Scottish Churches Parliamentary Office - From Justice to Opportunity Briefing

The Scottish Parliament's Justice 1 Committee surprised some by expressing significant reservations about aspects of the Family Law Bill in their Stage 1 report (due to be debated in Parliament shortly after the summer recess), although they were ultimately "content to recommend to the Parliament that the general principles of the Bill be agreed to". The Committee "found it difficult to assess exactly what constitutes the general principles of such a disparate Bill", while appreciating that the reforms are intended as response to changes in family life.

During the spring, the Committee heard oral evidence from a wide range of organisations, including several churches and other faith communities; discussion was dominated by three areas – divorce, new rights for cohabitees and support services for couples.

1.Divorce

The key reform proposed in the Bill is to reduce the period of separation taken as evidence of irretrievable breakdown of a marriage from 2 years to 1 (if both parties consent) and from 5 years to 2 (if there is not agreement); in addition, desertion would no longer be a ground for divorce, but adultery would remain so. While the evidence given on behalf of faith communities reflected the diversity of views within and among them, the Committee quoted as a useful summary a comment by Vanessa Taylor of the Scottish Inter-Faith Council: "The faith communities regard marriage as being for life, but all the major faith communities accept or at least tolerate divorce; with the exception of the Roman Catholic community … divorce is increasingly accepted as a facet of modern life."

While there may be some attractions in eliminating completely from the system the concept of fault (with a view to reducing acrimony, particularly in its impact on children), the Committee accepted "the majority view … particularly from religious and faith groups … that a mixed system – particularly with the retention of the separate ground of adultery – should be maintained".

On the reduction in periods of separation, however, while welcoming the policy objective of reducing the impact of acrimony on children, the Committee regretted a lack of "specific evidence of the adverse impact on children of there being a prolonged separation period should there be conflict between the mother and father". They were "persuaded by the argument made in oral evidence by a representative of the United Reformed Church (Alan Paterson) who made the point that five years represents a very long period in the life of a young child and it is important to reduce the amount of conflict to which children are witness", but the majority view in the Committee was that "at this stage, insufficient social research evidence has been received by the Committee to justify the Executive’s specific proposals to reduce the separation periods" (the minority were persuaded by the Executive's case for reduction). On the other hand, the Committee did accept that "by reducing the length of the separation period, divorcing couples are more likely to use the non-fault ground for divorce which is likely to mean shorter periods of acrimony within the family in line with the shorter periods before the marriage comes toan end". The Committee have committed themselves to fuller debate on this at Stage 2 of the Bill's passage.

They also initiated discussion on the possibility of joint petitions for divorce (which they see as fitting with the spirit of the Bill, though not proposed within it). While appreciating that the introduction of a joint petition process may not necessarily have much tangible advantage, the Committee felt there was "symbolic merit in introducing a mechanism which has the appearance of reducing the contested element in divorce" and asked the Executive to look further at this and report back to them. The Deputy Minister said he had an open mind on this, but the Law Society advised against on the grounds that "if parties could, through a joint petition, agree with complete freedom what was to happen and children were involved, that would be a retrograde step" (because there would be no-one apart from the couple to safeguard the child's best interests).

Two further general comments from the Committee are worth noting with regard to further debate at Stage 2:

Some of the faith communities argued against proposals in the Bill to give cohabitants rights parallel to those of married couples (eg re succession): "It is not that we do not want to protect the rights of individuals who are cohabiting, but that we believe that those rights can be protected by other means without raising the status of cohabitation, which would be a threat to the institution of marriage" (John Deighan for the Roman Catholic Church). Others, however, gave more weight to the need to protect vulnerable partners in this way.

The Committee gave broad support to the principle of extending legal protections to cohabiting couples. However, they were concerned that "while cohabitation is not given a status in the same way as marriage or civil partnership, there is a potential for confusion to be created as to the legal consequences of cohabitation"; they therefore feel the Executive need to be "proactive in ensuring that the general public are well-informed on the changes in the law". They were content that the criteria for recognising cohabitation would ensure that it would apply only to those in "intimate, long-lasting and committed relationships", and called for the definition to include same sex couples living together "as if they were civil partners". They were pleased that it is not envisaged that couples living together will be able to "unilaterally opt out of these provisions", but their report also drew attention to some potential complications where the proposals may be unclear in their effect, eg re concurrent or serial cohabitations.

Although there are no proposals in the Bill to end the Scottish common law recognition of marriage by cohabitation with habit and repute, the Committee felt that this was the right time to look at whether this doctrine should be abolished, as part of the consideration of wider reforms to family law, and called on the Executive to report back on whether the abolition of the doctrine would give rise to cases of real disadvantage. They also felt it important that the Executive take this opportunity to seek to dispel "the widely held belief in ‘common law’ marriage" in order to avoid confusion with the limited rights for cohabitants which the Bill will create.

In common with others, faith communities were united in calling for extra Executive support for family and couple support, not only on the verge of divorce but much earlier (including marriage preparation): "people who are contemplating marriage should be supported so that they make the decision with integrity" (Dr Alison Elliot, Church of Scotland). In addition they expressed concern that current Executive support is limited to secular bodies: "Although a lot of funding goes to mediation services, it is for secular services. Secular counselling may be helpful for some couples with a religious background, but it is not helpful for all. We would like funding to be available to faith-based organisations that offer mediation or would like to be able to offer mediation. We know of cases of faith-based organisations being turned down for such projects" (Vanessa Taylor, SIFC).

