Family law in Scotland: overview

A Q&A guide to family law in Scotland.

The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.

To compare answers across multiple jurisdictions visit the Family Country Q&A tool.

This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (3rd edition), General Editor James Stewart of Pennington Manches LLP. Family Law was published in association with the International Academy of Matrimonial Lawyers.

For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.

Contents

Jurisdiction and conflict of law

Regulatory framework

1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?

Sources of law

Child and family law in Scotland are rooted in common law but legislation is so far reaching that there are effectively two sources of law:

  • Legislation passed by the Scottish Executive, the UK government and the EU.

  • Case law as applied by the courts.

The following UK, Scottish and EU statutes are currently governing matrimonial law in Scotland:

  • Domicile and Matrimonial Proceedings Act 1973 (1973 Act).

  • Divorce (Scotland) Act 1976 (1976 Act).

  • Matrimonial Homes (Family Protection) (Scotland) Act 1981 (1981 Act).

  • Family Law (Scotland) Act 1985 (1985 Act).

  • Family Law Act 1986 (1986 Act).

  • Children (Scotland) Act 1995 (1995 Act).

  • Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation).

  • Civil Partnership Act 2004 (2004 Act).

  • Family Law (Scotland) Act 2006 (2006 Act).

  • Marriage and Civil Partnership (Scotland) Act 2014 (2014 Act).

Court system

Family law cases in Scotland can be brought at first instance before either the Court of Session, being the supreme court in Scotland, or in local Sheriff Courts. These are ordinary civil courts and there are no separate family courts. While some proceedings involving children are held in private, the majority of family proceedings are held in open court.

Jurisdiction

 
2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?

Divorce

In divorce actions, Scotland has jurisdiction when it is the place where one of the following applies at the date of commencement of proceedings:

  • The spouses are habitually resident there.

  • The spouses were last habitually resident if one still resides there.

  • The defender is habitually resident there.

  • The pursuer (petitioner or applicant) is habitually resident as long as he or she has resided there for at least one year before the application was made.

  • The pursuer is habitually resident as long as he or she has resided there for at least six months and is domiciled there.

  • Both spouses are domiciled there.

In the UK, "habitual residence" relates to the relevant territorial unit (for example, Scotland) (Article 66, Brussels II bis Revised). Scotland is not itself an EU member state. It is a territorial unit. Where Scotland has jurisdiction, proceedings can be brought in either the Court of Session (the Supreme Civil Court in Scotland) or in the local Sheriff Court (provided that the jurisdictional requirements for the Sheriff Court can be met). If no court of a member state has jurisdiction under the above provisions, the Court of Session has residual jurisdiction where either party is domiciled in Scotland when the action is commenced, or was habitually resident in Scotland throughout the period of one year ending with that date (Article 14, Brussels II bis Revised and section 7, Domicile and Matrimonial Proceedings Act 1973 (1973 Act)).

A divorce action can only be heard in the Sheriff Court where jurisdiction can be established for the Court of Session and either one of the parties has been (section 8(3), 1973 Act):

  • Resident in the Sheriffdom for 40 days, ending with the date when the divorce action is started.

  • Resident for a period of at least 40 days, ending not more than 40 days before the action was started, where that party has no known residence in Scotland .

Property

A court hearing a divorce action can make orders in relation to the matrimonial property wherever it is situated and there is, therefore, no separate jurisdictional requirement. Outside divorce proceedings, jurisdiction is based on where the property is situated.

Children

Jurisdiction regarding parental responsibilities and rights is conferred by the Brussels II Regulation. However, it does not apply to the establishment of or contesting of the parent/child relationship or naming a child and the Family Law Act 1986 (1986 Act) governs these situations. If the child is habitually resident in Scotland at the time the court is seised, the Scottish courts will have jurisdiction (Article 8, Brussels II bis Revised). There are specific provisions under Brussels II bis Revised which deal with the situation where a child is wrongfully removed from a member state.

Where a Scottish court is exercising jurisdiction in divorce proceedings, the parties can agree that such court will have jurisdiction in respect of the child, provided that at least one of them has parental responsibilities and the court believes that the exercise of jurisdiction is in the best interests of the child (Article 12). Where no habitual residence can be established and jurisdiction cannot be established under Article 12, the courts of the member state in which the child is present have jurisdiction (Article 13(1)).

