocinium. [5]

    13.4      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 [6]that the reference to lenocinium should be replaced by a reference in plain English to adultery which had been actively promoted or encouraged by the pursuer. This was supported by almost all who commented on it. We therefore recommend that

    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

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

    "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.
    13.6      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]
    13.8      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.

    13.11      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. [16] We also note that a person divorced before he or she attained pensionable age can already use the contributions record of his or her former spouse to help him or her to qualify for a retirement pension. [17]

    13.12      We recommend that

    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     
    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 [1]and summarised the results of the consultation in a report published in 1987. [2]The report recommended certain changes in the Foreign Marriage Act 1892, designed to remove anomalies (such as the application of English law to Scottish domiciliaries) and bring the Act up to date. It also recommended certain minor changes in related subordinate legislation and the repeal of various spent Acts validating certain foreign marriages. The report was implemented by the Foreign Marriage (Amendment) Act 1988.

    14.2      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. [3]The first of these arguments loses its force in the context of a proposed codification, where the law is being set out in statutory form in any event. The second argument-that complicated legislation would be required-also loses its force in the context of a proposed Scottish codification where, as we show later, the most difficult problems canvassed in the discussion paper[4] can be dealt with quite simply. [5] The third reason-that statutory rules would prevent judicial development of a still undeveloped area of the law-is hardly applicable in Scotland where cases on this area of the law are few and far between, and it must in any event, as was recognised in the report, [6]be weighed in the balance against the argument that it is desirable, in the public interest, to provide a clear statement of the law in those areas where the very lack of development makes it impossible to state with any certainty what the law is.

    14.3      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.

    14.5      Essential validity. We proposed in Discussion Paper No 85 that, subject to a special exception for marriages celebrated in Scotland, [9]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.[10]This proposal was supported by all of those who commented on it. Under the existing law there is some uncertainty as to whether a party must also have capacity by the law of the place of celebration. [11] We propose later that a party marrying in Scotland should be required to have capacity by Scots law, but we regard this as a limited exception on grounds of public policy to the general rule and do not recommend that, in the case of a marriage outside Scotland, the law of the place of celebration should have any role to play in relation to capacity. [12]In relation to capacity to marry, the rule which we propose would resolve a doubt in the existing law but would not be inconsistent with the existing authorities. [13] In relation to defective consent the proposed rule would clarify what is a very uncertain area of the present law. [14]Again, we do not think it necessary or desirable to prevent the law of the domicile referring a question of essential validity to another personal law (renvoi). [15] Nor do we think it necessary or desirable to exclude from the scope of the applicable law of the domicile any rules providing for defects in capacity or consent to be disregarded in certain situations. Examples of such rules might be a rule that a lack of capacity due to nonage would be retrospectively ignored if the marriage had not been challenged by the time the younger party attained the minimum age, or a rule that a defect in consent due to duress would be retrospectively ignored if the marriage had not been challenged promptly once the source of the duress was removed. [16] The Law Society of Scotland suggested that, as recommended in an earlier report by the Commission, [17] it should be made clear that a person domiciled in Scotland does not lack capacity to enter into a marriage by reason only that the marriage is entered into under a law which permits polygamy. We agree. As we have noted above, the draft Bill covers this point when, in dealing exhaustively with impediments to marriage, it omits any reference to an incapacity to enter into a marriage abroad in polygamous form. [18]

    14.6      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. [19] The justification for this exception to the rule that capacity to marry is governed by the law of the domicile is no doubt that it would be contrary to public policy to allow people under 16 or within the, now quite restricted, prohibited degrees to conclude a valid marriage in Scotland even if they had, by lies or concealment of the truth, managed to induce someone to solemnise a purported marriage. The same considerations, we believe, apply to the other grounds of essential invalidity in Scots law. [20] These are all of a fundamental nature-going to the very basis of the concept of marriage-and we do not think that a marriage purportedly entered into in Scotland should be regarded as valid if one of these grounds of invalidity exists. We therefore suggested, in Discussion Paper No 85 [21] that, no matter what the domiciles of the parties may be, a marriage entered into in Scotland should be invalid if, according to Scottish internal law, (a) the parties are within the prohibited degrees of relationship (b) either party is already married (c) either party is under the age of 16 (d) the parties are of the same sex or (e) because of mental incapacity, error, duress or other reason either party does not effectively consent to the marriage. This suggestion was supported by all who commented on it. In relation to the last ground mentioned it is worth stressing that Scots law confines invalidity for defective consent to cases where the lack of consent goes to the very root of the marriage and where there is no meaningful consent at all.

    14.7      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. [22]

     

    Proposed ancillary rules

    14.8      Parental consent. At present a requirement of parental consent to the marriage of a minor is regarded as a matter of form .[23] It is therefore governed by the law of the place of celebration rather than by the law of the domicile of the party concerned. This rule has been much criticised. [24] It seems perverse to characterise all requirements of parental consent as pertaining to form. Such a requirement may be a mere matter of form if, for example, it applies only to a marriage celebrated in the jurisdiction concerned or one celebrated in a particular way. But it may not be. It may be intended to prevent the young person from entering into a valid marriage anywhere, in any way, just as the Scottish rule about under-age marriages is intended to prevent a Scottish domiciliary under the age of 16 from entering into a valid marriage anywhere. [25]

    14.9      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. [26] In the context of a new code it would, we think, be desirable to include a provision on this matter. In the light of the criticisms made of the present law and of the comments made on the 1985 discussion paper we consider that it would be unsatisfactory to classify all requirements of parental consent automatically as formal requirements. It would be equally unsatisfactory to classify a requirement which related only to marriages in a particular form or place as one which resulted in a legal incapacity. It would also be unsatisfactory if our courts were obliged to follow a foreign classification, which might be perverse or non-existent. As a number of commentators on the 1985 discussion paper pointed out, it is for our law to classify rules, for our choice of law purposes, as rules relating to form or legal capacity. We suggested in Discussion Paper No 85 that the simplest and most satisfactory solution would be to provide that 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 would be regarded as resulting in a legal incapacity for marriage if, but only if, it precluded a marriage by that person anywhere in any form while under that age. [27]This was agreed by all those who commented on it. [28]

    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]

    14.11      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, [35]and a marriage by that person (wherever it takes place) is not treated as invalid in Scotland. This provision would be repeated in any consolidation or codification. We mention it here only because it is an essential qualification of the rule that legal capacity to marry depends on the law of the domicile.

    14.12      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 [36] or skin colour. [37] Conversely, a law of the domicile conferring capacity might not be recognised if, for example, it allowed a girl of five years of age to marry. In the 1985 discussion paper we suggested that a public policy exception should continue to apply.[38] No-one disagreed with this.

    14.13      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 [39] a Scottish court should be able-to declare it null on some ground, such as wilful refusal to consummate, not recognised as a ground of nullity in Scots law. We are concerned here with initially valid marriages. The question is really whether such marriages should be dissoluble. This question is similar to the question whether Scottish courts should grant divorces on grounds unknown to Scots law. We suggested in Discussion Paper No 85 that it should be made clear that a marriage, which on applying the above choice of law rules is initially valid, could not be annulled or declared pull by a Scottish court on any ground. [40] This is consistent with our earlier recommendation on the abolition of the concept of the voidable marriage in Scots law [41] Our proposal was accepted by all except one of those consultees who commented on it. It would not change the existing Scottish practice in relation to grounds of voidability unknown to Scots law. It would be for other countries to decide whether -their courts should dissolve initially valid marriages on various grounds, and whether the decree dissolving them should be called a divorce or a nullity decree or something else. Of course, foreign nullity decrees would continue to be recognised in Scotland, if the foreign court had jurisdiction, even if the ground of annulment were one not found in Scots law. [42] There would be no change in that rule. However, people domiciled or habitually resident in Scotland who seek to have valid marriages dissolved in Scottish courts can reasonably be expected to find that Scots law applies. [43] The difficulty of any other approach is shown by the fact that, in relation to voidable marriages in English law, the English courts have certain statutory restrictions placed on them. [44] These restrictions would not affect a Scottish court. Yet it would seem to be wrong to apply an English rule without its attendant qualifications. Moreover an English decree annulling a voidable marriage has prospective effect only. [45] A Scottish decree of declarator of nullity declares the marriage to have been void from the beginning. This would be an inappropriate remedy for a defect, governed by the law of the domicile, which that law does not regard as making a marriage void from the beginning.

     

    Matters omitted from proposed rules

    14.14      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. [46] This rule has been strongly criticised as being nationalistic and unprincipled. [47] There is an apparent recognition of it in one Scottish case, [48]>but it is not included in the Marriage (Scotland) Act 1977. [49] In the 1985 discussion paper it was suggested that this rule should be abolished. [50] This proved, in general, to be acceptable to those who commented on the paper, some Scottish consultees taking the view that as the rule was not a clearly established rule of Scots law its abolition would have no effect in Scotland. We suggested in Discussion Paper No 85 that the rule should simply be omitted from the proposed new statutory scheme. No-one disagreed with this suggestion.

    14.15      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] There have been suggestions that there is a similar exception in Scots law, [52] but there is no modern authority on it and the law is undeveloped.

    14.16      The 1985 discussion paper sought views on various options in relation to this common law exception [53] So far as Scotland is concerned the preservation of the existing law is not an option, because there is no satisfactory existing law to preserve, and the options are (a) to provide a new statutory exception or (b) to provide no exception. If a new exception were to be provide4 it might be to the effect that a couple would not be regarded as invalidly married by reason only of -non compliance with the formal requirements of the law of the place of celebration of the marriage, if compliance with those formal requirements was impossible or not reasonably to be expected in the circumstances and if they exchanged present consent to marry each other. Would such an exception be necessary or desirable?

    14.17      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] There are statutory provisions for consular marriages abroad where compliance with local forms may be difficult and there are also provisions for marriages of members of the armed forces, and certain accompanying persons, abroad. [55] The speed of travel now means that parties will often be able to marry in their own country in circumstances where in previous centuries an early marriage would have been impossible. Marriage itself is less necessary than in former times, when cohabitation before marriage would have been unthinkable for many people and when the legal consequences of marriage were more important than they are now. There is also a provision in the Marriage (Scotland) Act 1977 which enables people who have gone through a marriage ceremony outside the United Kingdom but who are not, or are unable to prove that they are, validly married to each other in Scots law,. to have a second marriage ceremony performed in Scotland. [56] The Marriage Schedule is endorsed by the authorised registrar with the words

    "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.
    14.18      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. [57] It could also happen that a foreign law provided for a marriage to become valid at some time after it had been entered into. For example, there might be a rule validating a bigamous marriage prospectively as from the date when the first marriage is dissolved by the death of the other party or by divorce [58] or a rule validating an under-age marriage prospectively if the parties are cohabiting as husband and wife when the younger party attains the minimum age for marriage. We would be reluctant to burden a new statute with special rules on a topic which is likely to arise rarely if at all and have therefore asked ourselves whether any problems caused by prospective validation could be solved by applying the proposed general rules. We think they could be. The first marriage is invalid when entered into and is not retrospectively validated. In reality therefore there is a new marriage at the time of the validating event. It is rather like a marriage by promise subsequente copula in the old Scots law, inasmuch as it is a marriage as a result of an event following on an antecedent ineffective mutual commitment. Under the normal rules the marriage would, we suggest, be recognised if the law of the country where the parties are when the event occurs regards this as sufficient in respect of formal validity and if the laws of their domiciles at that time regard them as having capacity to marry and regard their deemed or tacit consent as sufficient for marriage.

     

    Choice of law in divorce

    14.21      There is a well-established rule that a Scottish court applies Scots law in a divorce action. [59] Even if the parties are both domiciled abroad it is the Divorce (Scotland) Act 1976 which determines whether a divorce will be granted, and the Family Law (Scotland) Act 1985 which regulates financial provision on divorce. This rule has worked well over the years whereas any rule referring to a foreign domiciliary law could have resulted in inconvenience, expense and (at least before wives were able to have their own domiciles) injustice. The existing rule was considered and supported by this Commission in 1972. [60] It would be useful, from the point of view of an eventual codification, to have it set out in statutory form and we so recommend.

     

    Summary of recommendations

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

    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, [1]but that is another matter.

     

    Obligations

    15.3      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. [2]

     

    Property

    15.4      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. [3]

    15.5      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.[4] This is subject to any agreement between the spouses to the contrary.[5] It is also probably subject to a proviso that vested rights are not affected by a change in domicile.[6] The existing rules date from a period when a wife took her husband's domicile automatically. There is no authority on the position (rare in practice) where the spouses have different domiciles. Most of the cases and textbooks still express the rules primarily in terms of the husband's domicile [7]but this seems inconsistent with the principles of equality and independence which now apply to the legal effects of marriage.[8] If uncertainty and fruitless speculation are to be avoided a legislative solution seems desirable.

    15.6      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. [9]This will leave it open to them to opt into a community property regime if they so wish. It will be a very rare situation indeed where spouses remain domiciled in different countries throughout their marriage and, as separate domiciles imply an absence of a common life plan, it seems appropriate to provide that marriage has no automatic effect on the spouses' moveable property. Alternative solutions, such as the law of the common habitual residence, or the law of the last common domicile, or the law of one spouse's domicile, are all likely to produce arbitrary results and impose on the parties a matrimonial regime with which they have, as a couple, no strong connection. The common habitual residence, for example, may be only temporary, for employment purposes. The last common domicile may have ceased to exist twenty or thirty years previously. To impose the law of one party's domicile on the other seems unjustifiable. Moreover solutions based on nationality would not be suitable as they would not solve problems where, for example, the parties were both British citizens but the question was whether Scots law or English law should apply.

    15.7      It follows from the fact that the effect of marriage in relation to immovable property depends, [10] and would continue under our proposals to depend, on the law of the country where the property is situated that the question whether a spouse has occupancy rights in a house by virtue of marriage will depend on the law of the country where in the house is situated. This is consistent with the provisions of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, many of which would be inappropriate or ineffective in relation to houses outside Scotland. However, the rule relating to the effects of marriage on immovable property does not go far enough in relation to occupancy rights and related protective rules. First, some matrimonial homes are moveable property (caravans and houseboats) but the law of the country where they are situated would still seem to be the appropriate governing law. Secondly, the protective rules connected with occupancy rights may apply, as they do in Scotland, to the contents of a matrimonial home and to outgoings related to it but, as these rules are ancillary to the rules on occupation of the home, it would seem to be appropriate that they should be governed by the same law. Thirdly, cohabitants may have occupancy rights and again the same rules ought to apply. We suggest therefore that there ought to be a special rule, applying the law of the country where the home is situated, for protective rights related to the occupation or use of the matrimonial home or its contents.

    15.8      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     
    We recommend that

    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     
    In our discussion paper on The Effects of Cohabitation in Private Law [1] we noted that the incidence of cohabitation [2]had increased greatly in recent years [3]and sought views on various preliminary proposals and questions relating to the legal effects which cohabitation should have in private law. The results of our consultation on this subject, and of the public opinion survey and public meetings on it [4]have confirmed us in our view that there is a strong case for some limited reform of Scottish private law to enable certain legal difficulties faced by cohabiting couples to be overcome and to enable certain anomalies to be remedied. However, we are also confirmed in our impression that this is a subject on which widely differing views are held. There is, in particular, a respectable view that it would be unwise to impose marriage-like legal consequences on couples who may have deliberately chosen not to marry. It was argued by some of those who commented on the discussion paper that the best approach would be to leave those who opt out of marriage to make their own legal arrangements by means, for example, of cohabitation contracts, insurance Policies and wills. Although we have considerable sympathy with this view, we doubt whether it is realistic to expect all cohabiting couples to make adequate private legal arrangements. We accept, however, that legal intervention in this area ought to be limited and that it requires to be justified in each situation in which it is recommended. It should neither undermine marriage, nor undermine the freedom of those who have deliberately opted out of marriage. It should be confined to the easing of certain legal difficulties and the remedying of certain situations which are widely perceived as being harsh and unfair. Cohabitants who do not wish to be governed by any of the new rules proposed should, in general, be able to opt out of them-for example by entering into a contract whereby they make their own legal arrangements and renounce other rights or claims in advance.[5]

    16.2      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, [6]and can apply to a court for occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981.[7] Cohabitation is also recognised for various purposes in the legislation on social security, tenants' rights, housing and Mental health. [8]The question therefore is not whether the law should recognise cohabitation for certain legal purposes. It already does so, and only one consultee suggested that this recognition should be withdrawn. The question is whether the existing legal response is adequate.

    16.3      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. [9]Cohabitants are not. We suggested in the discussion paper that this should continue to be the case and that it was difficult to justify the imposition of a potentially onerous obligation of support by the mere fact that a couple were cohabiting. So long as the relationship continued, a legal obligation would be largely irrelevant. Once it broke down a legal obligation based on the fact of former cohabitation would be objectionable, particularly as there would be no prospect of terminating it by divorce. Almost all of those who commented agreed with this view. We therefore do not recommend that there should be any obligation of aliment between cohabitants.

    16.6      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. [10] The absent parent's liability in this case arises not from the fact of former cohabitation, but from the liability to the child. It would be the same even if the two parents had never cohabited.

     

    Household goods

    16.7      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. [11] The presumption be rebutted by proving 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 . [12] "Household goods" are defined as any goods (including decorative or ornamental goods) kept or used at any time during the marriage in any matrimonial home for the joint domestic purposes of the parties to the marriage. They do not, however, include money or securities; cars, caravans or other road vehicles; or domestic animals. [13] In the discussion paper we asked whether a presumption of this type should be applied, with the necessary modifications, to cohabitants. [14] Most respondents thought that it should. The public opinion survey produced a similar response. [15]

    16.8      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     
    We recommend that

    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     
    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.

