Scottish Churches Parliamentary Office, Edinburgh - Briefing Document Three

Email SCPO

Parliamentary Officer:Rev Graham Blount
Phone:
0131 558 8137

Briefing Document No 3 - Page 3 of 5

Improving Scottish Family Law - Continued.

Mediation
While recognising the difficulties of any element of compulsion re mediation, the document considers how best funding support could be given to agencies (churches are not mentioned) providing mediation or family support (Q3). Would churches want to be involved in this?

Family Law
Section 4 of the document deals with a range of detailed points made by the Scottish Law Commission, mainly aimed at securing greater fairness between couples.

In particular, there are questions as to whether legal difficulties faced by cohabiting couples should be removed (ie that cohabitees be treated the same as married couples). Broadly, the SLC claims support in public opinion for some changes, but the document accepts that "such reform should not undermine marriage nor undermine the freedom of those who have deliberately opted out of marriage" (4.3.1).

Questions are also raised about the possible abolition of
(a) the old Scots form of marriage by "cohabitation by habit and repute" (an early means for the courts to "regularise" irregular marriages which were so in all but legal ceremony - s4.4)
(b) of judicial separation (felt to be of doubtful use when divorce is as easily obtainable and those who do not wish divorce can obtain financial and property settlements without judicial separation -s4.5), and
(c) of the status of illegitimacy (most of the practical effects of which have already been removed - s4.7).

Section 4.6 has detailed proposals for the choice of law rules (in relation to questions of validity of marriages and divorces), which may be of particular significance to members of ethnic minorities.

Parental Responsibilities and Rights:

(A) Unmarried Fathers
"The present position is that unmarried fathers do not automatically have parental responsibilities and rights" (5.1.1), and there is a good case for seeking to involve fathers in the care of their children, as the law moves more towards the responsibilities parents have towards their children. Although the proportion of births in which the parents are not married to each other is increasing fast (from 21% in 1986 to 30% in 1992 to 38% in 1997), the proportion registered to the mother alone remains constant at 7%.

Should the law cease to distinguish between fathers who are married to the mother and those who are not, in terms of rights or responsibilities? The document assumes a consensus in this direction, based mainly on the interests of the child in having both parents involved. At present, fathers can acquire parental rights and responsibilities by marriage to the mother, the can be granted by a court, or the mother can agree to give them to the father by a Parental Responsibilities and Parental Rights Agreement (a new and largely untried procedure).

There is some concern that legal provision for the parental responsibilities of registered unmarried fathers might make them reluctant to acknowledge paternity on birth certificates (which would defeat the purpose of change). Equally, some mothers might become reluctant to confer rights on the father by joint registration. One alternative suggested would be to give all biological fathers automatic parental rights and responsibilities, although there could be difficulties in establishing paternity if the Register is not the basis.