If no member state has jurisdiction under Brussels II bis Revised, national law will determine whether Scotland has jurisdiction (Article 14). Domestically, Scotland has jurisdiction if the child is habitually resident there (section 9, 1986 Act). The Court of Session and the Sheriff Court have jurisdiction to make orders relating to parental responsibilities and rights, including within the context of divorce proceedings.

Domicile and habitual residence

 
3. How do the concepts of domicile and habitual residence apply in relation to divorce, financial arrangements, and children?

Domicile has been stated to be determined from "a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time" (Udny v Udny (1869) 7 M (HL 89 at 99)).

Habitual residence is not defined by statute either domestically or in a European context but is a question of fact. Domestically, it has been held to be a residence "which is being enjoyed voluntarily for the time being and with the settled intention that it should continue for some time" (Dickson v Dickson 1990 SCLR 692, IH at p703). The particular circumstances of each case must be examined and it is to be understood according "to the ordinary and natural meaning" of the two words (Re J (a minor) (abduction) 1990 2 AC 562 at 578).

In relation to the 40-day rule in Sheriff Court actions, residence has been held to be where a person resides (that is, his ordinary or principal place of residence). Although this does not require the person to be physically based there at all times, the nature and quality of physical presence is a factor to be taken into account (Williamson v Williamson 2009 FamLR 44 and 153).

In the context of habitual residence, residence is where the person resides or lives, a person's abode or dwelling (Clive 1997 JR 137 at 139). Therefore, physical presence is required but it need not be uninterrupted, which seems to be in line with the test for Sheriff Court actions. The residence will be habitual if there is an intention to reside there for an appreciable period (Cameron v Cameron 1996 SLT 306 at 313).

In cases where Brussels II bis Revised applies, the European Court of Justice (ECJ) has defined habitual residence as being "the place where the person has established, on a fixed basis, his permanent or habitual centre of his interest, with all the relevant facts being taken into account for the purpose of determining such residence". It has further held that, in relation to children, physical presence is required but is not the only factor and that the child must be, in some way, integrated in a social and family environment in that country (proceedings brought by A (Case C-523/07), 2nd April 2009).

Conflict of law

4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?

Procedure

In Brussels II bis Revised cases, a court of a member state must decline the case where it has no ground of jurisdiction and another member state does (Article 17).

Where proceedings have been brought before two member states that both have jurisdiction, the court seised second must stay its proceedings until the jurisdiction of the court first seised is established and, if that jurisdiction is established, the second seised court must decline jurisdiction (Article 19, Brussels II bis Revised).

Within the United Kingdom, in cases of divorce, separation, declarator of marriage or nullity (consistorial actions), the Domicile and Matrimonial Proceedings Act 1973 (1973 Act) provides for mandatory and discretionary sists (that is, a suspension of legal proceedings) (schedule 3, paragraphs 8 and 9). Where, before the proof in a divorce action, proceedings for divorce or nullity are continuing in a related jurisdiction (that is, England, Wales, Northern Ireland, Guernsey, Jersey or the Isle of Man), then the Scottish court, in certain circumstances, must stay proceedings in favour of that related jurisdiction.

Factors

A sist will be granted in favour of a related jurisdiction if the conditions are met:

  • The parties resided together after the date of the marriage.

  • The place where they resided together when the action in the Scottish court was started or, if they were not residing together at the time, where they last resided together before the date on which that action was started, is in that jurisdiction.

  • Either party was habitually resident in the related jurisdiction for one year ending with the date on which they last resided together before the date on which the action in the related jurisdiction was started.

In addition, a discretionary sist may be granted where, before the proof in a consistorial action, any other proceedings in respect of the marriage or affecting its validity are continuing in a jurisdiction outside Scotland, and the balance of fairness requires that those proceedings should be completed before further steps are taken in Scotland. The court must have regard to all relevant factors, including the convenience of witnesses and any delay or expense which may result from the proceedings being sisted (stayed), or not being sisted (paragraph 9(2)).

In domestic cases of parental responsibility and rights, where proceedings are continuing in another court, then the Scottish court proceedings may be sisted on the basis that it is more appropriate for the proceedings to continue in that other court (section 14, 1986 Act), although it is not mandatory.

