Scottish MPs consider family law review

Family Law|March 30th 2016

A detailed review of Scottish family law may be needed, a committee of Scottish MPs has claimed.

The Justice Committee of the Scottish Parliament recently heard evidence from legal experts and interested parties on two aspects of the Family Law (Scotland) Act 2006: cohabitation rights and parental rights for unmarried fathers.

The Act made a number of changes to existing family legislation, also reducing separation periods for divorce.

Committee Convenor Christine Grahame is MSP for Midlothian South, Tweeddale and Lauderdale. She reported the view of many who had spoken to the Committee that, while the 2006 Act had brought welcome change to Scottish law, it lacked clarity in some areas.

“…we heard concerns that the legislation is insufficiently clear and that lawyers sometimes struggle to tell separating couples what they can actually expect from the provisions.”

The general public had been left confused, she suggested, by the many changes to the law on “adult relationships – cohabitation, marriage and civil partnerships, which have changed significantly in recent years.”

She continued:

“It has been argued that changes have been piecemeal to the extent that the law now lacks coherency and purpose.”

Meanwhile, the family law system still too prone to the promotion of conflict in relation to children, she added.

“Everyone agrees that the welfare of children should be of paramount importance within family law.  However, it appears that the current legislative framework can give rise to adversarial disputes which can make a bad situation worse.”

It may be time, suggested the MSP, for “a wholesale review, focussed as much on how the law is applied, and the mechanism used to resolve disputes, as on what the law says.”

Post-legislative Scrutiny of the Family Law (Scotland) Act 2006 is available here.

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  1. David Mortimer says:

    Children Act 1989 (c.41)

    Parental responsibility for children.

    2.—(1) Where a child’s father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child.

    (2) Where a child’s father and mother were not married to each other at the time of his birth—

    (a) the mother shall have parental responsibility for the child;

    (b) the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of this Act.

    (3) References in this Act to a child whose father and mother were, or (as the case may be) were not, married to each other at the time of his birth must be read with section 1 of the [1987 c. 42.] Family Law Reform Act 1987 (which extends their meaning).

    (4) The rule of law that a father is the natural guardian of his legitimate child is abolished.

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