    "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.
    16.13      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. [18] We doubted whether any qualifying period was required but invited views. Almost all consultees agreed with our provisional view and, of these, about half thought that no qualifying period would be necessary. The rest favoured some qualifying period but the periods suggested by them ranged from 1 month to 3 years. For reasons already explained, we would prefer to avoid arbitrary qualifying periods if at all possible. Here a qualifying period does not seem necessary. We therefore recommend 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

    16.14      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:

    (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]
    16.15      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. [22] There was also general support for our provisional view that one cohabitant should not be ordered, on the termination of the cohabitation, to make financial provision for the other on principles analogous to those in section 9(1)(d) or 9(1)(e) of the Family Law (Scotland) Act 1985. Section 9(1)(d) relates to an award of short-term financial support to enable one party to adjust, over a period of not more than three years from the date of the divorce, to the loss of financial support from the other. Almost all consultees considered that this would be inappropriate on the termination of a cohabitation, given that there would be no obligation of support during the cohabitation and that cases involving child care or compensation for contributions or sacrifices in the interests of the family could be otherwise covered. [23] Section 9(1)(e) is concerned with the relief of long-term financial hardship which is likely as a result of the divorce. Again, this is linked to the loss of the obligation of support which exists during a marriage and almost all consultees agreed with our provisional view that it would be inappropriate to apply it on the termination of a cohabitation. In the public opinion survey, respondents were shown a card saying

    "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.
    16.16      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. [24] There was support for this on consultation and from respondents to the public opinion survey, but the view was also expressed that both parents ought to share the economic burden of child care whether or not they has been cohabiting. In the event, this question has been overtaken by the provisions in the Child Support Act 1991 which make an absent parent liable not only for maintenance of his or her children but also for an element of support for the person having care of the child. [25] The liability will exist whether or not the parents were cohabiting. This makes it unnecessary for us to make any recommendation on this question.

    16.17      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. [26] This provides 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 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]
    16.18      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). [32] It might be thought anomalous to provide a remedy for economic contributions and sacrifices made during a cohabitation which is followed by a short marriage and then divorce [33] but not for those made during a cohabitation of equal length and similar nature which ends without a marriage. [34] An argument against extending section 9(1)(b) to cohabitants, with any necessary modifications, is that parties who opt for cohabitation rather than marriage ought to know that gains and losses will lie where they fall and that common law remedies may be inadequate or difficult. They ought to make their own arrangements for any necessary adjustments or accept the consequences. [35] This, however, seems unrealistic. Many cohabitants will not know the law and will not make their own legal arrangements. It might also be argued that to provide an adjustive remedy for cohabitants would be to encourage cohabitation and devalue marriage. This, however, depends on the point of view. From the point of view of the unjustly enriched partner an adjustive remedy may make cohabitation less attractive than it would otherwise be. Moreover, even from the other partner's point of view, an adjustive remedy designed merely to mitigate injustice is hardly likely to be seen as a positive encouragement to cohabit rather than marry.

    16.19      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. [36] That should allow adequate time for a former cohabitant to take legal advice and for any action to be raised. The claim would be a pecuniary claim and, on general principles, would transmit to an executor, if the former cohabitant died within the year after termination of the cohabitation in the same way as would a claim based on breach of contract or unjustified enrichment.

    16.22      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     
    We recommend that

    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     
    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.

    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 [37] ) out of the deceased's estate where the deceased's will left the property to someone else. However, this was on the view that the cohabitant might be able to claim financial provision out of the deceased's estate, on a principle analogous to that in section 9(1)(b) of the Family Law (Scotland) Act 1985, to recompense him or her for contributions or sacrifices made to or for the benefit of the deceased. [38] We recognised, however, that different views could reasonably be taken on the question of legal rights for cohabitants, and pointed out that a Scottish public opinion survey some years ago had found that 73% of respondents supported the idea of giving a surviving cohabitant a right to some part of the deceased partner's estate in spite of omission from his or her Will. 39 Most of those who commented on the discussion paper agreed that a cohabitant should not be given a right to claim a legal share of the deceased's estate in opposition to the terms of his or her will. However, the Law Society of Scotland thought that the court should have a discretion to award a share even in opposition to the terms of the will. The Committee of the Scottish Clearing Bankers also favoured a system of discretionary provision, pointing out that one significant factor would be the date of the will in relation to the date of commencement of cohabitation. Two other consultees thought that the cohabitant should not necessarily be denied a claim against the estate merely because he or she was omitted from the deceased's will, one pointing out that the presence of children of the relationship who had also been omitted from the will could be an important factor.

    16.28      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. [40] We also rejected the idea of allowing other categories of people to claim discretionary provision out of the estate of a deceased person, although we noted that of those who favoured such a system for claimants other than spouses or issue most would have extended it to de facto spouses. 41 In rejecting at that stage the idea of discretionary provision for cohabitants we were strongly influenced by the views of consultees. In our earlier consultation paper on this subject we had expressed the view that there was a clear case for allowing a cohabitant to apply for a provision out of the deceased's estate. [42] It was therefore of interest to us to note that important consultees, including the Law Society of Scotland which had at one stage opposed discretionary provision, now supported it for cohabitants. We do not find this in any way surprising. Public opinion on the question of discretionary provision or fixed rights is very evenly divided. [43] There are good arguments on both sides, which we have fully discussed in earlier papers. [44] In the light of the general support for some provision for a cohabitant out of the estate of the deceased partner in at least some cases, coupled with the inconclusive results of our consultation on fixed rights, we have been driven back to reconsidering the case for a system of discretionary provision for cohabitants. We still think, however, that a system of fixed rights is preferable for spouses.

    16.29      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. 45 Where, 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.

    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] but we think that it reflects the maintenance based origins of that legislation. We do not think that provision for a surviving cohabitant should be confined to maintenance. In some cases it may be intended to provide recompense for past contributions or sacrifices. In others it may be intended to reflect the view that the deceased, if he had made a will, would in all probability have made provision for the cohabitant. In some such cases (particularly where the only other claimant is the Crown or a remote relative) the appropriate award may be the entire estate. Omitting periodical payments enables the law to be considerably simplified. We have also decided to omit anti-avoidance provisions, because we are not satisfied that there is any need for them in cases where the claim is made by a cohabitant who was living with the deceased immediately before his death. [47] Again this enables the law to be stated in a much simpler way.

    16.31      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] (prior rights) and in the draft Bill appended to our report on Succession. [49] It is important that the court dealing with general aspects of succession to the deceased's estate should have jurisdiction to deal with a cohabitant's claim.

    16.32      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] which allows a claim for damages for wrongful death by "any person, not being the spouse of the deceased, who was, immediately before the deceased's death, living with the deceased as husband or wife." We do not think that any qualifying period of cohabitation should be required. This would introduce an element of arbitrariness and, in some cases, difficulties of proof. The duration of the cohabitation should simply be a factor to be taken into account in quantifying a claim. In deciding whether two people were cohabiting immediately before the death of one of them, any absence of either as an in-patient in a hospital or similar institution, and any temporary absence such as absence on a vacation or a work assignment, should be ignored.[51]

    16.33      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] and, in particular, to the following factors

    (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.
    16.34      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] If the surviving cohabitant dies before having commenced proceedings his or her right to claim would, as a normal pecuniary claim, transmit to his or her executor. We do not think that any special provision is necessary in order to achieve this result.

    16.36      Any award to a cohabitant under these provisions should be paid out of the net estate [55] after debts and funeral expenses have been provided for. We recommend that the court, which will have the relevant facts before it anyway for the purposes of the claim, should have power to say which parts of the estate (e.g. residue, or bequest to a long separated spouse) should bear the cost of the award. For the purposes of inheritance tax any money or property due to the cohabitant by virtue of an order should be treated as if it had been left by the deceased to the cohabitant.[56]

    16.37      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.[57] In the discussion paper we asked for views on whether cohabitants should be given occupancy rights under the 1981 Act without the need to apply to a court for them. Most respondents were opposed to this idea. They thought that the existing provisions were adequate and that automatic rights would cause difficulties both for owners or tenants who wished to exclude a violent partner and for third parties, such as police officers, who might find it difficult to decide whether or not there was cohabitation which was sufficient to bring. occupancy rights into existence. Opposition was expressed not only by legal organisations, such as the Law Society of Scotland and the Family Law Association, but also by the Building Societies Association, the Committee of Scottish Clearing Bankers.' the Association of Chief Police Officers (Scotland) and the Association of Scottish Police Superintendents. Interestingly, opposition was also expressed at one of the public meetings by a representative of Scottish Women's Aid, on the ground that automatic rights for cohabitants would be against the interests of the many women who were sole tenants of their homes. We do not recommend automatic occupancy rights for cohabitants.

    16.39      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]At this time we were consulting on other forms of protection for spouses too [59] and considered that some limited forms of protection might be equally suitable for spouses and cohabitants. In the end we have decided not to recommend fundamental changes in the 1981 scheme for spouses and so, although there was some support on consultation for giving cohabitants protection against dealings, we have decided not to pursue this question further. We are not aware that the existing law gives rise to any difficulty in practice.

    16.40      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] It follows that if a woman who is the owner or tenant of a house cohabits there with a man who is not owner or tenant, and he begins to be violent towards her, she cannot obtain the protection of a matrimonial interdict unless he has applied successfully for occupancy rights. This is unfortunate and, in our view, unjustifiable. In the discussion paper we suggested that matrimonial interdicts, with powers of arrest attachable, should be available to cohabitants, whether or not they had occupancy rights, and without the need for any qualifying period of cohabitation. [61] There was strong support for this on consultation. It was suggested, however, by one consultee that the term "matrimonial interdict" was inappropriate for a remedy available to unmarried persons and that this type of interdict should be called a "domestic" interdict or given some other suitable name. We agree with this suggestion and recommend that

    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

    16.41      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] It is accepted that one spouse has an insurable interest in the life of the other.[63] This is not regarded as being merely pecuniary. It is not directly linked to the obligation of aliment but is regarded as the same type of interest as a person has ' in his or her own life.[64] Family protection policies, whereby one spouse insures the life of the other so as to receive, say, an annuity to cover the period when children are dependent and likely to impair earning potential, are commonplace. It seems to us, and almost all consultees agreed, that it would be unfortunate if any legal barrier were to be placed in the way of a cohabitant wishing to take out a policy of this nature. We were told by the Association of British Insurers that several insurance companies already regard one cohabitant as having an insurable interest in the life of the other, and it may well be that the courts would take the same view. However, a statutory provision would clarify the position. No qualifying period of cohabitation would seem to be necessary for this purpose. A cohabitant would be likely to think of effecting an insurance policy on the life of his or her partner if the relationship was one of some permanence. We therefore recommend that

    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.)
    16.42      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, [65] enables a person to take out a policy of assurance 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, without the need for any delivery or intimation. [66] "Spouse" includes a person, named in the policy as a beneficiary, who later becomes the spouse of the person effecting the policy. [67] A cohabitant could take out a policy on his or her own life for the benefit of his or her partner, without the benefit of the Act, and could do so either by naming the partner as the direct beneficiary, [68] or by taking the policy in trust for the cohabitant. In either case, however, there would have to be delivery of the policy, or some sufficient equivalent of delivery (such as intimation, or registration in the Books of Council and Session) before the cohabitant would acquire a vested beneficial right. [69] The 1880 Act is useful because it obviates the need for delivery or intimation and avoids the difficulties which might arise at a later stage if delivery or some equivalent could not be established. It enables a simple family trust to be created in a very easy way. It also contains a provision on the rights of the creditors of the person effecting the policy which is arguably better adapted to the circumstances of this type of transaction than the general rules on gratuitous alienation's. [70] The fact that cohabitants cannot rely on benefits under many superannuation schemes will often make the taking out of private life assurance a very wise precaution. The law should, in our view, do. what it can to make it easier for people to provide for their dependants in this way. If the 1880 Act were to be extended to cohabitants no qualifying period of cohabitation would seem to be necessary. A person can already, as we have seen, take out a policy in favour of a cohabitant (or anyone else) so long as there is the necessary intimation or delivery. There is no great question of policy involved. All that is involved is a simple extension of a facility.

    16.44      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     
    We recommend that

    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

    16.46      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.[72] The following passage is taken from Gloag on Contract. [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

    16.47      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] The provision on savings from housekeeping allowances applies only "in the absence of any agreement between them to the contrary".[81] A claim for financial provision on the termination of a cohabitation could, like any other pecuniary claim [82] be renounced in a prior agreement. Even if an agreement between the cohabitants did not amount to an actual renunciation, which excluded the jurisdiction of the court, it could certainly be taken into account by the court, as part of the circumstances of the case, in deciding what was a fair and reasonable award. We do not think that opting out of the possibility of a domestic interdict ought to be any more permissible than opting out of the possibility of a matrimonial interdict between spouses. These are protective remedies aimed primarily at the prevention of domestic violence, or further domestic violence, and opting out seems inappropriate in relation to them. So far as insurance policies and cohabitation contracts are concerned, any legal consequences are the result of opting in, and there is therefore no need to provide for opting out.

    Part XVII Illegitimacy

    Introduction

    17.1      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, [1]removed the few remaining disabilities of people born out of wedlock and enacted the general principle that

    "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.
    17.3      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,[7] and it left the Legitimation (Scotland) Act 1968 unrepealed. This Commission recommended, however, that the terms "legitimate" and "illegitimate", as applied to people, should whenever possible cease to be used in legislation. [8]We recognised that it was offensive for the law to use terms which suggested that some people were legitimate or lawful, and some people illegitimate or unlawful. [9]We considered at that time that it would not be appropriate to legislate to remove the status of illegitimacy in Scots law. This was partly because the terms "legitimate" and "legitimated" continued to appear in certain United Kingdom statutes and were likely to be found for some time in pre-Act documents, and partly because we hoped that, almost all legal differences between people born in marriage and people born out of marriage having been removed, the idea of a separate status of illegitimacy would gradually wither away. [10]

     

    Completing the task

    17.4      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.

    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. [11] The status of legitimacy will also cease to have any content, as everyone will be equally legitimate, but it is unnecessary to provide expressly for this.

    17.6      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]

    17.7      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] to a legitimate or lawful person in an enactment passed or made before the date of commencement of the new legislation or in a deed executed before that date it is to be taken to be a reference to a person whose parents were married to each other at the time of that person's conception or at any later time. [14] Any reference in pre-commencement enactment or deed to an illegitimate person would have a corresponding meaning-that is, it would be taken as a reference to a person whose parents had never been married to each other at any time since the time of the person's conception. [15] All of this would be subject to the rules on the effects of adoption, noted below. People drafting future deeds and enactments would be expected not to use non-existent concepts. Any reference to a lawful child of X in a post-commencement deed or enactment would apply to any child of X. These rules would replace section 1(4) of the 1986 Act, which deals with similar questions but is not consistent with the abolition of the status of illegitimacy.

    17.9      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). [16]

    17.10      We 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     
    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.(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. [17] There is a statutory exception in the case of a legitimate child whose parents are living apart. [18] It would be unreasonable if the child's domicile automatically followed that of the father in all cases even if, for example, the child was living with the mother in Scotland and the father had emigrated. The details of this exception, and the other refinements of the present law need not detain us. The important point is that the existing law makes a child's domicile depend on his or her legitimacy and that this has to be changed.

    17.13      The Scottish and English Law Commissions made joint recommendations on the law of domicile in 1987. [19] These have not yet been implemented. In the context of the abolition of the status of illegitimacy in Scots law it is clearly essential that the existing law on the domicile of children be changed. We therefore suggest that, if the joint report on domicile has not been implemented by the time this report is implemented, the Scottish law on the domicile of children should be changed in the way recommended in the joint report. We recommend that

    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

    17.14      The existing choice of law rules on legitimacy, illegitimacy and legitimation are uncertain [20] and, in so far as they give primacy to the father's domicile, old-fashioned. They would, in any event, have to be reframed if the status of illegitimacy were abolished. In a new code there ought to be clear new rules adapted to the new substantive law. If the law on the domicile of children were reformed as we have recommended[21] then it would be possible to have a very simple choice of law rule which would not be biased in favour of the father or the mother but would use the person's own domicile at the relevant time as the connecting factor. We suggested such a rule in the discussion paper, on the assumption that the joint recommendations of the two Commissions on domicile would be implemented, and it was supported by all those who commented on it.

    17.15      We recommend that

    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     
    The rules of jurisdiction and recognition and enforcement of foreign judgments in relation to aliment are very largely statutory. [1]They also reflect multilateral or bilateral arrangements with other countries. For this reason, we do not propose to discuss them here. We envisage that the statutory provisions on these matters would remain outside, and unaffected by, the proposed codification of Scottish family law. There is, however, a gap in the statute law in relation to choice of the law governing the obligation of aliment. This is the subject of this part of the report.