 

Pre- and post-nuptial agreements

Validity of pre- and post-nuptial agreements

5. To what extent are pre- and post-nuptial agreements binding?

Although there is an ancient tradition of marriage contracts in Scotland, until quite recently it was very unusual for a couple, either before or after marriage, to execute an agreement regulating the issue of financial provision to be made on divorce. However, pre-nuptial and post-nuptial agreements are becoming increasingly common.

Both pre- and post-nuptial agreements are contracts entered into by a married couple either before or after marriage. The Scottish courts have always been reluctant to interfere with an agreement entered into freely between two adults of sound mind and, although the enforceability of such an agreement has never been fully tested in Scotland, it is generally accepted to be the case that, providing certain conditions are complied with, a pre- or a post-nuptial agreement will be enforced by the Scottish courts.

The most common type of pre-nuptial agreement in Scotland is that which seeks to ring-fence certain assets to exclude them from the definition of "matrimonial property" which would otherwise be available for division upon separation or divorce. Under the Family Law (Scotland) Act 1985, any assets held by a party at the time of marriage, or acquired by that party during the marriage by way of gift from a third party or inheritance, are in any event excluded from the matrimonial property. Pre-nuptial agreements in Scotland generally seek to extend the ring-fencing to include assets derived from assets brought into the marriage as non-matrimonial property.

It is generally accepted that the conditions that must be met to render a pre- or post-nuptial agreement enforceable are as follows:

  • The agreement must have been presented to the other party for consideration at a time when the circumstances are such that they do not create in themselves a coercive factor (for example, immediately before a wedding).

  • Both parties must have a proper opportunity to take legal advice.

  • The terms of the agreement must be fair and reasonable at the time they were entered into.

Under section 16 (1) (b) of the 1985 Act, where the parties to a marriage have entered into an agreement regarding financial provision to be made on divorce, the court must make an order setting aside or varying the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into. Only in exceptional circumstances has that provision been implemented in relation to agreements made post-separation, and the provision has not been fully tested in relation to pre-nuptial agreements.

In the case of Kibble v Kibble 2010 SLT (Sh Crt) 5, it was decided that section 16 also applies to pre-nuptial agreements.

 

Divorce, nullity and judicial separation

Recognition of foreign marriages/divorces

6. Are foreign marriages/divorces/civil partnerships recognised?

Marriages

Under section 38 of the Family Law (Scotland) Act 2006, a marriage is formally valid and recognised in Scotland provided that the formalities required by the law of the country in which the marriage took place were complied with. Further, the parties must have had capacity to contract the marriage under the law of their respective domiciles. However, the Scottish courts will not recognise the marriage where one or both parties was/were placed under any form of duress, even where the above conditions have been satisfied. Further, the foreign marriage will not be recognised where the law of the domicile is contrary to Scottish public policy.

For persons domiciled in Scotland, "capacity" not only refers to a person's mental state, but also includes issues such as age and forbidden degrees of marriage.

Divorces/annulment

The Family Law Act 1986 (1986 Act) provides that all divorces granted by a court of civil jurisdiction within the British Islands are recognised throughout the UK (section 44(2)), subject to certain grounds for refusal (see below). Therefore, non-judicial divorces are no longer recognised in Scotland, except those granted before 1 January 1974 (section 54), provided that they were recognised as valid under the law as it stood before that date.

Regarding divorces granted outside the British Islands, a distinction is made between divorces granted by means of proceedings, judicial or otherwise, and those granted otherwise than by means of proceedings. An example of a divorce granted by means of proceedings that are not judicial is the Jewish Gett. However, such proceedings still require a certain degree of formality and at least the involvement of some agency of the state, or recognised by it, having a function that is more than simply probative (Chaudhary v Chaudhary [1984] 3 All ER 1017 at 1030-1031).

An overseas divorce granted by means of proceedings must be recognised by the Scottish courts if it is effective under the law of the country in which it was obtained. However, either party to the marriage must have been, at the date of commencement of proceedings, one of the following (section 46, 1986 Act):

  • Habitually resident in the country in which the divorce was obtained.

  • Domiciled in that country.

  • A national of that country.