Though not addressing this specific point re faith-based services in their report, the Committee doubted that reconciliation services were available to men and women at a sufficiently early point in the process; They highlighted two conclusions in particular.

4.Other Issues

Parental Responsibilities and Rights

The Committee welcomed the proposed extension of PRRs to unmarried fathers; accepting that "automatically granting PRRs to biological fathers could be to the detriment of existing arrangements", they agreed with the Executive’s approach of using the ethos of joint registration as the determining factor for conferring PRRs and with not making this legislation retrospective.

Reform of forbidden degree of marriages – relationships by affinity

The Committee heard some opposition to the proposal to remove the barrier to a marriage between individuals and their former in-laws, on the ground that it is undesirable for a child’s relationship with an adult to change, eg a grandmother marrying her ex son-in-law would then become the child’s stepmother; they sought assurance from the Executive that they had reflected on this point, without at this stage rejecting the proposal.

Void marriages solemnised in Scotland

The Committee supports the view that where a marriage has been solemnised under ‘duress’ or ‘error’, protection should apply irrespective of where it took place, so that a marriage of a Scots domicile could be declared void even if it was solemnised overseas (the Bill only relates to marriages solemnised in Scotland). The Executive have confirmed that it will bring forward an amendment at Stage 2 to meet these concerns.

Religious divorces

Despite hearing a plea from the Jewish Community for provision in the Bill addressing a possible anomaly between religious and civil law on divorce, the Committee was reluctant to include this as "the law should not conflate civil and religious divorces".

Protection Against Domestic Abuse

In considering some provisions in the Bill re domestic abuse, the Committee recommended that the Executive should consult legal practitioners, sheriffs, the police and other stakeholders as a matter of urgency with a view to simplifying this area of the law.

They explored the possibility of a rebuttable presumption in the Bill against contact between the abusive partner and any children (advocated by Women's Aid), but felt that this could act to encourage people to make allegations where they may not have done so otherwise, or to exaggerate them. In such cases a presumption of no contact would not necessarily be a fair reflection of the suitability of either parent to continue to have a relationship with their child. The Committee invited the Executive to consider whether guidance to the courts would be of assistance in this area.

Legal Regulation of Civil Partnerships

The Minister confirmed that it was the Executive’s intention "as far as is appropriate" to treat civil partners in an equivalent manner to married couples, and same-sex cohabitants in an equivalent manner to opposite-sex cohabitants. There will therefore be "consequential amendments to existing legislation, including the Civil Partnership Act", to be brought forward at Stage 2: "While each consequential amendment may be relatively minor of itself, when taken together, they will have the effect of ensuring that there is parity of treatment between spouses and civil partners. The Committee considers that this is an important achievement".

Abolition of the status of illegitimacy

The Committee considered that "to continue to brand children born to unmarried parents as illegitimate is unacceptable in a modern Scotland". Although abolition of the status of illegitimacy may be largely symbolic and is not in the Bill (because some remaining aspects of it are reserved to Westminster), the Committee called on the Executive to explore with the UK Government ways in which the remaining statutory obstacles to this can be removed.

The Committee expressed some alarm at the lack of clarity in health boards and education authorities on aspects of parental responsibilities and rights and urged the Executive to consider its position on this matter.

The Committee’s impression - from the evidence they heard - was that in a very small number of cases, resident parents appear able wilfully to ignore a decision of the court on parental rights. They recognised that there are no easy solutions to this problem and were not aware that any jurisdiction has been able to find an effective enforcement mechanism in those cases where acrimony persists between the parents, but commended the practice of the specialised family court in Glasgow and Strathkelvin as having "much to commend it", recommending a possible Scotland-wide system of specialist family courts, utilising a pool of experienced and specially trained sheriffs (perhaps on a roving basis).

The Committee stated their view that contact centres can perform a valuable function as the first step in allowing contact between family members where relationships have broken down. They also see parenting agreements as a way forward in addressing many of the issues raised by those who do not think that the current law is as balanced as it should be. They therefore ask that the draft parenting agreement (currently being drawn up) should be available to them in time to decide whether there are aspects which would merit being put on a statutory footing.

The Committee expressed frustration at the lack of official statistical data on this subject, making it "practically impossible for the Committee to establish the extent to which grandparents being refused contact orders by the court is a problem". While agreeing with the Executive that the Bill should not include a provision conferring automatic rights on grandparents, they are keen to see how the role of grandparents can be reinforced in the parental agreement. They also requested a draft of the proposed Grandparents’ Charter as soon as possible and certainly before the Stage 1 debate in Parliament.

The Committee called on the Executive to review the existing provisions of the Children (Scotland) Act 1995 and to take steps to publicise to step-parents those provisions which may be of direct relevance and benefit to them. Recognising "the increasingly important role that step-parents play in modern Scottish family life, but that conferring PRRs on step-parents is a sensitive issue", the Committee wish to examine this issue further at Stage 2.

The Stage 1 debate (on the Justice 1 Committee's report) is due to take place in Parliament in the week of 12 September. Assuming Parliament at that point agrees the general principles of the Bill, the Committee will resume detailed scrutiny of it, with amendments.

SCPO will continue to monitor developments. While amendments can only be tabled by MSPs, some members of the Committee have indicated a willingness to table amendments suggested by churches. SCPO is happy to advise on this.

We also have available a more complete summary of the Stage 1 evidence (electronic or hard copy); please get in touch if you wish a copy.