     

    Present law

    18.2      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. [2]In many cases, of course, the parties would gain no advantage from raising such questions as the other system of law would recognise that, say, a person was bound to support his or her spouse or child, any differences relating only to matters of procedure or quantification which are generally regarded as being matters for the lex fori in any event. In many cases, too, aliment will arise as an incidental matter in a divorce action and will tend to be subsumed under the rule that the lexfori governs such matters. The choice of law question was however clearly raised in one case [3] in which an impecunious man of mature years raised an action of aliment against various relatives including his mother who was resident and domiciled in England. She argued that by English law she was under no liability to support the pursuer. The court accepted the argument that English law applied and sisted the action to allow the opinion of English lawyers to be obtained. Here the law of the domicile of the alimentary debtor was apparently taken as the governing law. In another case [4]a woman claimed damages for seduction and aliment for her child from an Indian prince temporarily resident in Scotland. It was held that her right to recover aliment for her child depended on English law, which was the law of the place where the alleged seduction took place, and which was also the law of her domicile, but which was not the law of the defender's domicile. The case was treated primarily as an action for seduction and was decided on the ground that the acts complained of were notuctionable by the lex loci delicti-"the grounds of action having arisen entirely in England, the rights and liabilities of parties must be regulated by English law, and . . . as by that law the action was not ... maintainable, it must be dismissed."' [5] Two of the judges dealt separately with the aliment issue but seemed to assume that the same principles applied. [6]The case, therefore is strongly coloured by the delictual approach and is an unsatisfactory authority on aliment as such. A more sophisticated approach was favoured by Lord Keith in Jelfs v Jelfs [7] when he referred to Bar's opinion that the law of the residence governed the obligation to aliment although it would give effect to a more extensive duty of support sanctioned by the personal law, the underlying consideration being that "if a man was released from his obligation to maintain his wife, because his personal law knew of no such obligation, or ignored it in the particular circumstances of the case, a foreign wife would now and again require to be supported at the expense of the poor's box." [8]

    18.3      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. [9] It adopts the general principle that the law of the alimentary creditor's habitual residence governs the alimentary obligation, but it qualifies this general principle in several important respects. In the discussion paper we examined at some length the option of a solution based on the Hague Convention but concluded that it would have few advantages over a simple rule that a Scottish court dealing with a claim for aliment applies Scots law. Indeed, given that most actions for aliment in Scotland are brought by people who are habitually resident in Scotland, [10] the results under a Hague option and a lexfori option would generally be the same. As there was no support on consultation for a solution based on the Hague Convention we do not repeat our analysis of the modifications to the convention rules which would probably have to be made if a solution on these lines were to be acceptable in Scotland. [11]

     

    Recommendation

    18.5      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.

    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

    19.3      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. [2]There is no reason why Scotland should not eventually have a comprehensive code of child and family law. How this might best be achieved will depend largely on the legislative opportunities available. One possible approach, however, would be (a) to enact the draft Bill appended to this report, along with our earlier report on divorce law reform (where we recommended a reduction in the length of the periods of separation required, with a view to reducing the incentive which currently exists to resort to the fault-based behaviour ground for divorce), (b) to enact the changes in child care law which already have been, and may soon be, recommended, (c) to enact any changes in adoption law which may eventually be recommended by the inter-departmental review, and then (d) to use the consolidation procedure [3]to put everything together. This would be more efficient and more productive of early benefits than attempting to put everything together first in one giant Bill which would, to a large extent, simply reproduce existing provisions, which might involve long delay, and which would be very demanding of Parliamentary time and resources.

     

    Outline of a Scottish code of child and family law

    19.4      In our Discussion Paper No 85 we set out in outline the contents of a possible consolidated Act. Some of the headings in it were provisional, pending the results of consultation. They can now be firmed up and it may be useful to set out a revised and re-ordered version. We would emphasise that this is just one possible scheme and that it is not intended to restrict the freedom of action of whichever Parliamentary counsel is given responsibility for the consolidation. A consolidation would present the opportunity to introduce some coherence of language and style and to eliminate many spent, transitional and overlapping provisions. Therefore, when we refer below to the incorporation of existing provisions we are not implying that they would be reproduced exactly as they are.

    DRAFT OUTLINE OF A SCOTTISH CHILD AND FAMILY LAW CODE
    BOOK I-THE LAW RELATING TO CHILDREN
    TITLE I
    CHILDREN, NATURAL PARENTS AND GUARDIANS
    PART I
    PARENTAGE
    General rule.
    (Take in definition of "parent" from clause 47(1) of draft Bill.)
    Presumptions.
    (Take in section 5 of Law Reform (Parent and Child) (Scotland) Act 1986.)
    Use of samples of blood or other tissue.
    (Take in section 6 of 1986 Act and section 70 of Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.)
    Legal equality of children regardless of marital status of parents.
    (Take in section 1 of Law Reform (Parent and Child) (Scotland) Act 1986, as amended by draft Bill.)
    Declarators relating to parentage.
    (Take in from section 7(1) and 7(5) of 1986 Act, as amended by draft Bill.)
     
    PART II
    PARENTAL RESPONSIBILITIES AND RIGHTS
    (Take in clauses 1 to 6 of draft Bill.)
     
    PART III
    GUARDIANSHIP OF CHILDREN
    (Take in clauses 7 and 8 of draft Bill.)
     
    PART IV
    ADMINISTRATION OF CHILDREN'S PROPERTY
    (Take in clauses 9 and 10 of draft Bill.)
     
    PART V
    COURT ORDERS RELATING TO PARENTAL RESPONSIBILITIES AND
    RIGHTS ETC.
    (Take in clauses 11 to 16 of draft Bill.)
     
    PART VI
    PRIVATE INTERNATIONAL LAW
    Domicile of children.
    (Take in clause 45 of draft Bill.)
    Choice of law determining child's status.
    (Take in clause 46 of draft Bill.)
    Jurisdiction in actions for declarator of parentage.
    (Take in from section 7(2), (3) and (6) of Law Reform (Parent and Child) (Scotland) Act 1986.)
    Jurisdiction in actions relating to parental responsibilities and rights and guardianship.
    (Take in from Family Law Act 1986.)
    Jurisdiction in actions relating to administration of child's property.
    (Take in clause 18 of draft Bill.)
    Choice of law on parental responsibilities and rights and guardianship.
    (Take in clause 17-of draft Bill.)
     
    TITLE II
    LEGAL PARENTAGE
    PART I
    ADOPTION
    (Take in from Adoption (Scotland) Act 1978, as amended (a) by draft Bill and (b) as a result of current interdepartmental review of adoption law.)
     
    PART 11
    OTHER CASES
    (Take in sections 27 to 30 of the Human Fertilisation and Embryology Act 1990.)
     
    TITLE III
    FOSTERING OF CHILDREN
    (Take in from Foster Children (Scotland) Act 1984.)
     
    TITLE IV
    LOCAL AUTHORITIES' POWERS AND DUTIES IN RELATION TO CARE
    AND PROTECTION OF CHILDREN
    (Consolidate existing legislation, with any amendments made as a result of the Review of Child Care Law in Scotland and other current inquiries.)
     
    BOOK 11-THE LAW RELATING TO MARRIAGE AND DIVORCE
    TITLE I
    MARRIAGE
     
    PART I
    ENGAGEMENT TO MARRY
    (Take in Law Reform (Husband and Wife) (Scotland) Act 1984.)
     
    PART 11
    FORMATION OF- MARRIAGE.
    (Take in Marriage (Scotland) Act 1977, as amended by draft Bill.)
     
    PART III
    NULLITY OF MARRIAGE.
    Grounds.
    (Take in clause 21---ofdraft Bill.)
    Actions relating to validity or nullity of marriage.
    Competency.
    (Take in clause 23 of draft Bill.)
    Need for evidence.
    (Take in section 8 of Civil Evidence (Scotland) Act 1988.)
    Power to award financial provision in action for declarator of nullity.
    (Take in section 17 of Family Law (Scotland) Act 1985.)
     
    TITLE II
    LEGAL EFFECTS OF MARRIAGE
    PART I
    GENERAL
    Legal equality and independence of spouses.
    (Take in clause 24 of draft Bill.)
     
    PART II
    PROVISIONS RELATING TO THE MATRIMONIAL HOME
    Occupancy rights.
    (Take in occupancy rights provisions from Matrimonial Homes (Family Protection) (Scotland) Act 1981, as amended by draft Bill.)
    Protection from domestic violence.
    (Take in matrimonial interdicts provisions from Matrimonial Homes (Family Protection) (Scotland) Act 1981, as amended by draft Bill.)
     
    PART III
    OTHER SPECIAL RULES
    Household goods.
    (Take in section 25 of Family Law (Scotland) Act 1985.)
    Savings from housekeeping allowance.
    (Take in section 26 of Family Law (Scotland) Act 1985.)
    Policies of assurance.
    (Take in from Married Women's Policies of Assurance (Scotland) Act 1880.)
     
    TITLE III
    DIVORCE
    Ground.
    (Take in section 1(1) and (2) of Divorce (Scotland) Act 1976, with amendments recommended in our report on Reform of the Ground for Divorce 1989.)
    Defences and bars.
    (Take in section 1(3) of Divorce (Scotland) Act 1976, as amended by draft Bill.)
    Encouragement of reconciliation.
    (Take in section 2 of Divorce (Scotland) Act 1976.)
    Need for evidence and standard of proof.
    (Take in from section 8 of Civil Evidence (Scotland) Act 1988, and section 1(6) of Divorce (Scotland) Act 1976.)
     
    TITLE IV
    PRIVATE INTERNATIONAL LAW
    Jurisdiction in actions for divorce, declarator of marriage or nullity of marriage.
    (Take in from Domicile and Matrimonial Proceedings Act 1973.)
    Choice of law rules on validity of marriages.
    (Take in clause 31(1) to (4) of draft Bill.)
    Choice of law rules on legal effects of marriage.
    (Take in clause 32 of draft Bill.)
    Choice of law rule in divorce.
    (Take in clause 31(5) of draft Bill.)
    Recognition of foreign divorces, annulments and separations.
    (Take in from Part 11 of Family Law Act 1986.)
     
    BOOK Ill-FINANCIAL OBLIGATIONS IN RELATION TO CHILDREN AND SPOUSES
    TITLE I
    ALIMENT
    (Take in from Family Law (Scotland) Act 1985, and clause 43 of draft Bill.)
     
    TITLE II
    FINANCIAL PROVISION ON DIVORCE
    (Take in from Family Law (Scotland) Act 1985. Also take in rules on financial provision after foreign divorce from Part 1V of Matrimonial and Family Proceedings Act 1984.)
     
    BOOK IV-LEGAL EFFECTS OF COHABITATION
    (Take in clauses 33 to 42 of draft Bill.)

    Part XX Summary of Recommendations

    1. (a) There should be a statutory statement of parental responsibilities.

    (b) It should be provided that a parent has in relation to his or her child a responsibility, so far as is practicable and in the interests of the child,
    (i) to safeguard and promote the child's health, development and welfare
    (ii) to provide, in a manner appropriate to the child's stage of development, direction and guidance to the child
    (iii) if not living with the child, to maintain personal relations and direct contact with the child on a regular basis
    (iv) to act as the child's legal representative and, in that capacity, to administer, in the interests of the child, any property belonging to the child.
    (c) The parental responsibilities to safeguard and promote the child's health, development and welfare and to provide appropriate direction and guidance should last until the child attains the age of 18. The other responsibilities mentioned should last until the child attains the age of 16.
    (d) The above responsibilities should be in addition to any other statutory parental duties or responsibilities, including those relating to financial support under the Family Law (Scotland) Act 1985 and the Child Support Act 1991 and those relating to education under the Education (Scotland) Act 1980.
    (Paragraphs 2.1 to 2.13. Draft Bill, clause l.)

    2. It should be made clear that parents have parental rights in order to enable them to fulfil their parental responsibilities.

    (Paragraph 2.14. Draft Bill, clause 2(1).)

    3. The existing parental rights of guardianship, custody and access should be replaced by new rights expressed in such a way as to reflect the policy that both parents, even after separation, normally have a continuing parental role to play in relation to the upbringing of the child.

    (Paragraphs 2.15 to 2.35. Draft Bill, clause 2(2).)

    4. In addition to any rights conferred by any other enactment a parent should have the right, so long as the child is under the age of 16,

    (a) to have the child living with him or her, or otherwise to regulate the child's residence
    (b) to control, direct or guide, in a manner appropriate to the child's stage of development, the child's upbringing
    (c) if not living with the child, to maintain personal relations and direct contact with the child and
    (d) to act as the child's legal representative and, in that capacity to administer the child's property, and to act, or give consent,, on behalf of the child in any transaction having legal effect where the child is incapable of acting or consenting on his or her own behalf.
    (Paragraphs 2.15 to 2.35. Draft Bill, clause 2(1) and (4).)

    5. In the absence of any court order regulating the position, both parents of the child should have parental responsibilities and rights whether or not they are or have been married to each other.

    (Paragraphs 2.36 to 2.50. Draft Bill, clause 3(1).)

    6.(a) It should continue to be the position that, where two or more persons have any parental right, each of them may exercise that right without the consent of the other person or persons, unless any decree or deed conferring the right provides otherwise.

    (b) However, none of those persons should be entitled to remove a child from, or to retain a child outwith, the United Kingdom without the consent of the parent (or other person entitled to control the child's residence) with whom the child is habitually resident in Scotland.
    (Paragraph 2.56. Draft Bill, clause 2(2) and (3).)

    7. It should be provided that the fact that a person has parental responsibilities or rights in relation to a child does not entitle him or her to act in any way which would be incompatible with any court decree relating to the child, or the child's property, or any supervision requirement relating to the child made by a children's hearing.

    (Paragraph 2.57. Draft Bill, clause 3(3).)

    8. It should be provided that

    (a) a person who has parental responsibilities or rights in relation to a child may not surrender or transfer any part of these responsibilities or rights to another but may arrange for some or all of them to be met or exercised by one or more persons acting on his or her behalf;
    (b) the person with whom any such arrangement is made may be a person who already has parental responsibilities or rights in relation to the child concerned;
    (c) the making of any such arrangement does not affect any liability of the person making it which may arise from any failure to meet any part of his or her parental responsibilities for the child concerned.
    (Paragraph 2.58. Draft Bill, clause 3(4) to (6).)

    9. A person over the age of 16 years who does not have parental responsibilities or rights in relation to a child but has care or control of the child (other than as a teacher in a school) should be empowered to do what is reasonable in all the circumstances (and, in particular, to give legally effective consent to any medical or dental treatment or procedure where the child is not capable of consenting on his or her own behalf) for the purpose of safeguarding the child's health, development or welfare.

    (Paragraph 2.59. Draft Bill, clause 5.)

    10. (a) It should be provided that any person taking any major decision relating to a child in the exercise of any parental responsibility or right should, whenever practicable, ascertain the views of the child regarding the decision and give due consideration to them, having regard to the child's age and maturity.

    (b) For this purpose there should -be a presumption that a child of the age of 12 or more has sufficient maturity to express a reasonable view regarding the decision, but this should not carry any implication that the views of a child under that age are not worthy of consideration.
    (c) A transaction entered into in good faith by a third party dealing with a parent or other person acting as a child's legal representative should not be open to challenge on the ground that the Child was not consulted or that due consideration was not given to the child's views.
    (Paragraphs 2.60 to 2.66. Draft Bill, clause 6.)

    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.
    (Paragraphs 2.67 to 2.105. Draft Bill, clause 4 and Schedule 2.)

    12. (a) The references to the parent being the "guardian" of the child in section 4 paragraph (b) of the Law Reform (Parent and Child) (Scotland) Act 1986, as amended, should, as a consequence of the changes recommended earlier, become references to the parent being entitled to act as the child's legal representative.

    (b) The reference to a "person" in section 4 of the 1986 Act should become a reference to an individual.
    (Paragraph 3.2. Draft Bill, clause 7.)

    13. A guardian of a child should be able to appoint another individual to take his or her place as the child's guardian in the event of his or her death.

    (Paragraph 3.4. Draft Bill, clause 7(2).)

    14. An appointment of a guardian by a parent or existing guardian should, for the purposes of any provision implementing Recommendation 10 above (views of children be taken into consideration, depending on age and maturity) be regarded as a major decision involving the exercise of a parental right.

    (Paragraph 3.5. Draft Bill, clause 7(6).)

    15. Provision should be made for the revocation of an appointment of a nominated guardian, on similar lines to the provisions in section 6(1) to (4) of the Children Act 1989 (set out in paragraph 3.6).

    (Paragraphs 3.6 to 3.7. Draft Bill, clause 8(1) to (4).)

    16. An appointment as guardian should not take effect until accepted, either expressly, or impliedly by acts which are not consistent with any other intention.

    (Paragraph 3.8. Draft Bill, clause 7(3).)

    17. If two or more persons are appointed as guardians any one or more should be able to accept office-, even if both or all do not accept, unless the appointment expressly provides otherwise.

    (Paragraph 3.9. Draft Bill, clause 7(4).)

    18.(a) A guardian should have the same responsibilities in relation to the child as a parent has.

    (b) To enable him or her to fulfil these responsibilities a guardian should have the same parental rights as a parent has.
    (Paragraphs 3.13 to 3.15. Draft Bill, clause 7(5).)

    19. Once a guardian has accepted office then, unless the appointment provides for earlier termination, guardianship should be terminated only by

    (a) the child's attaining the age of 18 years,
    (b) the death of the child or the guardian, or
    (c) a court order.
    (Paragraph 3.16. Draft Bill, clause 8(5).)

    20. (a) The powers available to the courts to make special provision for sums payable to children should be extended and generalised and should be the same for all courts.

    (b) Where in any court proceedings a sum of money becomes payable to, or for the benefit of, a person under legal disability by reason of non-age the court should have power to make such order relating to the payment and management of the money for the benefit of that person as it thinks fit.
    (c) The court's power should expressly include
    (i) power to appoint a judicial factor, with appropriate powers, to invest, apply or otherwise deal with, the money for the benefit of the person concerned,
    (ii) power to order the money to be paid to the sheriff clerk or the Accountant of Court, to be
    invested, applied or otherwise dealt with, under the directions of the court, for the benefit of the person concerned,
    (iii) power to order the money to be paid to the parent or guardian of the person concerned, to be invested, applied or otherwise dealt with, as directed by the court, for the benefit of that person, and
    (iv) power to order payment to be made directly to the person concerned.
    (d) It should be made clear that the receipt of any person to whom payment is made in terms of the court's order is a - sufficient discharge.
    (Paragraphs 4.3 to 4.8. Draft Bill, clause 16.)