Similarly, an overseas divorce obtained by means other than through proceedings must be recognised by the Scottish courts if the divorce is effective under the law of the country in which it was obtained. However, the remaining conditions are that, on the date on which the divorce was obtained (section 46, 1986 Act):

  • Either:

    • both parties were domiciled in that country; or

    • one party was domiciled in that country and the other party was domiciled in a country under whose law the divorce is recognised as valid.

  • Neither party was habitually resident in the UK for one year immediately before the date on which the divorce was obtained.

There are specific grounds that the court can use for refusing to recognise a foreign divorce which are set out in section 51 of the 1986 Act.

Civil partnerships

Civil partnerships are recognised in Scotland applying the same criteria as those used to determine the recognition of a marriage, and under the Civil Partnership Act 2004 (2004 Act).

Divorce

7. What are the grounds for divorce?

Divorce

The grounds of divorce are set out in section 1 of the Divorce (Scotland) Act 1976 (1976 Act), as amended by the Family Law (Scotland) Act 2006 (2006 Act). In an action for divorce, the court can only grant a decree of divorce if it is established that the marriage has broken down irretrievably by reason of one of the following facts:

  • Since the date of the marriage, the defender (respondent) has committed adultery.

  • Since the date of the marriage, the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer (petitioner) cannot reasonably be expected to cohabit with the defender.

  • There has been no cohabitation between the parties at any time during a continuous period of one year after the date of the marriage and the defender consents to the granting of divorce.

  • There has been no cohabitation between the parties at any time during a continuous period of two years after the date of the marriage.

Nullity

The grounds of nullity of marriage are:

  • Either party is already married at the time of the marriage.

  • Either party is under the age of 16 at the time of the marriage.

  • The parties are of the same sex.

  • The parties are within the prohibited degrees of relationship specified in the Marriage (Scotland) Act 1977.

  • Non-compliance with the essential requirements of marriage.

  • Defective consent.

  • Incurable impotency.

Judicial separation

Judicial separation (that is, a court order that ends the spouses' obligation to live together) is rare.

Finances/capital and property

 
8. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?

Under section 8 of the Family Law (Scotland) Act 1985 (1985 Act), either party to the marriage can apply to the court in an action of divorce for one or more specified orders. The main orders that can be sought are:

  • The payment of a capital sum.

  • The transfer of property.

  • The making of a pension sharing order.

  • An award of periodical allowance.

The court must make such an order as is justified by specified principles and is reasonable having regard to the resources of the parties (section 9, 1985 Act).

The principles to be applied are that:

  • The net value of the matrimonial property should be shared fairly between the parties to the marriage.

  • Fair account should be taken of any economic advantage derived by either person from contributions by the other, and of economic disadvantage suffered by either person in the interest of the other person or of the family.

  • Any economic burden of caring after divorce for a child under the age of 16 years should be shared fairly between the parties.

  • A person who has been dependent to a substantial degree on the financial support of the other person should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from the date of the decree of divorce, to the loss of that support on divorce.

  • A person who at the time of the divorce seems likely to suffer serious financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.

The overriding principle is that which requires the matrimonial property to be shared fairly between the parties. The "matrimonial property", which is a concept peculiar to Scotland, is defined as all the property held by either party, or by the parties in their joint names, at the date of separation (not the date of divorce) and which has been acquired by them during the course of the marriage. In addition, a property acquired before the marriage by the parties as a family home is also part of the matrimonial property. Therefore, capital assets held by either of the parties before the marriage do not form part of the property to be divided.

An exception to the definition of matrimonial property is that assets acquired during the marriage by way of gift from a third party or by way of inheritance are excluded.

 
9. What factors are relevant to the exercise of the court's powers?

There are various factors to which the court must have regard when considering each of the section 9 principles under the Family Law (Scotland) Act 1985 (1985 Act) (see Question 8). These factors are set out in section 11. The conduct of either party is in essence excluded as a factor to be taken into account.

The net value of the matrimonial property (that is, after matrimonial debts have been taken into account) is taken to be shared fairly between the parties when it is shared equally or in such other proportions as are justified by special circumstances. "Special circumstances" are deemed to include the source of the funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage.

