Scottish Churches Parliamentary Office - Domestic Abuse Briefing

Family Matters

In their consultation on family law reform, the Executive seek to build consensus in a controversial area by focussing on the needs of children: "children’s best interests must be the cornerstone of family law reform in Scotland and we have a responsibility to put their needs first". This consensus was evident in the Parliamentary debate on 16 June; so too were differing views as to the place of marriage and the impact of these changes on both the status and the realities of marriage. "Marriage is the basic institution on which family law is based … but the legal protection available to other family forms is limited … in short, the law has fallen behind the way adults, very often with children, form and maintain relationships" (says the consultation paper). The proposals therefore are based on three principles, that:

· the best interests of children should be safeguarded,

· stability in families should be promoted and supported, and

· the law should be updated to reflect the reality of families in Scotland today.

Several proposals have been the subject of previous consultation (in 1999), and on some of these "firm proposals" are now offered, with little scope for significant change at this stage. There are also some matters on which "a settled view has not yet been reached", where this consultation is more open; further issues (re adoption and fostering) await a further report promised for later this year.

1. Firm Proposals for a Family Law Bill

(a) Parental Rights and Responsibilities for Unmarried Fathers

At present, if parents are not married, only mothers secure parental rights and responsibilities (eg the right to take key decisions such as where a child shall live, attend school, what medical treatment she/he receives etc), even if the father is named on the birth certificate. It is proposed in future these rights will be given to both unmarried parents if a child’s birth is jointly registered.

(b) Reducing Minimum Periods for Divorce

"To reduce unnecessary conflict and to allow everyone, including children, to move on", it is proposed that the time of separation where both parties consent to a divorce be reduced from 2 years to 1 year, and from 5 years to 2 years where one party does not consent to divorce.

(c) Matrimonial Interdicts and Exclusion Orders

Proposals here will extend the protection given to abused partners to include divorced partners and present and former cohabitants, and to cover the applicant's home, workplace and child(ren)’s school.

2. Open-ended Proposals for Consultation

(a) Legal Protection for Cohabitants

Although some recent legislation has recognised cohabiting couples (eg in relation to tenancies), there is no coherent legal framework of rights for them. Particularly in light of the growing number of such situations where children are involved (over 200,000 unmarried couples with children were recorded in the 2001 census), and confusion about "common law marriage", the Executive see a need to protect vulnerable partners. However, this could range from simply publicising accurate information and encouraging couples to draw up agreements between themselves, to a full legal framework similar to the rights of married couples. Favouring neither extreme, the Executive ask seven specific questions:

(i) Do you agree that cohabiting couples should have some legal protection?

(ii) Do you consider that the objective is to create legal safeguards rather than a comprehensive package of rights and responsibilities like marriage?

(iii)Do you agree that there should be a presumption of equal shares to household goods and money/property from housekeeping acquired during the period of cohabitation?

(iv)Do you agree that a former cohabitant should have the right to apply to the court for financial provision where they have suffered undue financial hardship on the termination of their cohabitation agreement?

(v) Do you agree that on the death of one party to a cohabiting partnership, the surviving cohabitant should be able to apply to the court for provision out of the deceased’s estate?

(vi) Do you agree that legal safeguards should be for people who live together as a couple (as opposed to sisters/brothers living together, adult friends sharing a house etc)?

(vii) Are there any other points that you would like to make in relation to the law and cohabiting couples in Scotland?

(b) Step-Parent Parental Responsibility and Rights Agreement

Recognising that one in four marriages involve people who have previously been married, an increasing number of children (perhaps 8%) have step-parents. Currently, step-parents can apply to the courts for parental rights or adopt a step-child (adoption means that all legal ties are taken from the natural birth parent); as an alternative, it is suggested that a married step-parent might secure parental rights and responsibilities for their step-child with the agreement of both birth parents, by completing and registering a Step-Parent Parental Responsibility and Rights Agreement.

This would allow both birth parents and step-parents to have an equal say in any decisions about a child’s upbringing without going to court. Even if the child’s parent and step-parent separated, the step-parent would still retain the Step-Parent Parental Responsibility and Rights Agreement giving them a say in the child’s upbringing even though they no longer live with the child. Those rights could only be revoked by a court.

Three questions are posed on this:

(i) Do you agree that the Executive should make legislative provision for Step-Parent Parental Responsibility and Rights Agreements?

(ii) How can the views of children be factored into SPPRRAs?

(iii)As an alternative, what improvements could be introduced to step-parents going to court to secure Parental Rights and Responsibilities to make this less daunting?

(c) Contact Between Children and Wider Family

Although the Executive do not consider it appropriate that there should be a right of contact for grandparents, there has been a pressure for such an automatic right to be introduced (so that parents would have to go to court to demonstrate that it would not be in the best interests of the child, if they did not think contact was appropriate). At present, other people with an interest in a child are reliant on reaching agreements with the parents to maintain relations with that child, unless they secure an order from a court. However, the Executive are dubious about how a right of contact would be exercised and what would happen if the child moved to a new area; there is also concern that an automatic right of contact would ignore the views of the child.