    2 1. (a) Where an executor or trustee holds property owned by, or due to, a child under the age of 16, and the amount or value of the property exceeds £20,000 the executor or trustee should be bound, before handing over the property to the parent or guardian of the child to be administered by the parent or guardian (otherwise than as a trustee under a trust deed) to report to the Accountant of Court that the property is due to be handed over, and to seek the Accountant's directions.

    (b) Where (in a case not covered by paragraph (a) above and not covered by our proposals on sums payable in court proceedings) any person holds property owned by, or due to, a child under the age of 16, and the amount or value of the property exceeds £5,000, the person may, at his or her option, before handing over the property to the parent or guardian to be administered by the parent or guardian (otherwise than as a trustee under a trust deed), report the matter to the Accountant of Court and seek the Accountant's directions.
    (c) Where a report, and request for directions, has been received by the Accountant of Court he or she should have power
    (i) to apply to the court for the appointment of a judicial factor (who could be the parent or guardian) and to direct that all or part of the property be transferred to the judicial factor,
    (ii) to administer all or part of the property on behalf of the child and to direct that the property be transferred to him or her for that purpose,
    (iii) to direct that all or part of the property be transferred to the parent or guardian subject to such conditions, if any, as the Accountant may consider appropriate, which conditions may include a requirement to have the Accountant's approval of capital expenditure and to exhibit annually the securities and bank books representing the capital of the estate.
    (d) A person who has reported to the Accountant of Court, and sought his or her directions, under these provisions should not be free to transfer the property except in accordance with the Accountant's directions.
    (Paragraphs 4.10 to 4.17. Draft Bill, clause 9.)

    22. The court's powers to make orders relating to children should expressly include power to make orders relating to the administration of a child's property and, in particular, power to appoint a judicial factor, where appropriate, or to order a remit to the Accountant of Court to consider and report on suitable arrangements for - the future management of the property.

    (Paragraph 4.18. Draft Bill, clauses 11(1) and 12(1)(e).)

    23. It should be made clear that, subject to the obligation of the parent or guardian to account to the child, the right of legal representation in relation to a child carries with it the right to do any act in relation to the child's property which the child is legally incapable of doing but could have done if of full age and capacity.

    (Paragraphs 4.19 to 4.20. Draft Bill, clause 10(3)(b).)

    24. A parent or guardian acting as a child's legal representative in relation to the child's property should no longer be regarded as a trustee for the purposes of the Trusts (Scotland) Acts.

    (Paragraph 4.21. Draft Bill, Schedule 2.)

    25.(a) A parent or guardian who has, as a child's legal representative, held, administered or dealt with the child's property should continue to be liable (as under the existing law) to account to the child, when the parent or guardian ceases to be the child's legal

    (b) In accounting, the parent or guardian should not be liable to the child in respect of any of the child's funds used in the proper discharge of the parent's or guardian's responsibility to promote the child's welfare.
    (c) A parent or guardian acting as a child's legal representative in relation to the administration of the child's property should be required to act in that capacity as a reasonable and prudent person would act on his or her own behalf.
    (Paragraphs 4.22 to 4.23. Draft Bill, clause 10.)

    26. (a) The existing law on court orders relating to parental rights should, as a consequence of changes recommended earlier in this report, be expanded to cover not only parental rights but also parental responsibilities, guardianship and the administration of a child's property.

    (b) Without prejudice to the, generality of the court's powers to make such orders as it thinks fit, it should be provided that a court may, on an application for an order relating to any of the above matters, make any one or more of the following orders
    (i) an order ("a residence order") regulating the arrangements to be made as to the person with whom a child is to live;
    (ii) an order ("a contact order") regulating the arrangements to be made for maintaining personal relations and direct contact between a child and a parent, or other person, with whom the child is not, or will not be, living;
    iii) an order ("a specific issue order") regulating any specific question which has arisen, or which may arise, in connection with any of the matters mentioned in paragraph (a) above;
    (iv) an interdict prohibiting the taking of any step in the exercise of parental responsibilities or parental rights or guardianship of a child, or the administration of a child's property.
    (Paragraphs 5.1 to 5.4. Draft Bill, clauses 11(1) and 12(1).)

    27. For the avoidance of any doubt, it should be made clear that a court in an order relating to parental responsibilities or rights or guardianship may

    (a) deprive a person of some or all of his or her parental responsibilities or rights
    (b) appoint or remove a guardian.
    (Paragraph 5.5. Draft Bill, clause 12(4).)

    28. It should be made clear that a local authority cannot by-pass the normal rules on compulsory measures of care or assumptions of parental rights by applying for guardianship or for a residence order or a contact order. However, a local authority should be able to apply for a specific issue order or an interdict.

    (Paragraphs 5.7 to 5.8. Draft Bill, clause 11(4).)

    29. There is no need to place any restrictions on applications by local authority foster parents for orders relating to parental responsibilities or rights.

    (Paragraph 5.9. No legislation required.)

    30. Section 47 of the Children Act 1975 should be repealed.

    (Paragraph 5.10. Draft Bill, Schedule 2.)

    31. For the avoidance of any doubt it should be made clear that the child concerned may apply for an order relating to parental responsibilities or rights, guardianship or the administration of his or her property.

    (Paragraph 5.11. Draft Bill, clause 11(3).)

    32. (a) Section 38C of the Sheriff Courts (Scotland) Act 1907 and section 20(1) of the Court of Session Act 1988 should be repealed.

    (b) It should be provided that an application for an order relating to parental responsibilities or rights, guardianship or the administration of a child's property may be made either
    (i) in independent proceedings in the Court of Session or a sheriff court (whether or not the application is accompanied by an application for any other remedy which can competently be sought in those proceedings) or
    (ii) in an action for divorce or for a declarator of marriage, nullity of marriage, parentage or non-parentage.
    (Paragraphs 5.12 to 5.14. Draft Bill, clauses 11(2) and 19 and Schedule 2.)

    31(a) It should be provided that a court should not make any order relating to parental responsibilities, parental rights, guardianship or the administration of a child's property unless satisfied that making the order will be better for the child than making no such order at all.

    (b) In relation to orders relating to the administration of a child's property the court's duty to regard the welfare of the child as the paramount consideration, and not to make any order unless satisfied that to do so would be in the interests of the child and better than making no order at all, should be qualified by a provision protecting the position of third parties who have acquired any property of the child, or any right or interest in relation to it, in good faith and for value.
    (Paragraphs 5.16 to 5.18. Draft Bill, clause 12(3).)

    34. (a) Rules of court should ensure that a child who is capable of forming his or her own views and who wishes to have his or her views put directly before a court in any proceedings relating to parental responsibilities or rights, or guardianship or the administration of the child's property, has a readily available procedural mechanism for doing so.

    (b) In considering whether to make an order relating to parental 'responsibilities or rights, or guardianship or the administration of a child's property a court should be required to give due consideration to any relevant views 6f the child concerned which are properly before it, taking account of the child's age and maturity.
    (c) Without prejudice to the generality of the rules recommended above, it should be presumed that a child of or above the age of 12 years is capable of forming his or her own views and has sufficient maturity to express a reasonable view.
    (d) The new rules recommended above are not intended to require a child who is not an independent party to the proceedings to be separately legally represented.
    (Paragraphs 5.24 to 5.29. Draft Bill, clause 12(5)and (6).)

    35. Section 8 of the Matrimonial Proceedings (Children) Act 1958 (court's duty in relation to arrangements for children) should be replaced by a provision, on the lines of section 41 of the Matrimonial Causes Act 1973 as substituted by the Children Act 1989, requiring the court in an action for divorce or nullity of marriage, to consider

    (a) whether there are any children of the family under the age of 16 and
    (b) if so, whether the court should make any order relating to them even if none has been applied for by the parties.
    (Paragraphs 5.30 to 5.35. Draft Bill, clause 14. See also clause 12(2)(a).)

    36. For the purposes of the preceding recommendation "child of the family" in relation to the parties to a marriage should mean

    (a) a child of both of those parties; and
    (b) any other child, not being a child who is placed with those parties as foster parents by a local authority or voluntary organisation, who has been treated by both of those parties as a child of their family.
    (Paragraph 5.36. Draft Bill, clause 14(4).)

    37. Where a court makes a residence order to the effect that a child is to live with a person who is not a parent or guardian of the child concerned, that person should have parental responsibilities and rights in relation to the child while the residence order is in force.

    (Paragraphs 5.37 to 5.38. Draft Bill, clause 13(2).)

    38. A court order by which any person acquires any parental responsibility or right should deprive any other person of any parental responsibility or right only in so far as the order expressly so provides and only to the extent necessary to give effect to the order.

    (Paragraph 5.39. Draft Bill, clause 13(1).)

    39. (a) Whether a person has, by operation of law, parental responsibilities and rights (as these terms are used in this report) in relation to a child, and the nature and extent of those responsibilities and rights, should depend on the law of the child's habitual residence.

    (b) However, the applicability of any rules designed for the immediate protection of the child should depend on the law of the place where the child is for the time being.
    (c) These rules should be subject to the rule that in court proceedings in Scotland relating to parental responsibilities and rights the welfare of the child is the paramount consideration.
    (Paragraphs 6.1 to 6.3. Draft Bill, clause 17(1)(2) and (3).)

    40.(a) The question whether a person is validly appointed or constituted guardian of a child should depend on the law of the child's habitual residence at the time the appointment is made (which, in the case of a testamentary appointment, should be regarded as the date of the appointer's death) or the constituting event occurs.

    (b) The responsibilities and rights of a guardian of a child at any time should depend on the law of the child's habitual residence at that time.
    (c) However, the applicability of any rules designed for the immediate protection of the child should depend on the law of the place where the child is for the time being.
    (d) The rules recommended in paragraphs (b) and (c) should be subject to the rule that in court proceedings in Scotland relating to guardianship the welfare of the child is the paramount consideration.
    (Paragraphs 6.4 to 6.6. Draft Bill, clause 17.)

    4 1. (a) The reporting duty recommended in recommendation 21 above should apply to any person who proposes to hand over property to, or to be administered by, the parent or guardian of a child habitually resident in Scotland.

    (b) The Court of Session should have jurisdiction to make orders relating to the administration of a child's property
    (i) if the child is habitually resident in Scotland or
    (ii) if the property is situated in Scotland.
    (c) A sheriff should have jurisdiction to make such orders
    (i) if the child is habitually resident in the sheriffdom or
    (ii) if the property is situated in the sheriffdom.
    (Paragraph 6.7. Draft Bill, clause 18.)

    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).
    (Paragraphs 7.1 to 7.13. Draft Bill, clause 22.)

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

    (Paragraph 8.3. Draft Bill, clauses 20 and 21(1).)

    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.

    (Paragraph 8.4. Draft Bill, clauses 20 and 21(1).)

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

    (Paragraph 8.5. Draft Bill, clauses 20 and 21(1).)

    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.

    (Paragraphs 8.6 to 8.13. Draft Bill, clauses 20, 21(1) and Schedule 2.)

    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 another marriage in reliance on its nullity.

    (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.
    (Paragraphs 8.14 to 8.15. Draft Bill, clause 21(1)(c), (5) and (7).)

    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 declarator 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.
    (Paragraphs 8.16 to 8.20. Draft Bill, clause 21(1)(b) and (2).)

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

    (Paragraphs 8.21 to 8.29. Draft Bill, clause 21(8).)

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

    (Paragraph 8.30. No legislation required.)

    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.

    (Paragraphs 9.1 to 9.2. Draft Bill, clause 23(1) and Schedule 1 paragraph 2.)

    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.
    (Paragraphs 9.3 to 9.5. Draft Bill, clause 23(2) and (3).)

    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.

    (Paragraphs 9.6 to 9.8. Draft Bill, Schedule 1, amendments to Domicile and Matrimonial Proceedings Act 1973, section 7.)

    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.

    (Paragraphs 10.1 to 10.8. Draft Bill, clause 24(c) and Schedule 2.)

    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 of the 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.
    (Paragraphs 11.3 to 11.23. Draft Bill, clause 26 and Schedule L)

    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.

    (Paragraphs 11.24 to 11.28. Draft Bill, clause 25.)

    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.
    (Paragraphs 11.30 to 11.33. Draft Bill, clause 27(1).)

    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.

    (Paragraphs 11.34 to 11.35. Draft Bill, clause 27(2).)

    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.

    (Paragraph 11.36. No legislation required.)

    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.

    (Paragraphs 11.37 to 11.39. Draft Bill, clause 27(3)..)

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

    (Paragraph 11.40. Draft Bill, clause 27(1).)

    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.

    (Paragraphs 11.41 to 11.45. Draft Bill, clause 27(4).)

    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.

    (Paragraph 11.46. Draft Bill, clause 28(b).)

    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.

    (Paragraph 11.47. 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.

    (Paragraph 11.48. Draft Bill, clause 28(c).)

    66. Judicial separation should be abolished.

    (Paragraphs 12.1 to 12.19. Draft Bill, clause -29.)

    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.

    (Paragraphs 13.1 to 13.4. Draft Bill, clause 30(1).)

    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.
    (Paragraphs 13.5 to 13.8. Draft Bill, clause 30.)

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

    (Paragraphs 13.9 to 13.12. Draft Bill, clause 30(3).)

    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.
    (Paragraphs 14.1 to 14.5. 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.
    (Paragraphs 14.6 to 14.7. 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.

    (Paragraphs 14.8 to 14.10. 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.

    (Paragraph 14.13. 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.

    (Paragraph 14.12. 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.

    (Paragraph 14.21. Draft Bill, clause 31(5).)

    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.

    (Paragraphs 15.1 to 15.3. No legislation required.)

    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.

    (Paragraphs 15.4 to 15.6. 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.
    (Paragraph 15.6. 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.

    (Paragraph 15.7. Draft Bill, clause 32(2).)

    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.
    (Paragraphs 16.7 to 16.11. Draft Bill, clause 34.)

    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.

    (Paragraphs 16.12 to 16.13. Draft Bill, clause 35.)

    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(1)(b) 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.
    (Paragraphs 16.14 to 16.23. Draft Bill, clause 36.)

    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.

    (Paragraphs 16.24 to 16.37. Draft Bill, clauses 37 and 38.)

    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.
    (Paragraphs 16.38 to 16.40. Draft Bill, clause 39.)

    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.
    (Paragraph 16.41 to 16.42. Draft Bill, clause 40.)

    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.
    (Paragraphs 16.43 to 16.45. Draft Bill, clause 41.)

    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.

    (Paragraph 16.46. Draft Bill, clause 41)

    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.
    (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.
    (Paragraphs 17.1 to 17.11. Draft Bill, clause 44 and Schedules 1 and 2.)

    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.
    (Paragraphs 17.12 to 17.13. Draft Bill, clause 45.)

    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.

    (Paragraphs 17.14 to 17.15. Draft Bill, clause 46.)

    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.

    (Paragraphs 18.1 to 18.5. Draft Bill, clause 43.)

    Appendix B

    List of those who submitted written comments on any or all of the propositions or questions put forward for consideration in Discussion Papers Nos. 85, 86 and 88.