The role of the court is to distribute the assets of the parties which fall within the definition of matrimonial property (see Question 8) in such a way that, taking account of the resources available to the parties and special circumstances, a fair division is achieved.

It should be noted that once a decree of divorce is granted, no further claim for financial provision of any type, other than child maintenance, can be applied for, and the granting of decree of divorce extinguishes any entitlement to financial provision, other than that which has been already awarded by the court or is the subject of a binding agreement.

 
10. What is the court's current position on the division of assets?

The overriding principle is that there should be a fair sharing of the matrimonial property. A fair sharing must be an equal sharing unless there are circumstances which justify an unequal sharing. The most common special circumstance used to argue that a departure from the equal sharing principle is justified is a source of funds argument (that is, that the source of the funds used to acquire any of the matrimonial property was not derived from the income or efforts of the parties during the marriage). Cases where such arguments have been deployed successfully include those where the source of the funds was:

  • Inherited wealth (see Willson v Willson 2009 Fam LR 18).

  • A gift to one of the spouses (see Armstrong v Armstrong 2008 Fam LR 125).

Claims under s 9(1)(b) of the Family Law (Scotland) Act 1985 (1985 Act) (fair account to be taken of any economic advantage/disadvantage suffered) can arise where one spouse has given up or has not pursued a career, usually with promotion prospects, so that he or she can raise the children of the marriage. Such spouses may be left without a pension and with limited future earning capacity, while their partners may have derived an economic advantage because, among others, they have not had to pay for childcare during the marriage. The court has been sympathetic to such claims (see Burnside v Burnside 2007 Fam LR 144), although other recent cases (see B v B 2012 Fam LR 65) show that the court must be satisfied that the claimant would have been in employment had they not been married. Spouses who have contributed, even minimally, to the family income and have seen their partner take an advantage from that contribution have also brought successful s 9(1)(b) arguments (see Marshall v Marshall 2007 Fam LR 48 and Hodge v Hodge 2008 Fam LR 51).

Finances/maintenance

11. How does ongoing spousal maintenance operate following marital breakdown?

In Scotland, different criteria must be applied to claims for spousal maintenance made before and after divorce. Under section 1 of the Family Law (Scotland) Act 1985 (1985 Act), spouses owe an obligation of maintenance (known as aliment) to each other.

The obligation to aliment only subsists for as long as the parties are married to each other. The amount of aliment to be awarded by a court against one party in favour of the other party is determined by the court taking into account the following factors:

  • The needs and resources of the parties.

  • The earning capacities of the parties.

  • Generally all the circumstances of the case.

In the period where the parties remain married to each other and before a final financial arrangement is made, it is usual for one spouse to aliment the other, either through agreement or by court order, to allow both parties, as far as possible, to maintain the same standard of living that they enjoyed up to the point of separation.

 
12. Is it common for maintenance to be awarded on marital breakdown?

After divorce, spousal maintenance, known as periodical allowance, will only be awarded if it is justified on application of the principles set out in section 9 of the Family Law (Scotland) Act 1985 (1985 Act) (see Question 8). A periodical allowance will only be awarded if the financial circumstances of one spouse following divorce are such that he or she requires continuing financial support from the other spouse to allow him or her to adjust to the financial arrangements arrived at as part of the divorce. It is the duty of the court to seek to achieve a clean break and the court must be satisfied before making an award of periodical allowance that the spouse's entitlement cannot be satisfied by an enhanced capital payment.

Controversially, under section 9 (1) (d) of the 1985 Act, periodical allowance cannot be awarded for a period of longer than three years, except in exceptional circumstances. Therefore, in almost all cases, the entitlement to spousal maintenance ends a maximum of three years after the granting of divorce.

 
13. What is the court's current position on maintenance on marital breakdown?

The emphasis on achieving a financial clean break has meant that the court has been reluctant to grant periodical allowance. For example, in B v B 2012 Fam LR 65, while it was acknowledged that the pursuer (petitioner) would require time to adjust to a financially independent lifestyle, Lord Tyre made an order for payment by the pursuer to the defender (respondent) of six instalments of capital instead of an order for periodical allowance. The first, in the sum of £4,000, was to be paid within two weeks of divorce. The remaining five instalments, in the sum of £2,000 each, were to be paid at six monthly intervals commencing six months after divorce. This would allow the defender greater flexibility with regard to financial planning during the three years following divorce.

