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Family Law (Scotland) Act 2006 [S]

The Family Law (Scotland) Act was introduced to the Scottish Parliament on 7 February 2005. It includes measures to extend parental rights and responsibilities for unmarried fathers, reduce separation periods for divorce and introduce legal rights for cohabiting couples. Alongside the publication of the Act the Scottish Executive has announced a number of non-legislative initiatives to support families, including a charter for grandparents and a Parenting agreement for Scotland.

Main provisions in the Act (as introduced)

Parental Rights & Responsibilities (PRRs) for unmarried fathers (s.17) - The Act proposes to amend section 3 of the Children (Scotland) Act 1995 so that joint registration of a child by unmarried parents confers automatic Parental Rights & Responsibilities (PRRs) to both the mother and the father of the child. This provision will only apply to children born after the date of commencement of the Act.

Reducing the Non-Cohabitation Periods required for Divorce (s.10) - The Act proposes to amend the Divorce (Scotland) Act 1976 to reduce the periods of non-cohabitation required to establish the irretrievable breakdown of a marriage. The period of non-cohabitation will be reduced from two years to one year with consent and from five years to two years without consent.

Legal safeguards for cohabiting couples and their children (s.18-23) - The Act introduce  legal safeguards for cohabiting couples to "introduce greater certainty, fairness and clarity into the law by establishing a firm statutory foundation for disentangling the shared life of cohabitants when their relationship ends." The measures provide basic safeguards relating to the sharing of household goods, money and property and financial provision on relationship breakdown. Sections 21 and 22 could  have significant implications for children and young people.

Matrimonial interdicts (s. 8&9) - The Act proposes to extend section 14 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 by extending a matrimonial interdict (restrains the conduct of one spouse towards another or a child in the family) beyond the matrimonial home to include an applicant's place of work, home or school. The aim of this measure is to improve the protection offered to members of families.

Cohabitation: domestic interdicts (s. 24) - The Act proposes to introduce domestic interdicts which will apply to unmarried cohabitants, either opposite-sex or same sex. These interdicts will have much the same effect as matrimonial interdicts.

Domicile of persons under 16 (s.16) - The Act changes the definition of the domicile of person under the age of 16. It provides that a child's domicile before they have reached the age of 16 will be that of the country with which the child is for the time being most closely connected. At present the domicile of a child is dependent on the child's father, if the parents are married and the mother if the parents are unmarried. The intention of this provision is to further reduce the significance of the status of illegitimacy in Scots Law.

Non-legislative initiatives to be developed alongside the Act are:

  • A Charter for grandchildren (was grandparents) to gain wider recognition of the role played by grandparents

  • A Parenting Agreement for Scotland - a tool that parents could use to resolve conflicts over parenting

  • A single national family relationship helpline offering basic information to help families

  • A public information campaign to inform people of changes to the law and signpost sources of advice

  • Supporting family mediation services across Scotland
The Parenting Agreement for Scotland will be authored by Alan Finlayson OBE, a former Children's Reporter and Honorary Sheriff of Lothian and Borders at Edinburgh. His work will be supported by a steering group of representatives from key organisations such as the Association of Directors of Social Work in Scotland; Family Law Association; Parenting Across Scotland; Couple Counselling Scotland; Grandparents Apart Self Help Group Scotland; Stepfamily Scotland; Children in Scotland; Scottish Women's Aid; and Families Need Fathers. This group will also support the Executive's work on a Grandparents' Charter.


Background

A number of reports on areas of family law were published in preceding years, including a consultation paper - Improving Family Law - published by the Scottish Office in 1999. This was followed by a White Paper in 2000, Parents and Children.

Between April and June 2004 the Executive consulted on reforms to family law with the publication of the consultation paper Family Matters. The consultation document set out firm proposals to be contained a future family law Bill including PRRs for unmarried fathers and reducing the non-cohabitation periods for divorce.

In Family Matters the Executive also consulted on two areas not contained in the Bill, the introduction of Stepparent Parental Responsibilities and Parental Rights Agreements (SPRPRAs) and contact with wider family, in particular grandparents.

Timeline

07/02/05 - Bill introduced to Scottish Parliament

02/05 - 04/05 - Justice 1 Committee called for written evidence on the general principles of the Bill at Stage 1 from interested parties.

Visit the Committee's website to read the evidence submitted.

Stage 1

Subordinate Legislation Committee on 15 March 2005

Justice 1 Committee on 16 March 2005; 20 April 2005; 4, 11, 18, 25 May 2005; 1, 8, 15, 22, 27, 29, 30 June 2005

Finance Committee on 10, 24 May 2005


07/07/05 - Stage 1 report published

09/09/05 - Scottish Executive to response published

15/09/05 - Stage 1 debate. Bill passed at stage 1.

Stage 2

05/10/05 - Stage 2 (Day 1) - amendments to s. 1- 7 of the bill are debated. Bill amended to include provision to abolish marriage by cohabitation and repute.

Stage 3

15/12/05 - Stage 3 debate. Bill passed at stage 3

20/01/06 - Act given Royal assent

04/05/06 - Act commences

Further information

Family Law (Scotland) Bill (as introduced)
Family Law (Scotland) Bill (explanatory notes)
Family Law (Scotland) Bill (policy memorandum)
 Family Law (Scotland) Bill (as amended at Stage 2)
Family Law (Scotland) Act 2006