    Mrs Moira Abbotts, Dundee
    The Accountant of Court
    Sylvia Alexander, Dundee
    Association of British Insurers
    Association of Chief Police Officers (Scotland)
    Association of Directors of Social Work
    Association of Reporters to Children's Panels
    Association of Scottish Police Superintendents
    Mrs Wendy Back, Birmingham
    Mrs Rona Baillie, Ayr
    Andrew Bainham, University of East Anglia
    Kristin Barrett, Blairgowrie
    Mr & Mrs R J Barton, Romford
    Professor Alastair Bissett-Johnson, University of Dundee
    British Agencies for Adoption and Fostering
    British Association of Social Workers
    British Psychological Society
    Stewart Brunton, Dundee
    Building Societies Association
    Business and Professional Womens Club (Inverclyde Branch)
    Rev K Campbell, Dundee
    CARE, (Christian Action Research and Education), in Scotland
    Childrens Legal Centre (England and Wales)
    Childwatch (English Registered Charity)
    Citizens Advice Scotland
    City of Edinburgh District Council, Women's Committee
    Committee of Scottish Clearing Bankers
    Convention of Scottish Local Authorities
    Lord Coulsfield
    Court of Session Judges
    Dr E B Crawford, University of Glasgow
    Professor S M Cretney, University of Bristol
    Mrs N Davidson, Glasgow'
    De(*chairs. Collective, Edinburgh
    Dr E G Dick, Dundee
    Anne Dickson, Solicitor, Glasgow
    Dundee Association of University Women
    Edinburgh Association of University Women
    EPOCH (End Physical Punishment of Children)
    Mrs J Ewbank, Oxford
    Faculty of Advocates
    Family Charter Campaign
    Family Law Association
    John Fotheringham, Solicitor, Inverkeithing
    Free Church of Scotland
    Free Presbyterian Church of Scotland
    Professor M D A Freeman, University College, London
    Dr James R G Furnell, Consultant in Child Clinical Psychology, Stirling
    Eric Galloway, Blairgowrie
    John M K Galloway, Edinburgh
    Mrs R Garforth-Bles, London
    Mrs J Gevers, Dundee
    Andrew T F Gibb, Solicitor, Edinburgh
    Mrs J Gibson, Jedburgh
    Glasgow Association of University Women
    Dr 1 A Glen, Airdrie
    Professor W M,Gordon, University of Glasgow
    Grampian Regional Council, Department of Social Work
    George L Gretton, University of Edinburgh
    Dr Anne Griffiths, University of Edinburgh
    Mrs S Hamilton, Dundee
    Hamilton Womens Aid
    Mrs M H Henderson, Dundee
    Humanist Society of Scotland
    Alice Ann Jackson, University of Strathclyde
    George Jamieson, Solicitor, Paisley
    Daniel Johnston, Carnoustie
    Mrs B J Kahan, OBE, Oxfordshire
    Kidscape (Campaign for Children's Safety)
    Elizabeth Kingdom, University of Liverpool
    Mrs C F Kingston, Bristol
    Mr & Mrs S Lafferty, Dundee
    Law Society of Scotland
    Dr Penelope Leach, Clinical Psychologist, London
    Dr Robert Leslie, Dean of the Faculty of Law, University of Edinburgh
    David Lessels, University of Aberdeen
    The Lord Lyon King of Arms
    Mr C McCanna, Enfield
    Mr J McColl, Huntly
    Mr & Mrs S McKay, Aberdeen
    Dr 1 Mackie, Dundee
    Norman D MacLeod QC, Sheriff Principal of Glasgow and Strathkelvin
    N M Macnaughtan, Edinburgh
    D J McNeil, Solicitor, Edinburgh
    J J Maguire, Sheriff Principal of Tayside, Central and Fife
    Mrs A Marshall, Wolverhampton
    Mrs J Martin, Romford
    Mr M Martin, Dundee
    K R Matthews, Wiltshire
    Russell Meek, Broughty Ferry
    Alastair Mennie, Advocate
    Alison Mills, Nottingham
    Ann Mitchell, Edinburgh
    Dr A J Montgomery, Dundee
    Mrs C H Montgomery, Grantown-on-Spey
    Mr J C D Montgomery, Grantown-on-Spey
    Jonathan Montgomery, University of Southampton
    Mrs N Montgomery, Dundee
    Mrs T Morrison, Dundee
    Mothers Union in Scotland
    National Association of Social Workers in Education
    National Childminding Association
    National Children's Bureau: Scottish Group
    Kenneth McKnorrie, University of Strathclyde
    C A Partington, County Durham
    Mrs K Patterson, Cheshire
    Mrs L Pawley, Carnoustie
    Perth Assowiation of University Women
    Mr & Mrs R J Pooley, Wales
    Rev D Prentis, Banchory
    Procurators Fiscal Society
    Mr D Rankin, Inverness
    Regional Sheriff Clerks
    Reporter to the Children's Panel in Lothian Region
    Reporter to the Children's Panel in Tayside Region
    Dr Peter Robson, University of Strathclyde
    Mr & Mrs C Rose, Edinburgh
    Dr Dorothy Rowe, Clinical Psychologist, Sheffield
    Royal Scottish Society for the Prevention of Cruelty to Children
    Professor H R Schaffer, Department of Psychology, University of Strathclyde
    Scottish Association of Family Centres
    Scottish Association of Family Conciliation Services
    Scottish Child and Family Alliance
    Scottish Child Law Centre
    Scottish Convention of Women
    Scottish Council for Single Parents
    Scottish Legal Action Group
    Scottish Pre-School Play Association
    Scottish Society for the Mentally Handicapped
    Scottish Womens Aid
    Sheriffs Association
    W D H Sellar, Faculty of Law, University of Edinburgh
    Mr K D Smith, Bristol
    Mr & Mrs Southwick, Dundee
    Mrs C Stewart, Dundee
    Supreme Courts (Senior Management)
    Elaine Sutherland, University of Glasgow
    Tor Sverne, Sweden
    Mrs D M Temple, Edinburgh
    Professor J M Thomson, University of Glasgow
    Truro Christian Concern
    Voluntary Organisations Liaison Council for Under Fives
    Professor D M Walker, University of Glasgow
    Mrs S Watson, Edinburgh
    Mr A T de B Wilmot, Kent
    Dr R C Witcomb, Cheltenham
    Working for Childcare
    Youthscan

Footnotes for Part XIII

Note 1.    Marshall v Marshall (1881) 8 R 702. Contrast Hunter v Hunter (1883) 11 R 359 where the husband's words were not intended to be taken seriously.     [Back]

Note 2.    Hannah v Hannah 1931 SC 275; Riddell v Riddell 1952 SC 475.    [Back]

Note 3.    McMahon v McMahon 1928 SN 37 and 158. But cf CD v AB 1908 SC 737.    [Back]

Note 4.    Cf Thomson v Thomson 1908 SC 179.    [Back]

Note 5.    Gallacher v Gallacher 1928 SC 586 and 1934 SC 339.    [Back]

Note 6.    Para 8.4.    [Back]

Note 7.    See eg Fairgrieve v Chalmers 1912 SC 745 at 747-"there never can be collusion unless you can show facts which, if proved, would show that the oath of calumny had been falsely sworn".    [Back]

Note 8.    See Walker v Walker 1911 SC 163 at p168; Fairgrieve v Chaimers.1912 SC 745 at p747; Riddell v Riddell 1952 SC 475 at p482.    [Back]

Note 9.    S9(3).    [Back]

Note 10.    S8(2).    [Back]

Note 11.    S9(1)(e).    [Back]

Note 12.    1978 SLT (Notes) 55.    [Back]

Note 13.    1979 SC 40.    [Back]

Note 14.    See Law Com No 112 (1981) para 17; Matrimonial and Family Proceedings Act 1984,     [Back]

Note 15.    Family Law (Scotland) Act 1985, s10(1) and (5).    [Back]

Note 16.    Social Security Act 1975 s29(1)(2) and (9).    [Back]

Note 17.    Social Security (Widow's Benefit etc) Regulations 1979, para 8.    [Back]

Footnotes for Part XII

Note 1.    Divorce (Scotland) Act 1976, ssl and 4.    [Back]

Note 2.    Conjugal Rights (Scotland) Amendment Act 1861 s6.    [Back]

Note 3.    Ibid.    [Back]

Note 4.    See now the Family Law (Scotland) Act 1985, s24.    [Back]

Note 5.    Scot Law Com No 124 (1990) para 7.33.    [Back]

Note 6.    See Symon (ed), Housing and Divorce (Centre for Housing Research, Glasgow University, Studies in Housing No. 4, 1990) p86.    [Back]

Note 7.    S20(2)(b)(ii).    [Back]

Note 8.    Family Law (Scotland) Act 1985, s2.    [Back]

Note 9.    Housing (Scotland) Act 1987, s20(2)(b)(ii).    [Back]

Note 10.    The action for adherence was abolished by the Law Reform (Husband and Wife) (Scotland) Act 1984 s2(1). Even before that a decree for adherence would not be enforced. See Hastings v Hastings 1941 SLT 323 at p325.    [Back]

Note 11.    Divorce (Scotland) Act 1976 sl(2)(c). In our report on Reform of the Ground for Divorce (Scot Law Com No 116, 1989) we recommended the abolition of divorce for desertion, which is now little used.    [Back]

Note 12.    Platts, The Use of Judicial Separation (Scottish Office, Central Research Unit, 1992) Chap 2, para 2 ("Platts").    [Back]

Note 13.    Platts, Chap 2, para.2.    [Back]

Note 14.    Platts, Chap 4,.para 6. "Only one third of actions in the sample studied (all of which were raised in 1989) had proceeded to decree by the time of the data collection exercise (summer 1991)". See also Chap 2, para 19. "Court staff suggested that it was unlikely that any further action would take place in many of the 'ongoing' cases".    [Back]

Note 15.    Platts, Chap 3, para 41.    [Back]

Note 16.    Platts, Chap 4, para 6.    [Back]

Note 17.    Platts, Chap 2, para 3.    [Back]

Note 18.    Platts, Chap 2, para 3.    [Back]

Note 19.    Platts, Chap Z, para 3.    [Back]

Note 20.    Platts, Chap 2, paras 7, 11 and 12.    [Back]

Note 21.    Platts, Chap 2, paras 14 to 18.    [Back]

Note 22.    Platts, Chap 2, para 22.    [Back]

Note 23.    Platts, Chap 2, para 9. In 80% of the small sample studied there were dependent children.    [Back]

Note 24.    See the quotations, dating from 1889, in Maidment, Judicial Separation (1982) pp73-75.    [Back]

Note 25.    As from 1 Jan 1974. See Schmidt "The Scandinavian Law of Procedure in Matrimonial Causes" in The Resolution of Family Conflict (Eekelaar & Katz, eds, 1984).    [Back]

Note 26.    Family Law Act 1975, s8(2).    [Back]

27 Matrimonial Causes Act 1989, s35.

Note 28.    This was why the Royal Commission on Divorce and Matrimonial Causes of 1912 (the Gorell Commission) recommended the retention of judicial separation in spite of criticising it as "an unnatural and unsatisfactory remedy". (Cd 6478). We have been informed, however, that the present position of the Roman Catholic church is that, while finding any marriage breakdown regrettable, it accepts that civil divorce proceedings may be a necessary and proper method of dealing with property matters., financial provision, the future of the children and so forth.    [Back]

Note 29.    Divorce (Scotland) Act 1976, s4.    [Back]

Note 30.    Platts, Chap 2 . para 11. In the sample of 45 cases examined there was only one on the ground of desertion and one on the ground of separation.     [Back]

Note 31.    In our report on Succession (Scot Law Com No 124, 1990, paras 7.28 to 7.33) we recommended that separation decrees obtained after the commencement of implementing legislation should have no effect on succession.    [Back]

Note 32.    Platts, The Use of Judicial Separation (Scottish Office, Central Research Unit, 1992).    [Back]

Note 33.    After 5 years of separation the other spouse could raise an action of divorce at any time, so "as long as possible" might mean five years at most if the other spouse wanted a divorce.    [Back]

Note 34.    Again this might mean five years at most.    [Back]

Note 35.    Under the existing law the power of arrest ceases to have effect on divorce. We have recommended above (para 11.39) that this should be changed.    [Back]

Note 36.    Platts, Chap 3, paras 5 and 33.    [Back]

Note 37.    Platts, Chap 3, para 35.    [Back]

Note 38.    Platts, Chap 3, para 35.    [Back]

Note 39.    Platts, Chap 3, para 20.    [Back]

Note 40.    Platts, Chap 3, para 24.     [Back]

Note 41.    Platts; Chap 3, para 22.     [Back]

Note 42.    Platts, Chap 4, para 7.    [Back]

Note 43.    Platts, Chap 3, para 30.    [Back]

Note 44.    C MacLure v MacLure 1911 SC 200; Millar v Millar 1940 SC 56.    [Back]

Note 45.    See the obiter dicta in Hislop v Hislop (1878) Guthrie's Select Cases (2nd series) 205 at 207.    [Back]

Note 46.    This was one of the reasons why the more effective remedies in the 1981 Act were considered necessary. See the consultative memorandum on Occupancy Rights in the Matrimonial Home and Domestic Violence (Scot Law Corn Memo 41, 1978) Vol 2 para 2.64.    [Back]

"While it is true that a decree of separation ... is in form a judicial order requiring one spouse to live apart from the other, and while it is also frequently said that the decree is granted for the protection of the pursuer, the decree does not in fact adequately protect the pursuer. If the defender attempts to resume cohabitation, the attempt is not visited by the court with any sanction for contempt of the court's decree. In truth, the decree is a mere declarator that the pursuer is entitled to live apart from the, defender, and the main legal effect is to entitle the pursuer to live apart without desertion ......

Note 47.    Matrimonial Homes (Family Protection) (Scotland) Act 1981, sl(l).    [Back]

Footnotes for Part XI

Note 1.    Scot Law Corn No 60 (1980).    [Back]

Note 2.    See Parl Debs (HL) (1980-81) Vol 417 cols 1000-1013; (HQ Scottish Grand Committee, 12 May 1981, cols 8, 155 17, 21, 26, 28, 34, 35.    [Back]

Note 3.    See Jackson, Robertson and Robson., (of the Law School, University of Strathclyde) The Operation of the Matrimonial Humes (Family Protection) (Scotland) Act 1981 (a report to the Scottish Home and Health Department, 1988) (referred to in the rest of this Part as the "Strathclyde report") p4.    [Back]

Note 4.    Scot Law Com No 60 (1980).    [Back]

Note 5.    Parl Deb, (HC) First Scottish Standing Committee, 16 June 1981, col 101 (Mr Riffind).    [Back]

Note 6.    1981 Act s6(3)(e) as amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.    [Back]

Note 7.    S8, as amended.    [Back]

Note 8.    By the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, s13.    [Back]

Note 9.    1981 Act s6(3)(f).    [Back]

Note 10.    It is arguable that such occupancy rights are not protected anyway because s6 says that the continued exercise of occupancy rights is not to be prejudiced "by reason only of any dealing of the entitled spouse relating to that home". A sale by a subsequent owner is not a dealing by the entitled spouse.    [Back]

Note 11.    See paras 11. 19 to 11.21 below. There is valuable information on housing policies and the 1981 Act in the Final Report of the Institute of Housing (Scottish Homeless Group) (University of Strathclyde) on Housing and Marital Breakdown-The Local Authority Response (Feb 1985).    [Back]

Note 12.    Cf O'Neill v O'Neill 1987 SLT (Sh Ct) 26 at p30; Fyfe v Fyfe 1987 SLT (Sh Ct) 38. See also Longtnuir v Longmuir 1985 SLT (Sh Ct) 33 for valuable observations about the procedure for applying for a dispensation. In Perkins v Perkins Glasgow Sheriff Court, 11 Dec 1984, (unreported but referred to in the Strathclyde report at p45) the sheriff dispensed with the husband's consent to a sale of the home by his wife. Among the sheriff's reasons were that the husband had not lived in the house for 2 years and had accommodation of his own. It appeared that his reason for withholding consent related to disagreement as to how the proceeds of sale should be divided.    [Back]

Note 13.    Para 11. 13.    [Back]

Note 14.    Paras 6.9 to 6.29. The options considered were (1) repeal of sections 6 to 9 (2) a new form of more limited protection, based on a judicial power to set aside certain dealings intended to defeat occupancy rights (3) a notice system and (4) minor modifications. Although there was some support for option (2) there was also strong opposition to it on well-argued grounds. The first three options would all be regarded as retrogressive by many consultees.    [Back]

Note 15.    A different view is, however, taken in Nichols and Meston, The Matrimonial Homes (Family Protection) (Scotland) Act 1981 (2d edn 1986) para 6.05.    [Back]

Note 16.    See Robertson, "The Matrimonial Homes (Family Protection) (Scotland) Act 198P' (1982) Journal of the Law Society of Scotland (Workshop) p308.    [Back]

Note 17.    Added by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, s13.    [Back]

Note 18.    1987 SLT (Sh Ct) 39 at p41.    [Back]

Note 19.    See e g Earl of Fife v Wilson (1864) 3 M 323; Glen v Roy (1882) 10 R 239; Cooke's Circus Buildings Co Ltd v Welding (1894) 21 R 339; County Council of Stirling v Cullen (1943) 59 Sh Ct Rep 83; HMV Fields Properties Ltd v Skirt 'n' Slack Centre of London Ltd 1987 SLT 2; Shetland Islands Council v B P Petroleum Development 1990 SLT 82.    [Back]

Note 20.    In the case of a public sector secure tenancy coming under the Housing (Scotland) Act 1988 the tenancy may be brought to an end by, among other things, "4 weeks' notice given by the tenant to the landlord". 1988 Act s46(1).    [Back]

Note 21.    Cf Morgan v Morgan and Kyle and Carrick District Council, Ayr Sheriff Court, 12 June 1984 (unreported-referred to in the Strathclyde Report at p43).    [Back]

Note 22.    It is by no means clear when it would be held to be unreasonable for a spouse to withhold consent in this situation. It is, however, clear that section 48 of the Housing (Scotland) Act 1987 could not be used to recover possession, there being no tenancy, no tenant and no landlord. It is arguable that if the landlord grants a tenancy to a new tenant, that tenant is not affected by s6, because his or her rights do not arise by reason only of a dealing by the entitled spouse.    [Back]

Note 23.    See, in particular, Gretton, "Matrimonial Homes Act-Conveyancing" 1990 J1-SS 412-417.    [Back]

Note 24.    Prescription and Limitation (Scotland) Act 1973, s8. This is on the assumption that the right is not a right exercisable as a res merae facultatis.     [Back]

Note 25.    Para 6.31.    [Back]

Note 26.    Family Law (Scotland) Act 1985, s18.    [Back]

Note 27.    See Brown v Brown 1985 SLT 376 at p379.    [Back]

Note 28.    See eg Brown v Brown 1985 SLT 376 at p378; Strathclyde report at pp101 and 159.    [Back]

Note 29.    See the Strathclyde report pp122-144.    [Back]

Note 30.    S14(2).    [Back]

Note 31.    In their Memorandum on the Matrimonial Homes (Family Protection) (Scotland) Act 1981 dated October 1983.    [Back]

Note 32.    In comments on the above Memorandum published in the Journal of the Law Society of Scotland (1984) at p436.    [Back]

Note 33.    We consider the definition of "matrimonial home" later. Here it is enough to note that it does not include a new home provided by a spouse (eg after separation) for himself or herself to live in, whether or not with children, separately from the other spouse. See s22.    [Back]

Note 34.    See para 11.34 below.    [Back]

Note 35.    See Tatters v Tatters 1983 SLT 506.    [Back]

Note 36.    Under the existing law it can be argued that section 14(1) does not expressly make a matrimonial interdict competent. See Tatters v Tatters, above, at p509.    [Back]

Note 37.    Section 1(3) deals with the situation where a non-entitled spouse who is not in occupation of the home seeks to enter and occupy it. It provides that- 'T the entitled spouse refuses to allow the non-entitled spouse to exercise the right [to enter and occupy], the non-entitled spouse may exercise that right only with the leave of the court. . .". For example, a violent husband who has been living apart for a year may return to find that his wife has changed the locks and refuses him entry. He may then be refused leave by the court to re-enter the home and assert his occupancy rights against the wishes of the other spouse. In such a situation an interdict against the husband attempting to force entry to the home should be available.    [Back]

38 . Para 6.37.