In a case in which periodical allowance was granted, W v W 2012 Fam LR 99, the property owned by the parties was roughly equal in value, and the wife was not to receive a substantial capital sum. An award of periodical allowance was granted in her favour at a rate of £1,000 for 18 months under section 9(1)(d) of the Family Law (Scotland) Act 1985 (1985 Act), to allow her to adjust to the loss of her husband's financial support. This would enable the pursuer to pay off her car loan, make provision for major household bills and make further progress with her degree qualification.

Child maintenance

14. On what basis is child maintenance calculated?

In cases where the parents of a child live apart and the child lives with one of them, the calculation and collection of child maintenance being paid to the parent with care (that is, the parent with whom the child lives) by the non-resident parent (NRP) is governed by the Child Support Act 1991. The Child Maintenance Service (CMS) has exclusive jurisdiction in respect of child maintenance in Scotland.

The rules state that an application can be made either by the parent with care, the non-resident parent or, in certain circumstances, the child. There are five rates applied to child maintenance, which are based on the non-resident parent's gross weekly income (GWI), up to a maximum of GB£3000:

  • Basic rate. The basic rate is applied where the GWI is GB£200 to GB£800. The following percentages of the non-resident parent's GWI must be paid to the parent with care:

    • 12% where there is one child;

    • 16% where there are two children;

    • 19% where there are three or more children.

  • Basic Plus rate. The basic plus rate is applied where the GWI is more than GB£800 up to a limit of GB£3000. In such cases, the Basic Plus rate and the Basic rate applies. The following percentages of the non-resident parent's GWI must be paid to the parents with care:

    • 12% of the first GB£800 of GWI and 9% of the GWI over GB£800 up to GB£3000 where there is one child;

    • 16% of the first GB£800 of GWI and 12% of the GWI over GB£800 up to GB£3000 where there are two children;

    • 19% of the first GB£800 of GWI and 15% of the GWI over GB£800 up to GB£3000 where there are three or more children.

  • Reduced rate. The reduced rate is applied where the GWI is more than GB£100 but less than GB£200; the non-resident parent pays GB£7, plus the following percentages of their GWI over GB£100:

    • 17% for one child;

    • 25% for two children;

    • 31% for three or more children.

  • Flat rate. The flat rate is applied where the GWI is GB£100 or less. A flat rate of GB£7 is due no matter how many children require maintenance from the non-resident parent. This is also the rate that is paid if the non-resident parent or their partner whom they live with receives income-related benefits or pension credit, or the non-resident parent is in receipt of certain benefits.

  • Nil rate. The nil rate is applied where the GWI is less than GB£7, in which case no payment will be due from the non-resident parent for child maintenance.

The basic and reduced rates can be affected if:

  • The child or children stay overnight with the non-resident parent on average one night or more per week.

  • There are children living with the non-resident parent for whom they or their partner receive child benefit (relevant other children).

CMS may also take special expenses into account, such as when the child has a disability. There are also various grounds for applying to CMS for a variation of the maintenance calculation.

Every parent in Scotland owes an obligation of aliment (the sum paid for maintenance) to his or her children until each child reaches the age of 18, or 25 where a child is undergoing appropriate training or education (section 1, Family Law (Scotland) Act 1985 (1985 Act)). The level of aliment will be determined by the parties' needs and resources, their earning capacities and all the circumstances of the case. This obligation covers all matters not dealt with under the exclusive jurisdiction of CMS, such as private school fees, additional maintenance where the non-resident parent's GWI exceeds the maximum taken into account by CMS or in respect of older children still in education.

Reciprocal enforcement of financial orders

15. What is the legal position on the reciprocal enforcement of financial orders?

The relevant legislation for enforcement of financial orders in one territorial unit of the UK where the order is made in a different territorial unit of the UK is the Maintenance Orders Act 1950 (1950 Act). Under section 16, Scotland can enforce a financial order made in another part of the UK if it is registered in Scotland in accordance with the Act. The orders to which this section relates include capital payments and maintenance.