Two questions are posed:

(i) Do you agree that a right of contact to a child is not appropriate for grandparents and other wider family members?

(ii) How can the Executive best promote continued contact between children and wider family where voluntary agreements prove elusive?

(d) Making the Law Work in Practice

The Executive are also concerned about how to make the law work in practice, in three areas: an information campaign, support available for families in difficulties or transition and making the experience of using the law accessible. They would like to hear views on:

(i) What issues should be covered in information on family law?

(ii) How can that information best be distributed so that people in Scotland understand their rights and responsibilities?

(iii) Do you see any further ways in which the voluntary sector contribution to securing good outcomes for families can be strengthened?

(iv) Can you suggest any further ways in which the complementary skills of counsellors and mediators can be mobilised locally to support families in transition?

(v) If applicable, what has your experience been of using the law in relation to family matters?

(vi) Do you have any ideas for possible improvements in using family law?

3. Further Technical Amendments to Family Law

There are several further amendments to Family Law envisaged, including: (a) to remove the concept of "illegitimacy" and remaining legal discriminations against people on the grounds of their parents' marital status; (b) to put into statute current common law rules on nullity; (c) to clarify the law on the validity of marriages outwith Scotland, making validity dependent on the law of the place of celebration; (d) to retain marriage by cohabitation and repute, though restricting powers of the court to back-date recognition of such marriages if that would affect validity of an otherwise valid marriage.

4. Churches' Participation in the Consultation

A gathering of church representatives hosted by SCPO took place on 25 May, when a varied range of views were exchanged between the church reps and reps of the Executive's Civil Law Division. An agreed minute of these discussions has been submitted alongside denominational responses to the consultation. Among points raised were:

The emphasis on the needs of children and others who are vulnerable was welcomed.

· There were serious problems of definition involved in giving rights to "cohabitants"; the variety of relationships made a statutory definition difficult, but if it was left to the courts to decide on a case-by-case basis, people would be left uncertain as to what rights they might have.

· If people made a choice to cohabit without marriage (with all its legal implications), why should the state interfere by imposing a structure of rights and duties?

· There was a danger of giving step-parents duties in relation to children's behaviour (eg under the Antisocial Behaviour Bill) when they do not have parental rights.

· Did "easier" divorce undermine the sense of marriage as a lifelong commitment?

· If the Executive believed it was important for there to be uniform recognition of civil partnership through the UK, why have different parental and cohabitant rights in Scotland?

· If the Executive realised the damage done by the break-up of relationships, why was there not more effort put into (a) examining the causes of breakdown and increasing divorce rates, and (b) supporting people in sustaining stable relationship?

· There seemed to be variations in the Executive's view of marriage: while Cathy Jamieson had said that "the pillar around which (strong and stable) families are built is marriage", at other times marriage was seen as simply one option among many.

· There was a suggestion that a longer time of separation before divorce was appropriate when there were dependent children.

Cathy Jamieson, in opening the recent (16 June) Parliamentary debate, argued that the state should not have any significant role in families that are working well, but had a role "in establishing a sensible framework of legal safeguards for use when, sadly, family relationships break down". However, she wanted to ensure that issues are dealt with before they actually threaten relationships by making sure that services, like mediation and counselling, are available to all families under stress.

Although Annabel Goldie's amendment calling for recognition that "marriage has proved to be the most stable and viable framework within which to raise children" and therefore must not be "undermined by any such legislative changes" was defeated, the Executive continued to reiterate that they "do not propose that cohabitation should have equivalent status with marriage".

There was much discussion of grandparents' rights. Accepting that a blanket right of access for grandparents was not the best way forward, Alex Fergusson felt that the current legal system "too often biases the courts against grandparental contact on the somewhat spurious ground that as grandparents have no legal rights, it follows that they have no legal relevance".

Nicola Sturgeon pointed to the anomaly that, if this legislation goes ahead and the Civil Partnership Bill is enacted, it would be easier to get divorced in Scotland than to dissolve a civil partnership.

Many of the comments noted above from the meeting of church representatives reflect a variety of deeply-held, faith-based convictions about marriage, relationships and the role of the state, as well as pastoral experience.

On the one hand, there is a danger that attempts to uphold a positive vision of (Christian) marriage result in penalising the victims of other, sometimes exploitive, relationships. On the other hand, the logic of accepting the damage done (to children and others) by unstable relationships demands more than accommodation to a trend of increasing breakdowns. As with other problems, we surely need to look beyond dealing with the symptoms by damage limitation, to a much deeper study and tackling of the causes of relationship breakdowns. The challenge of being credibly evangelical about marriage is more demanding for Christians than simply asking the state to defend the institution.