Note 39.    See 1984 Journal of the Law Society of Scotland 436 at p437 and the Strathclyde report at pp144 and 162.    [Back]

Note 40.    An interdict made in connection with an exclusion order will prohibit the interdicted spouse from entering the matrimonial home "without the express permission of the applicant". 1981 Act s4(4)(b). However, a matrimonial interdict under s14 might be quite general.    [Back]

Note 41.    There might, for example, be doubt about the precise extent of a prohibited area mentioned in the interdict. Cf the Strathclyde report p136.     [Back]

Note 42.    1981 Act s15(2).    [Back]

Note 43.    This follows from the definition of "matrimonial interdict" in s14(2).     [Back]

Note 44.    Para 6.41.    [Back]

Note 45.    S16.    [Back]

Note 46.    S17(1) and (2).    [Back]

Note 47.    S 17(4). Intimation should be made, where reasonably practicable, to "the solicitor who acted for [the other spouse] when the interdict was granted or to any other solicitor who the procurator fiscal has reason to believe acts for the time being for that spouse."    [Back]

Note 48.    Strathclyde report pp139-140, 142, 144.    [Back]

Note 49.    Ibid p140.    [Back]

Note 50.    Ibid p139.    [Back]

Note 51.    S17(5)(b)(ii) and (c) provided, of course, that he or she is not in custody in respect of any other matter.    [Back]

Note 52.    Strathclyde report p140.    [Back]

Note 53.    See Macphail, Sheriff Court Practice, p775.    [Back]

Note 54.    Paras 6.45 to 6.49.    [Back]

Note 55.    McRobbie v McRobbie 3 Aug 1983 (noted at 1984 Journal of the Law Society of Scotland p5).    [Back]

Note 56.    Para 11.33 above.     [Back]

Note 57.    See Nichols and Meston op cit para 2.14.     [Back]

Note 58.    Paras 16.38-16.40 below.    [Back]

Note 59.    Review of Child Care Law in Scotland (Scottish Office, 1990) pp43-44.    [Back]

Footnotes for Part X

Note 1.    Young v Young (1903) 5 F 330; Harper v Harper 1929 SC 220; Cameron v Glasgow Corporation 1935 SC 533; 1936 SC (M) 26.    [Back]

Note 2.    Young v Young (1903) 5 F 330.    [Back]

Note 3.    Horsburgh v Horsburgh 1949 SC 227.    [Back]

Note 4.    Law Reform (Husband and Wife) Act 1962, s2.    [Back]

Note 5.    1981 Act, s21.    [Back]

Note 6.    Ninth Report, Liability in Tort between Husband and Wife.    [Back]

Note 7.    Para 8.    [Back]

Note 8.    Para 9.    [Back]

Note 9.    Para 13.    [Back]

Note 10.    Para 17(2).    [Back]

Note 11.    Parl. Debs (HQ (1961-62) Vol 659 cols 1705-1708.    [Back]

Note 12.    Ibid col 1708 (Solicitor-General).    [Back]

Note 13.    Ibid col 1708 (Solicitor-General).    [Back]

Note 14.    Ibid cols,1707 and 1709 (Solicitor- General).    [Back]

Note 15.    Ibid cols 1695, 1698,1701 and 1710.    [Back]

Note 16.    Legal Aid (Scotland) Act 1986 s14(1).    [Back]

Note 17.    Ibid s13 and Sch 2, Part II, para 1    [Back]

Footnotes for Part IX

Note 1.    Civil Judicial Statistics for Scotland.    [Back]

Note 2.    See draft Bill, Sch 1 (amendments to Domicile and Matrimonial Proceedings Act 1973, s8).    [Back]

Note 3.    Domicile and Matrimonial Proceedings Act 1973, s7(3)(c).    [Back]

Note 4.    See M v Y 1934 SN 20; Rules of Court Appendix, Form 2, para 19.    [Back]

Note 5.    Domicile and Matrimonial Proceedings Act 1973, s7    [Back]

Note 6.    S61. This implemented a recommendation of the English Law Commission in its report on Declarations in Family Matters (Law Com No 132, 1984).    [Back]

Note 7.    See Law Com No 132 para 4.9.    [Back]

Note 8.    Family Law Act 1986, s55(1), implementing recommendations in Law Com No 132, cited above.    [Back]

Note 9.    Makouipour v Makouipour 1967 SC 116; Galbraith v Galbraith 1971 SLT 139; Bain v Bain 1971 SLT 141; Broit v Broit 1972 SLT (Notes) 32.    [Back]

Note 10.    See Family Law Act 1986, ss44-54.    [Back]

Note 11.    Para 4.6.    [Back]

Note 12.    See Domicile and Matrimonial Proceedings Act 1973, s7(3).    [Back]

Note 13.    See s8 of the 1973 Act.    [Back]

Note 14.    Draft Bill, Sch 1, (amendments to Domicile and Matrimonial Proceedings Act 1973, s10 and Sch 3).    [Back]

Footnotes for Part VIII

Note 1.    See Part XIV.    [Back]

Note 2.    This section was inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980. We consider later whether it could with advantage be slightly widened and strengthened. See para 8.14.    [Back]

Note 3.    Law Com No 33, 1970.    [Back]

Note 4.    See Part XIV.    [Back]

Note 5.    Cossey v United Kingdom ECHR 27 September 1990.    [Back]

Note 6.    This was also the view of article 12 taken by the court, unanimously, in the earlier decision of Rees v United Kingdom ECHR 17 October 1986.     [Back]

Note 7.    S2.    [Back]

Note 8.    1977 Act Sch 1, para 1.    [Back]

Note 9.    Marriage (Scotland) Act 1977, Sch 1 paras 2 and 2A, as substituted by the Marriage (Prohibited Degrees of Relationship) Act 1986.     [Back]

Note 10.    Marriage (Prohibited Degrees of Relationship) Act 1986.    [Back]

Note 11.    Marriage (Scotland) Act 1977, s2(1A), as inserted in 1986.     [Back]

Note 12.    1977 Act s2(1B), as inserted in 1986.    [Back]

Note 13.    See Parl Debs (M) (1985-86) Vol 471 cols 885-892.     [Back]

Note 14.    Ibid col 887. See also Vol 470 cols 957-960.     [Back]

Note 15.    Parl Debs (M) (1985-86) Vol 471 col 891.     [Back]

Note 16.    The Report was published in 1984.     [Back]

Note 17.    Para 100.     [Back]

Note 18.    Para 101.     [Back]

Note 19.    Para 102.     [Back]

Note 20.    Para 221.    [Back]

Note 21.    Para 221.In many states of the USA there are no prohibitions based on affinity.    [Back]

Note 22.    Para 276.    [Back]

Note 23.    Para 257.    [Back]

Note 24.    Para 258.    [Back]

25 This refers to the former spouse of the son-in-law or daughter-in-law and not to any spouse the parent-in-law might have had. See para 9 of the Report.

Note 26.    Para 274. The minority said that what they would really have liked to recommend was a return to the position as it was before the Marriage (Enabling) Act 1960 (when marriage with a divorced wife's sister, aunt or niece, or a divorced husband's brother, uncle or nephew was prohibited so long as the divorced spouse was still alive). They accepted, however, that such a recommendation would not be realistic.    [Back]

Note 27.    Capacity to marry depends primarily on the law of a person's domicile. So a person domiciled in England could not validly marry in Scotland if the marriage would be within the prohibited degrees by English law. Nor would a person domiciled in Scotland be able to have a marriage celebrated in England if the parties were within the prohibited degrees by English law. (Cheshire and North, Private International Law 11th ed 1987, p586). So the Scots law on this subject is of no direct concern to England, just as the English law is of no direct concern to Scotland.    [Back]

Note 28.    By the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 s22(1)(d).    [Back]

Note 29.    The "appropriate registrar" is, in the case of a civil marriage, an authorised registrar and, in any other case, a district registrar. S23A(2).    [Back]

Note 30.    This is the present law. See Gall v Gall 1968 SC 332.    [Back]

Note 31.    See eg s24 of the Marriage (Scotland) Act 1977.    [Back]

Note 32.    See para 14.4 below.    [Back]

Note 33.    See Clive, Husband and Wife (2nd ed 1982) pp95-101.    [Back]

Note 34.    Ibid ppl. 10-111.    [Back]

Note 35.    See Brady v Murray 1933 SLT 534; Orlandi v Castelli 1961 SC 113; Mahmud v Mahmud 1977 SLT (Notes) 17; Akram v Akram 1979 SLT (Notes) 87. The immigration rules are now such that a sham marriage will normally be ineffective for immigration purposes. See the Statement of Changes in Immigration Rules (1989 W 388) paras 50-52 and 131.    [Back]

Note 36.    1979 SLT (Notes) 87.    [Back]

Note 37.    Ibid at p89.    [Back]

Note 38.    H v H [19541 P 258; Silver v Silver [195512 All ER 614.    [Back]

Note 39.    See eg Singh v Singh (1977) 77 DLR (3d) 154. The cases are discussed in Hahlo, Nullity of Marriage in Canada (1979) pp31-35.    [Back]

Note 40.    Cf Balshaw v Balshaw 1967 SC 63 at p82.    [Back]

Note 41.    See eg McLeod v Adams 1920 1 SLT 229.    [Back]

Note 42.    See the unreported cases of McEwan v Risi (March 25, 1964) and Scott v Risi (March 25, 1965) discussed in Clive, op cit at pp106~107.    [Back]

Note 43.    Clause 21.    [Back]

Note 44.    CB v CB (1884) 11 R 1060 at p1067; affd (1885) 12 R (HL) 36. See generally, Clive, pp111-116.    [Back]

Note 45.    F v F 1945 SC 202.    [Back]

Note 46.    For a historical and highly critical account of the concept of the voidable marriage in Scots law, see Norrie, "Transsexuals, the Right to Marry and Voidable Marriages in Scots Law", 1990 SLT (News) 353.    [Back]

Note 47.    See Clive, p88.    [Back]

Note 48.    See Clive, p87; Mackle v Mackle 1984 SLT 276.     [Back]

Note 49.    Matrimonial Causes Act 1973, s16.    [Back]

Note 50.    Cretney and Masson, Principles of Family Law (5th ed, 1990) pp70-73. The concept of the voidable marriage no longer appears in     [Back]

Australian law. Family Law Act 1975, s51.

Note 51.    See M v W or M 1966 SLT 152.    [Back]

Note 52.    L v L 1931 SC 477; AB v CB 1961 SC 347.    [Back]

Note 53.    In our report on Reform of the Ground for Divorce (Scot Law Com No 116, 1989) we have recommended a shortening of the separation periods to 1 year (with the consent of the other party to divorce) or 2 years (even in the absence of such consent).    [Back]

Note 54.    Cf J v J 1978 SLT 128.    [Back]

Note 55.    This might in certain circumstances justify divorce on the ground that since the date of the marriage, the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender".    [Back]

Divorce (Scotland) Act 1976, sl(2)(b). 56 . Impotency has been a ground of nullity since before the Reformation. The existing law derives from 16th century canon law, which did not recognise divorce.

Note 57.    Under the present law the period would be 2 years if the other spouse consented to divorce or 5 years if he or she did not. Divorce     [Back]

(Scotland) Act 1976 sl(l)(d) and (e). Under the recommendation in our report on Reform of the Ground for Divorce (1989) these periods would be reduced to 1 year and 2 years respectively.

Note 58.    Comment by the Law Society of Scotland in their response to the discussion paper.    [Back]

Note 59.    See para 14.13 below.    [Back]

Note 60.    Polygamous Marriages: Capacity to Contract a Polygamous Marriage and Related Issues (Law Corn No 146; Scot Law Corn No 96, 1985) para 2.34.    [Back]

Note 61.    See Law Corn No 126; Scot Law Com No 96, paras 2.11 to 2.12, 2.16 and 2.32.    [Back]

Note 62.    See s27(3) of the 1977 A6t. The Act permitted marriage with a great-uncle, great-aunt, great-nephew or great-niece and also with a great--great grandparent or great-great-grandchild or a former spouse's great-grandparent or great-grandchild. It must be doubtful whether there have been any such marriages.    [Back]

Note 63.    S1 of the 1907 Act said that "No marriage heretofore or hereafter contracted between a man and his deceased wife's sister, within the realm or without, shall be deemed to have been or shall be void." For an example of its operation see Re Green, Green v Meinall [191112 Ch 275.    [Back]

Note 64.    Clause 21(6).    [Back]

Note 65.    Before the Age of Marriage Act 1929 a girl could marry at 12 and a boy at 14. Any marriage by a person under the age of 16 which was valid under the pre-1029 law will not be invalidated by the Bill. See clause 21(4) and (7).    [Back]

Footnotes for Part VII

Note 1.    See the Marriage (Scotland) Act 1977.    [Back]

Note 2.    Campbell v Campbell (1866) 4 M 867 at p925; Nicol v Bell 1954 SLT 314 at p326. For a discussion of the origin and nature of cohabitation with habit and repute in Scots law see Clive, Husband and Wife (2nd edn 1981) pp59-76. The most recent reported example of this type of marriage is Donnelly v Donnelly's Exr 1992 SLT 13.    [Back]

Note 3.    The average since 1961 has been between 3 and 4 a year. Annual Reports of Registrar General for Scotland.    [Back]

Note 4.    Another consequence of the existence of the marriage, independently of a declarator, is that either *spouse can raise an action for damages for the death of the other without first obtaining a declarator of marriage. See Forbes v House of Clydesdale Ltd 1987 SCLR 136.    [Back]

Note 5.    Wallace v Fife Coal Co 1909 SC 682 at p686. See also Low v Gorman 1970 SLT 356.    [Back]

Note 6.    Shaw v Henderson 1982 SLT 211.    [Back]

Note 7.    Ibid. See also Donnelly v Donnelly's Exr 1992 SLT 13.    [Back]

Note 8.    Cunningham v Cunningham (1814) 2 Dow 482 at p514. C Petrie v Petrie 1911 SC 360.    [Back]

Note 9.    Cf Bairner v Fels 1931 SC 674.    [Back]

Note 10.    In Nicol v Bell 1954 SLT 314 the man was not believed.    [Back]

Note 11.    Cf Lapsley v Grierson (1845) 8 D 34; 1 11LC 498.    [Back]

Note 12.    See Wallace v Fife Coal Co 1909 SC 682 at p686.    [Back]

Note 13.    See eg Shaw v Henderson 1982 SLT 211 and the unreported case of Doran v Lord Advocate, Feb 13, 1975 referred to in Clive, Husband and Wife (2nd edn 1981) at p66, footnote 32.    [Back]

Note 14.    Cf Low v Gorman 1970 SLT 356.    [Back]

Note 15.    The cases are reviewed in Clive, op cit pp67-74.    [Back]

Note 16.    See "Cohabitation in Great Britain-characteristics and estimated numbers of cohabiting partners" Population Trends (OPCS) Winter 1989) pp23-31. It is estimated that in 1986-87 9.4% of people in Scotland, who were single, separated or divorced, were cohabiting with a person of the opposite sex (p28). The interviewers for the General Household Survey have found that people are quite prepared to describe themselves as living together, without claiming to be married. Ibid p23. See also the report of the 1986 General Household Survey p23. There is clearly much less stigma attaching to cohabitation than formerly.    [Back]

Note 17.    See Wallace v Fife Coal Co 909 SC 682 at p686. Judges have, however, sometimes overcome this difficulty. See eg the cases of Shaw v Henderson and Doran v Lord Advocate referred to above. The rather odd result of holding a couple married by cohabitation with habit and repute even although they intended to have a regular ceremony is that, logically, they could not have had a valid regular marriage. They would already have been married and people who are married already cannot get married again, without an intervening divorce.    [Back]

Note 18.    See Part XVI below.    [Back]

Note 19.    Law Reform (Parent and Child) (Scotland) Act 1986, sl. See also paras 2.36 to 2.52, above and paras 17.1 to 17.15 below.    [Back]

Note 20.    See eg Barclay ~v Barclay (1849) 22 Scot Jur 127.    [Back]

Note 21.    Marriage (Scotland) Act 1977, s23A (added by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, s22(1)(d)). See also para 8.14 below.    [Back]

Note 22.    Family Law (Scotland) Act 1985, s17.    [Back]

Note 23.    See paras 16.24 to 16.37 below.    [Back]

Note 24.    Irregular marriages by express declarations of present consent were abolished by s5 of the Marriage (Scotland) Act 1939.    [Back]

Note 25.    Irregular marriages by promise subsequente copula were also abolished by s5 of the Marriage (Scotland) Act 1939.    [Back]

Note 26.    Sellar, "Marriage by Cohabitation with Habit and Repute: Review and Requiem" (to be published in 1992 in a volume of essays in memory of Professor Sir Thomas Smith). Mr Sellar has kindly made this essay available to us in advance of publication. In it he concludes that "The true position under Scots common law then appears to be that declarator of marriage will be granted if there exist facts and circumstances from which consent to marriage can lawfully be inferred; such facts and circumstances will usually, but need not necessarily, include cohabitation with habit and repute.".    [Back]

Footnotes for Part II

Note 1.    See eg McShane v Paton 1922 JC 26; Gray v Hawthorn 1964 JC 69. The teacher's common law right has now been severely restricted by s48A of the Education (Scotland) Act 1980 (inserted by s48 of the Education (No 2) Act 1986).    [Back]

Note 2.    See eg Guest v Annan 1988 SCCR 275; B v Harris 1990 SLT 208; Peebles v MacPhail 1990 SLT 245; Coyle v Lowe 1990 GWD 33-1887; Byrd v Wither 1991 SLT 206. In a case reported in The Scotsman and Glasgow Herald on 27 November 1991 a 55-year-old father who had whipped and caned his son and two daughters from the age of 7 onwards was jailed for four years by Lord Morton of Shuna at the High Court in Dunfermline. Lord Morton told the accused that his violence to the children "went far beyond anything that could have been described as reasonable."    [Back]

Note 3.    John and Elizabeth Newson, Four Year Olds in the Urban Community (1970) and Seven Year Olds in the Home Environment (1976).    [Back]

Note 4.    Sweden (1979), Finland (1984), Denmark (1986), Norway (1987), Austria (1989). See Newell, Children Are People Too (1989).    [Back]

Note 5.    Parl Debs (HQ Standing Committee B, 13 June 1989, cols 549-567.    [Back]

Note 6.    Parl Debs (HL) (1988-89) Vol 503 cols 542-548.    [Back]

Note 7.    Ibid at col 548.    [Back]

Note 8.    Parl Debs (HL) (1988-89) Vol 504 cols 345-352 and Vol 505 cols 407-410.    [Back]

Note 9.    Parl Debs (M) (1988-~9) Vol 503 cols 1443-1453.    [Back]

Note 10.    Haeuser, Assessment of Swedish Reforms: Reducing Violence Towards US Children: Transferring Positive Innovations from Sweden (1988)University of Wisconsin, Milwaukee, School of Social Welfare.     [Back]

Note 11.    Parl Debs (M) Standing Committee B, 13 June 1989, col 555.    [Back]

Note 12.    Education (No 2) Act 1986, s48.    [Back]

Note 13.    Recommendation No 85(4) (1985) para 12. The explanatory memorandum notes (at p14) that "It is the very assumption that corporal punishment of children is legitimate that opens the way to all kinds of excesses and makes the traces or symptoms of such punishment acceptable to third parties".    [Back]

Note 14.    Article 19.    [Back]

Note 15.    Particularly as some submissions were by organisations with hundreds or thousands of members. In some cases the line to be adopted by an organisation had been approved expressly at a general meeting.    [Back]

Note 16.    B v Harris 1990 SLT 208. This case can be contrasted with Peebles v MacPhail 1990 SLT 245 (slapping a 2 year old child on the face, knocking him over, held to be as remote from reasonable chastisement as could possibly be imagined) and the 1991 case noted in the footnote to para 2.67 where a father was jailed for 4 years for whipping and caning his children.    [Back]

Note 17.    Application 8811/79; Seven Individuals v Sweden, May 13, 1982.    [Back]

Note 18.    The Scottish Child and Family Alliance (SCAFA) (civil law sanction only); the Scottish Association of Family Centres; Kidscape, Campaign for Children's Safety; the Scottish Pre-School Play Association (civil law sanction only); the Humanist Society of Scotland (civil law sanction only); the Voluntary Organisations Liaison Council for Under Fives (VOLCUF); Working for Childcare; Edinburgh Association of University Women; Dundee Association of University Women (abolish or restrict); Perth Association of University Women; Scottish Women's Aid (but other changes necessary too); Hamilton Women's Aid.    [Back]

Note 19.    The National Children's Bureau: Scottish Group (but recognised that there were arguments on both sides); the Scottish Convention of Women (but recognised strength of feelings on both sides of argument); the Mother's Union in Scotland; the Business and Professional Women's Club, Inverclyde Branch (but only if "reasonable" can be defined).    [Back]

Note 20.    Glasgow Association of University Women.    [Back]

"Our group spent much time on the pros and cons .... As our group included teachers-nursery, primary, secondary and university-as well as parents and grandparents, much experience was evident, as was disagreement .... It was agreed that children can be as much harmed psychologically by sarcasm, verbal harassment, physical confinement and so on, as by physical punishment."

Note 21.    Article 37 of the United Nations Convention on the Rights of the Child also provides that "No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment."    [Back]

Note 22.    In the Tyrer case (25 April 1978) (on judicial birching in the Isle of Man) the European Court of Human Rights noted that judicial corporal punishment "was ... violence having an institutionalised character which was compounded by the aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender". In the Campbell and Cosans case (25 Feb 1982) (on the threat of corporal punishment in Scottish schools) the Court held that there had been no violation of article 3.    [Back]

Note 23.    Decision on admissibility of application 8811/79; Seven Individuals v Sweden May 13, 1982.    [Back]

Note 24.    Article 19(1).    [Back]

Note 25.    Chambers Dictionary defines -violence", in the sense with which we are here concerned, as "excessive, unrestrained, or unjustifiable force". The Shorter Oxford Dictionary refers to "the exercise of physical force so as to inflict injury on or damage to persons or property". it says that a violent action is one "characterised by the doing of harm or injury . . . characterised by the exertion of great physical force or strength ... done or performed with intense or unusual force, and with some degree of rapidity; not gentle or moderate."    [Back]

Note 26.    The obligation under art 19 to take all 44appropriate" measures may be contrasted with the obligation under art 37 to "ensure" that no child is subjected to torture, or other cruel, inhuman or degrading treatment or punishment.    [Back]

Note 27.    Recommendation No 85(4) (1985) para 12.    [Back]

Note 28.    At para 2.76.    [Back]

Note 29.    At paras 2.74 and 2.75.    [Back]

Note 30.    Johnstone and Munn, Discipline in School: A Review of 'Causes' and 'Cures' (Scottish Council for Research in Education. 1987) p39 (footnotes omitted).    [Back]

Note 31.    Discipline in Schools (R9port of the Committee of Enquiry chaired by Lord Elton, HMSO 1989) p63.    [Back]

Note 32.    Cumming, Lowe, Tulips and Wakeling, Making the Change: a study of the process of the abolition of corporal punishment (Scottish Council for Research in Education, 1981) p.3.    [Back]

33 . The Free Presbyterian Church of Scotland referred us to Proverbs 13 v. 24 ("He that spareth his rod hateth his son") and Hebrews 12 v. 6 ("For whom the Lord loveth he chasteneth, and scourgeth every son whom he receiveth"). They also referred us to a passage in Ephesians 6 vv 2-4, which seems to refer only to the desirability of a Christian upbringing and which comes immediately before a passage urging slaves to obey their masters with fear and trembling.

Note 34.    See eg the views of EPOCH, summarised at para 2.84 above.    [Back]

Note 35.    A leaflet published by the Swedish Department of Justice after the abolition of the parental right to administer corporal punishment explained that "Should physical chastisement meted out to a child cause bodily injury or pain which is more than of very temporary duration it is classified as assault and is an offence punishable under the Criminal Code" and that under the new law, as under the old, "trivial offences will remain unpunished, either because they cannot be classified as assault or because an action is not brought.    [Back]

Note 36.    S48A of the Education (Scotland) Act 1980 (inserted by s48 of the Education (No.2) Act 1986) does not apply to teachers in private schools in so far as they inflict punishment on pupils whose fees are not paid out of public. funds. It is worth emphasising again that s12(7) does not confer any defence. It simply refers to an existing common law defence which would, so far as teachers are concerned, be unaffected by our proposals. The teacher's right to administer corporal punishment, in so far as it has survived s48A of the Education (Scotland) Act 1980, is an independent right. It s not a parental right or a delegated parental right. It is, in the words of s48A, "a right exercisable by the member of the staff by virtue of his position as such".    [Back]

Note 37.    Para 2.59 above.    [Back]

Note 38.    See eg Byrd v Wither 1991 SLT 206 (cohabitant). Cf Children and Young Persons (Scotland) Act 1937, s12(7).    [Back]

Footnotes for Part I

Note 1.    S3(1).    [Back]

Note 2.    It is item 14 of our Second Programme of Law Reform.    [Back]

Note 3.    Discussion Paper No 85 (March 1990).    [Back]

Note 4.    Discussion Paper No 85 (March 1990).    [Back]

Note 5.    Discussion Paper No 86 (May 1990).    [Back]

Note 6.    Discussion Paper No 88 (October 1990).    [Back]

Note 7.    Appendix B.    [Back]

Footnotes for Part XIV

Note 1.    Private International Law: Choice of Law Rules in Marriage (Law Com Working Paper No 89; Scot Law Com Consultative Memorandum No 64), referred to in this Part as "the discussion paper" or "the 1985 discussion paper".    [Back]

Note 2.    Private International Law: Choice of Law Rules in Marriage (Law Com No 165; Scot Law Com No 105), referred to in this Part as "the 1987 report".    [Back]

Note 3.    Report, paras 2.13 and 2.14.    [Back]

Note 4.    Particularly the so-called common law exception to the rule that formal validity is governed by the law of the place of celebration and the choice of law rules on annulment for impotency or wilful refusal to consummate a marriage.    [Back]

Note 5.    See paras 14.13 to 14.19 below.    [Back]

Note 6.    Para 2.12.    [Back]

Note 7.    See Anton, Private International Law, (2nd ed 1990) pp421-428; Clive, Husband and Wife (2nd ed 198.2 pp145-148 (cited in the rest of this report as "Anton" and "Clive" respectively).    [Back]

Note 8.    Cf Starkowski v Att-Gen [19541 AC 155.     [Back]

Note 9.    Para 14.6 below.    [Back]

Note 10.    Para 9.5.    [Back]

Note 11.    This is certainly.required in relation to nonage and prohibited degrees of relationship in the case of marriages celebrated in Scotland. Marriage (Scotland) Act 1977 ssl and 2. See also Lendrum v Chakravarti 1929 SLT 96 at p103.    [Back]

Note 12.    This is the view favoured by both Law Commissions in the 1987 Report. See para 2.6.    [Back]

Note 13.    See Anton, pp428-438; Dicey and Morris, The Conflict of Laws (l lth ed 1987) p638; Cheshire and North, Private International Law (l lth ed 1987) pp586 and 587 (cited in the rest of this report as "Dicey and Morris" and "Cheshire and North" respectively).    [Back]

Note 14.    See Clive, pp156-157; Anton pp439-441 ("one can only speculate what the Scottish choice of law rule will be    [Back]

Note 15.    Cf the Marriage (Scotland) Act 1977, s3(5).    [Back]

Note 16.    We have recommended a rule of this nature for Scots law at para 8.20 above. Clearly if Scots law were the law governing the question of duress this rule would apply as part of Scots law.    [Back]

Note 17.    Report on Polygamous Marriages (Law Com No 146; Scot Law Corn No 96, 1985) para 2.34.    [Back]

Note 18.    Clauses 20 and 21.    [Back]

Note 19.    Marriage (Scotland) Act 1977 ss1(2) and 2(1).    [Back]

Note 20.    See Part VIII above. We are referring to Scottish internal law here.    [Back]

Note 21.    Para 9.6. In the 1987 report both Commissions favoured the idea that parties marrying in the United Kingdom should require to have capacity by the law of the relevant part of the United Kingdom. Para 2.6.    [Back]

Note 22.    The draft Bill achieves this result by listing exhaustively the grounds of nullity for marriage entered into in Scotland and by not including tacit reservations.    [Back]

Note 23.    Bliersbach v MacEwan 1959 SC 43. The position is the same in English law. See Simonin v Mallac (1860) 2 Sw & Tr 67; 164 ER 917; Ogden v Ogden [19081 P 46.    [Back]

Note 24.    See eg Falconbridge, Essays on the Conflict of Laws (2nd ed 1954) pp74-86; Anton, pp69, 420, 433-434; Cheshire and North, pp50 and 51.     [Back]

Note 25.    Marriage (Scotland) Act 1977 sl(l).    [Back]

Note 26.    Paras 4.8 to 4. 10.    [Back]

Note 27.    Para 9.9.    [Back]

Note 28.    One consultee pointed out that the foreign law might provide for the retrospective validation of a marriage which was initially invalid because of lack of parental consent. This is a separate question which we have dealt with in para 14.5 above. A rule of the applicable foreign law providing, in effect, that an incapacity due to lack of parental consent would be retrospectively ignored in certain cases would simply have effect as part of that applicable law.    [Back]

Note 29.    Marriage Act 1949, 0. The requirement applies only to marriages by common licence or on the authority of a superintendent registrar's certificate. It would probably be characterised in English law as relating to form. See Dicey and Morris, p604. The English Law Commission has recommended its abolition. Report on Guardianship and Custody (Law Com No 172, 1988) para 7.11.    [Back]

Note 30.    Thus the same result would be reached on the facts of Simonin v Mallac (1860) 2 Sw & Tr 67; 164 ER 917.    [Back]

Note 31.    See eg art 148) of the French Civil Code which provides that minors cannot contract marriage without the consent of their parents, or one of them.    [Back]

Note 32.    1959 SC 43.    [Back]

Note 33.    See the Report of the Committee on the Marriage Law of Scotland (1969) Cmnd 4011.     [Back]

Note 34.    [19081 P 46.    [Back]

Note 35.    See also Marriage (Scotland) Act 1977 s3(5).     [Back]

Note 36.    Cf MacDougall v Chitnavis 1937 SC 390.    [Back]

Note 37.    Cf Sottomayor v De Barros (No 2) (1879) 5 P1) 94 at p104.     [Back]

Note 38.    Para 3.49.    [Back]

Note 39.    It should be noted that a marriage may be initially invalid under an applicable law notwithstanding that in that law there are restrictions on title to sue for a declarator of nullity.    [Back]

Note 40.    Para 9.13. In the discussion paper we said "any ground other than incurable impotency". As we have recommended that impotency should cease to be a ground on which a marriage is voidable in Scots law that qualification can now be dropped.    [Back]

Note 41.    See paras 8.29 and 8.30 above.    [Back]

Note 42.    Family Law Act 1986, s46.    [Back]

Note 43.    The one consultee who disagreed with our suggestion on this point was concerned, among other things, that there should be a choice of law rule on incapacity for marriage because of impotency. However, there would be such a rule. Capacity for marriage depends on the law of the person's ante-nuptial domicile. If that law says that a person, if impotent, lacks the legal capacity for marriage then the marriage will be void. The trouble is that some legal systems say that impotency does not result in a legal incapacity for marriage but yet say that it is a ground for dissolving a valid marriage later. Our view is simply that the grounds available in the Scottish courts for dissolving a valid marriage should depend on Scots law.    [Back]

Note 44.    Matrimonial Causes Act 1973, s13. For example, proceedings must be begun within 3 years of the date of the marriage. S13(2).     [Back]

Note 45.    Matrimonial Causes Act 1973, s16.    [Back]

Note 46.    Sottomayor v De Barros (No 2) (1879) 5 P1) 94.    [Back]

Note 47.    See eg Dicey and Morris, p624; Cheshire and North, p585.    [Back]

Note 48.    MacDougall v ChitnaWs 1937 SC 390 at pp403 and 407.    [Back]

Note 49.    Cf ss3(5) and 5(4).    [Back]

Note 50.    Para 3.48.    [Back]

Note 51.    The exception is fully discussed in the 1985 discussion paper at paras 2.14, 2.20 to 2.30 and 2.54 to 2.68.    [Back]

Note 52.    See Fraser, Husband and Wife, Vol 11 pp1313 and 1314, and Barclay v Barclay (1849) 22 Scot Jur 127 per Lord Ivory at p131. Modern textbook writers are, not surprisingly, non-committal on this point. See Anton, p428; Clive, pp147 and 148.    [Back]

Note 53.    Paras 2.54 to 2.68.    [Back]

Note 54.    Barclay v Barclay (1849) 22 Scot Jur 127. This case concerned the validity of a marriage between Protestants in a Catholic country in 1780. The parties had always been regarded as validly married during their lives and there was a very strong presumption in favour of their having been validly married, either by the ceremony in question (about which there was a division of legal opinion) or by some other ceremony. This presumption was not rebutted by the evidence led.    [Back]

Note 55.    Foreign Marriage Act 1892 as amended.    [Back]

Note 56.    S20. "Ceremony" is not defined.    [Back]

Note 57.    Para 14.5 above.    [Back]

Note 58.    Cf Prawdzic-Lazarski v Prawdzic-Lazarska 1954 SC 98 where, however, the content of the foreign law was not proved and the case was disposed of by applying Scots law.    [Back]

Note 59.    See Jack v Jack (1,862) 24 D 467 at p475; Anton, pp465-467.    [Back]

Note 60.    Report on Jurisdiction in Consistorial Causes Affecting Matrimonial Status (Scot Law Com No 25, 1972) at pp10-13. The English Law Commission came to the same conclusion: Report on Jurisdiction in Matrimonial Causes (Law Com No 48, 1972) at pp38-39.    [Back]

Footnotes for Part XV

Note 1.    See Anton, pp275-279.    [Back]

Note 2.    See Part XVIII.    [Back]

Note 3.    There is an extensive international literature on this subject which seems to give rise to more difficulty in practice in countries with community property regimes. See eg Regimes Matrimoniaux, Successions et Liberaliffis: Droit Intemational priv6 et Droit compar6 (Verwilghen ed 1979). There is a Hague Convention on the Law Applicable to Matrimonial Property Regimes which was concluded on March 14, 1978 but which, as at March 22, 1989, had been ratified by only France and Luxembourg. It makes the governing law, in the absence of express agreement and subject to some important and quite complex qualifications, the law of the State in which both spouses establish their first habitual residence after marriage. (Art 4).    [Back]

Note 4.    See Anton, pp584-589; Dicey and Morris, pp1066-1067; Cheshire and North, p864; Clive, p335.    [Back]

Note 5.    Anton, pp576-584; Dicey and Morris, pp1053-1058; Cheshire and North, pp869-872; Clive, pp335, 337.    [Back]

Note 6.    Dicey and Morris, p1068; Cheshire and North, p868; Clive, p336.    [Back]

Note 7.    See eg Dicey and Morris, p 1066; Cheshire and North, p864. The Married Women's Property (Scotland) Act 1881 used to contain a reference to the husband's domicile in sl but this has now been repealed.    [Back]

Note 8.    See Anton, p584.    [Back]

Note 9.    Cf Anton, p586. (Where, in relation to moveable, no immutable regime has been established by express contract or operation of law, the 1ogic of the present law suggests that the proprietary relationships of the spouses must simply be assimilated to those of unmarried persons".)    [Back]

Note 10.    Welch v Tennant (1891) 18 R (HL) 72.    [Back]

Footnotes for Part XVI

Note 1.    Discussion Paper No 86, (May 1990) referred to in this part of the report as "the discussion paper".    [Back]

Note 2.    By "cohabitation" in this context we mean the relationship of a man and a woman who are not legally married to each other but are living together as husband and wife, whether or not they pretend to others that they are married to each other.    [Back]

Note 3.    See "Cohabitation in Great Britain--characteristics and estimated numbers of cohabiting partners". Population Trends (OPCS) Winter 1989. 4. See paras 1.3 and 1.4 above.    [Back]

Note 5.    Opting out is discussed more fully at para 16.47 below. We say it should be possible "in general" because we do not think that it should be possible to opt out of protection against domestic violence.    [Back]

Note 6.    See Sch 1 para (aa) (added by the Administration of Justice Act 1982, s14(4)). 7. S18.    [Back]

Note 8.    See eg the Social Security Act 1986, s20(11); the Rent (Scotland) Act 1984, 0 and Sch 1; the Housing (Scotland) Act 1988, s31(4); the Mental Health (Scotland) Act 1984, s53(5) (definition of "nearest relative").. Cohabitation has also been recognised in the criminal law on provocation. See McDermott v H M Adv 1973 JC 8; McKay v H M Adv 1991 SCCR 364.    [Back]

Note 9.    Family Law (Scotland) Act 1985, sl.    [Back]

Note 10.    Child Support Act 1991, s11 and Sch 1.    [Back]

Note 11.    Family Law (Scotland) Act 1985, s25(1).    [Back]

Note 12.    S25(2).    [Back]

Note 13.    S25(3).    [Back]

Note 14.    Para 3.6.    [Back]

Note 15.    68% of respondents thought that, where a couple had been cohabiting for five years, household furniture and equipment should belong to them in equal shares.    [Back]

Note 16.    Married Women's Property Act 1964, sl.     [Back]

Note 17.    1950 SC 253.     [Back]

Note 18.    Para 4.2.    [Back]

Note 19.    Family Law (Scotland) Act 1985, s9.    [Back]

Note 20.    1985 Act, s10(4). There is special provision for property acquired before the marriage for use by the parties as their family home or as furniture or plenishings for it.    [Back]

Note 21.    1985 Act, s10(1).    [Back]

Note 22.    Discussion Paper, para 5. 11.    [Back]

Note 23.    See paras 16.16 to 16.23 below.    [Back]

Note 24.    Para 5.16. The principle would have corresponded to section 9(1)(c) of the Family Law (Scotland) Act 1985 which is that "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". This is in addition to aliment for the child.    [Back]

Note 25.    Child Support Act 1991, s11 and Sch 1.    [Back]

Note 26.    Para 5.15.    [Back]

Note 27.    A claim by a cohabitant based on recompense was, however, successful in Scanlon v Scanlon 1990 GWD 12-598.    [Back]

Note 28.    There is no claim for recompense based on unjustified enrichment if the enrichment arose from a donation. See eg Wilson v Paterson (1826) 4 S 817; Drummond v Swayne (1834) 12 S 342; Turnbull v Brien 1908 $C 313 at p315.    [Back]

Note 29.    See eg Rankin v Wither (1886) 13 R 903.    [Back]

Note 30.    The courts in England (see eg Cooke v Head [197211 WLR 518, applying dicta in Gissing v Gissing [19711 AC 886), Canada (see eg Pettkus v Becker (1980) 117 DLR (3d) 257), Australia (see eg Baumgartner v Baumgartner (1987) 76 ALR 75) and New Zealand (see eg Oliver v Bradley [198711 NZLR 586) have used the idea of the constructive trust to provide a remedy for cohabitants in certain situations.    [Back]

Note 31.    This has been the experience in a number of Commonwealth jurisdictions. See paras 5.2 to 5.4 of the discussion paper and Gillies v Keogh [19891 2 NZLR 327. See also the Queensland Law Reform Commission's discussion paper on Shared Property: Resolving property disputes between people who live together and share property (Discussion paper No 36, Oct 1991) ppl-4.    [Back]

Note 32.    1985 Act, s9(2).    [Back]

Note 33.    See eg Kokosinski v Kokosinski [19801 Fam 72 (where a cohabitation which lasted for 24 years was followed by a marriage and then by a separation a few months later).    [Back]

Note 34.    We recognised this anomaly in our report on Aliment and Financial Provision, Scot Law Com No 67, (1981) para 3.98 but concluded that the remedy for it might be to deal with the legal effects of cohabitation, something with which we were not concerned in that report.    [Back]

Note 35.    We consider the legality of such arrangements in para 16.46 below.    [Back]

Note 36.    This is the period most commonly allowed in recent Canadian statutes on claims by cohabitants after the end of the cohabitation. See the Alberta Institute of Law Research and Reform Towards Reform of the Law Relating to Cohabitation Outside Marriage (1987) pp59-60.    [Back]

Note 37.    The expression used for the fixed share of spouse or issue, even against the terms of the deceased's will, in our report on Succession (Scot Law Com No 124, 1990).    [Back]

38 . Paras 6.29 and 6.30.

Note 39.    Manners and Rauta, Family Property in Scotland (OPCS, 1981) p21 and table 4.8.     [Back]

Note 40.    Scot Law Corn No 124 (1990), paras 3.3 to 3.14.    [Back]

Note 41.    Ibid para 3.14.    [Back]

Note 42.    Intestate Succession and Legal Rights (Consultative Memorandum No 69, 1986) para 4.86.     [Back]

Note 43.    See our report on Succession (Scot Law Corn No 124, 1990) para 3.6.    [Back]

Note 44.    See the consultative memorandum and report referred to in the last two footnotes.    [Back]

Note 45.    It is particularly interesting, in this connection, to note the extension of the provisions for cohabitants recommended by the English Law Commission in its report on Distribution on Intestacy (Law Com No 187) 1989. Under the existing law a surviving cohabitant must show that he or she was dependent on the deceased. The Commission has recommended (para 59) that this should no longer be required. It has also recommended (para 60) that the factors to be taken into account in assessing a cohabitant's claim should be the same as in the case of a spouse.    [Back]

Note 46.    Inheritance (Provisions for Family and Dependants) Act 1975, s2(1).    [Back]

Note 47.    We reached the same conclusion in relation to legal shares in our report on Succession (Scot Law Com No 124, 1990) paras 3.49 to 3.54.    [Back]

Note 48.    S8(5) (appointment of arbiter re prior rights).    [Back]

Note 49.    Clause 12 (validation of certain documents); clause 13 (rectification of wills). See Scot Law Com No 124 (1990) p156.    [Back]

Note 50.    Sch 1, para 1(aa).    [Back]

Note 51.    See the Social Security Benefit (Persons Residing Together) Regulations (SI 1977 No 956) where a similar test is used in relation to spouses.     [Back]

Note 52.    The ground recommended by the Law Commission for England and Wales is very similar to this but includes after "receive" the words "for his maintenance". See Law Com No 187, Distribution on Intestacy (1989) para 60. We do not think that the ground should be so closely tied to maintenance. There may be cases where the applicant has no need of any provision for his or her maintenance (having, for example, a good salary or a good pension) but where he or she has a good claim based on contributions or on the absence of any other person who was close to the deceased.    [Back]

Note 53.    This would include any claim to inheritance tax.    [Back]

Note 54.    There is a similar protection in the English legislation. Inheritance (Provision for Family and Dependants) Act 1975, s20.    [Back]

Note 55.    "Net estate" is used here in the same sense as in our report on Succession (Scot Law Com No 124, 1990). It means the whole estate belonging to the deceased at the date of his death less debts and funeral expenses.    [Back]

Note 56.    This is the same solution as we have recommended for legal shares in our report on Succession (Scot Law Com No 124, 1990) para 9.21. It produces the same effect as s146(1) of the Inheritance Tax Act 1984 which deals with claims under the (English) Inheritance (Provision for Family and Dependants) Act 1975.    [Back]

Note 57.    1981 Act, s18(1) as amended.    [Back]

Note 58.    Para 7.8.    [Back]

Note 59.    Discussion Paper No 85 (1990) paras 6.13 to 6.29.    [Back]

Note 60.    Matrimonial Homes (Family Protection) (Scotland) Act 1981, s18(3).    [Back]

Note 61.    Para 7. 10.    [Back]

Note 62.    Life Assurance Act 1774, sl. This provides that no insurance shall be made ... on the life ... of any person ... wherein the person or persons for whose use benefit, or on whose account such policy or policies shall be made, shall have no interest, or by way of gaming or wagering; and every assurance made contrary to the true intent and meaning hereof shall be null and void . . .".    [Back]

Note 63.    MacGillivray & Parkington on Insurance Law (8th edn, 1988) paras 67 and 68. The insurable interest of a person in the life of his or her spouse was not doubted in Champion v Duncan (1867) 6 M 17; Wight v Brown (1849) 11 D 459. See also Griffiths v Fleming [190911 KB 805 at pp820-823.    [Back]

Note 64.    See Griffiths v Flemitig, above, at pp821-822.    [Back]

Note 65.    The amendments were made by the Married Women's Policies of Assurance (Scotland) (Amendment) Act 1980 which implemented this Commission's Report on The Married Women's Policies of Assurance (Scotland) Act 1880 (Scot Law Com No 52, 1978). Before the amendments s2 applied only, to a policy effected by a "married man".    [Back]

Note 66.    The section also applies to policies for a person's children, including children whose parents are not married to each other. See s2. So it can already be used by either cohabitant to take out a policy for his or her children.    [Back]

Note 67.    S2.    [Back]

Note 68.    Thus giving him or her a jus quaesitum tertio. See Carmichael v Carmichael's Exrx 1920 SC (HL) 195.    [Back]

Note 69.    See Jarvie's Tr v Jarvie's Trs(1887) 14 R 411; Carmichael v Carmichael's E= 1920 SC (HL) 195.    [Back]

Note 70.    S2 provides that "if it shall be proved that the policy was effected and premiums thereon paid with intent to defraud creditors, or if the person upon whose life the policy is effected shall be made bankrupt within two years from the date of such policy, it shall be competent to the creditors to claim repayment of the premiums so paid from the trustee of the policy out of the proceeds thereof.". This provision is expressly preserved by s34 of the Bankruptcy (Scotland) Act 1985 (gratuitous alienations).    [Back]

Note 71.    The repealing provision is in Sch 2 of the draft Bill. For the full capacity and property rights of married women, see now the Family Law (Scotland) Act 1985, s24. See also clause 24 of the Draft Bill.    [Back]

Note 72.    This question has been the subject of fairly extensive discussion in England. See eg Barton, Cohabitation Contracts (1985) pp37-49; Parry, The Law Relating to Cohabitation (2d ed 1988) paras 9.06 to 9. 10; Poulter, "Cohabitation Contracts and Public Policy" (1974) 124 New Law Journal pp999 and 1034; Bottomley, Gieve, Moon & Weir, The Cohabitation Handbook (1981) ppl.90-192.    [Back]

Note 73.    (2nd edn, 1929) p562 (footnotes omitted). See also Walker, Contracts (2d edn 1985) para 11.34.    [Back]

74 . Matrimonial Homes (Family Protection) (Scotland) Act 1981, s18.

Note 75.    Housing (Scotland) Act 1988, s31(4).    [Back]

Note 76.    Damages (Scotland) Act 1976, ssi and 10(2) and Sch 1, para (aa) (added by the Administration of Justice Act 1982, s14(4)).    [Back]

Note 77.    A number of courts in the United States of America have rejected the view that cohabitation contracts are unenforceable. See Weitzman, The Marriage Contract (1981) pp392-401. The best known American case is Marvin v Marvin 18 Cal 3d 660 (1976). Some of our consultees, including the Faculty of Advocates, considered that a court would not now strike down a typical cohabitation contract as immoral.    [Back]

Note 78.    R (88) 3.    [Back]

Note 79.    Para 9. 1.    [Back]

Note 80.    See draft Bill,, clause 34.    [Back]

Note 81.    See draft Bill, clause 35.    [Back]

Note 82.    Including a claim for financial provision on divorce and a claim for legal rights on death.    [Back]

Footnotes for Part XVII

Note 1.    Scot Law Corn No 82 (1984).    [Back]

Note 2.    S1(1).    [Back]

Note 3.    S1(2) and (3).    [Back]

Note 4.    S2(1) (b).    [Back]

Note 5.    S3.    [Back]

Note 6.    See paras 2.36 to 2.51 above.    [Back]

Note 7.    S7.    [Back]

Note 8.    Scot Law Corn No 82 (1984) para 9.2. A similar recommendation was made by the English Law Commission in its report on Illegitimacy (Law Corn No 118, 1982) para 4.51.    [Back]

Note 9.    Scot Law Corn No 82 (1984) para 9. 1.    [Back]

Note 10.    Ibid para 9.3.    [Back]

Note 11.    See Draft Bill, clause 44.    [Back]

Note 12.    See Draft Bill, clause 47(2). Nothing in the Act (including the repeal of the 1968 Act) affects the succession to hereditary titles, honours or dignities.    [Back]

Note 13.    Eg lawful heir, lawful issue.     [Back]

Note 14.    See Draft Bill, clause 44(2).     [Back]

Note 15.    See Draft Bill, clause 44(2).    [Back]

Note 16.    See Draft Bill, Sch 1.    [Back]

Note 17.    See Anton, pp130-136.    [Back]

Note 18.    Domicile and Matrimonial Proceedings Act 1973, A.    [Back]

Note 19.    Report on the Law of Domicile (Scot Law Com No 107; Law Com No 168, 1987).    [Back]

Note 20.    For the existing law see Anton, pp484-495. The Legitimation (Scotland) Act 1968 uses the domicile of a person's father at the date of the marriage as the main connecting factor in relation to legitimation by subsequent marriage. See sl(l) and s4.    [Back]

Note 21.    See. para 17.13 above and the joint report on the Law of Domicile (Scot Law Com No 107; Law Com No 168, 1987).    [Back]

Footnotes for Part XVIII

Note 1.    Civil Jurisdiction and Judgments Act 1982, s20 and Sch 8, rules 1 and 2(5); Maintenance Orders Act 1950; Maintenance Orders (Reciprocal Enforcement) Act 1972.    [Back]

Note 2.    Cf Allsop v Allsop (1830) 8 S 1032; Thomson v Thomson (1838) 11 Sc Jur 165; Finlay v Finlay (1885) 23 SLR 583; Pearce v Pearce (1898) 5 SLT 338; Foxwell v Robertson (1900) 2 F 932; Fraser v Campbell 1927 SC 589; Silver v Walker 1938 SC 595; Allum v Allum 1965 SLT (Sh Ct) 26.    [Back]

Note 3.    Macdonald v Macdonald (1846) 8 D 830. The pursuer's children were also defenders. Two of the judges were for dismissing the action against them on the ground that they had no means: two were for finding out whether there was any liability by English law, the law of their domicile.     [Back]

Note 4.    Ross v Sinhjee (1891) 19 R 31.    [Back]

Note 5.    Ibid per the Lord Justice-Clerk at p37.    [Back]

Note 6.    Lord Young at p37 and./Lord Trayner at p38.    [Back]

Note 7.    1939 SLT 286 at pp288-289.    [Back]

Note 8.    L von Bar, Private International Law, translated by G R Gillespie, 2nd edn (Edinburgh, 1892) p380.    [Back]

Note 9.    It replaced an earlier convention of 1956 which was also not signed by, the United Kingdom.    [Back]

Note 10.    Under the Civil Jurisdiction and Judgments Act 1982, Sch 8 rule 5(2) the Scottish courts have jurisdiction in "matters relating to maintenance" on the basis of the maintenance creditor's domicile or habitual residence, as well as on the general ground of the defender's domicile available under rule 1.    [Back]

Note 11.    See Discussion Paper No 85, paras 12.6 to 12.10.    [Back]

Footnotes for Part XIX

Note 1.    Review of Child Care Law in Scotland (HMSO).    [Back]

Note 2.    Something similar happened in England and Wales where separate projects by the English Law Commission and the relevant government department were eventually brought together in the Children Act 1989.    [Back]

Note 3.    This is the very useful Parliamentary procedure whereby a number of separate statutes dealing with one subject matter can be consolidated into a single Act, without the consolidating Bill having to go through all the Parliamentary stages which an ordinary Bill has to go through.    [Back]


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