Where a superior court granted the order, it must be registered in the Court of Session (section 17, 1950 Act). Any other order must be registered in the Sheriff Court within the jurisdiction of which the defender appears to be residing. Where such an order has been registered, it may be enforced in Scotland as if it were a Scottish judgment (section 18, 1950 Act) and, therefore, diligence can be effected under the Debtors (Scotland) Act 1987, for example, by serving an arrestment against the debtor's earnings.

Special rules are provided under the Brussels and Lugano Conventions and Regulation 44. These instruments all provide that a judgment from one of the contracting or member states must be enforced in Scotland when, on the application of any interested party, it has been declared enforceable there (Article 38, Regulation 44,; Article 31, Brussels Convention 1968; Article 38, Lugano Convention 2007). Paragraph 2 of each respective Article provides for enforcement in the separate territorial units within the UK. The application must be submitted to the Court of Session or, in respect of a maintenance judgment, the Sheriff Court, on transmission by the Secretary of State (Article 39(1) and Annex II, Regulation 44 and Lugano; Article 32 Brussels Convention).

The particular sheriffdom will be that in which:

  • The party against whom enforcement is sought is domiciled.

  • The enforcement is to be carried out.

It is, therefore, not necessary that the debtor is domiciled in Scotland. It is sufficient if he or she has assets held in Scotland. The debtor may appeal against the declaration of enforceability. There are various other Conventions that apply to Scotland in relation to enforcement of financial provisions (for example, the Hague Convention 1973 and the New York Convention 1956).

Financial relief after foreign divorce proceedings

16. What powers are available to the court to make orders following a foreign divorce?

The relevant legislation in Scotland is Part IV of the Matrimonial and Family Proceedings Act 1984. Where the parties have divorced abroad, an application can be made to either the Court of Session or the Sheriff Court for an order for financial provision, whether or not a financial order was made during those divorce proceedings. However, in order to establish jurisdiction in a Scottish court, the following must apply (section 28(2)):

  • The applicant was domiciled or habitually resident in Scotland on the date of the application.

  • The other party to the marriage:

    • was domiciled or habitually resident in Scotland on either the date when the application was made or when the parties last lived together as husband and wife; and

    • on the date of the application, was an owner or tenant of, or had a beneficial interest in, property in Scotland that had at some time been the matrimonial home.

For the application to be made in the Sheriff Court, one of the following must apply:

  • One of the parties was, on the date of the application, habitually resident in the sheriffdom.

  • Where the second point above applies (where, on the date of the divorce application, the other party to the marriage had a beneficial interest in a property in Scotland), the property is wholly or partially within the sheriffdom.

The court must apply Scottish law and must place the parties in the financial position in which they would have been had the divorce been obtained in Scotland on the date on which the foreign divorce took effect, so far as is reasonable and practicable (section 29). The parties' resources and any financial provision or transfer of property order made by a foreign court in or in connection with the divorce proceedings must be taken into account.

The court can award interim periodical allowance where it appears that an order for financial provision is likely to be made and the court considers that such an interim award is necessary to avoid hardship to the applicant.

In the case of Agbaje v Agbaje [2010] UKSC 13, which is persuasive in Scotland but not binding, to establish a substantial connection with Scotland, it is not necessary to have lived in Scotland for the length of the marriage. It can be established even where the parties spent the majority of their married life in a different country, provided that there are other factors that point to a substantial connection with Scotland. In addition, in determining the level of financial provision, the court will not necessarily "top-up" the award in order for it to be in line with what the Scottish court would have ordered. However, the court need not merely make an award to the minimum extent necessary to remedy the injustice.

 

Children

Custody/parental responsibility

17. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?

The relevant legal term in Scotland is "residence". Mothers and married fathers have automatic parental responsibilities and rights (section 3, Children (Scotland) Act 1995 (1995 Act)). Unmarried fathers can acquire parental responsibilities and rights by entering into an agreement with the mother or by application to the court. Regarding children born on or after 4 May 2006, fathers who register the birth jointly with the mother will also acquire parental responsibilities and rights.

Parental rights include the right to have the child living with the parent and to control, direct or guide the child's upbringing. Parental responsibilities include safeguarding and promoting the child's health, development and welfare.

Each parent with parental responsibilities and rights has the same right to have their child living with them. Following the breakdown of a relationship, parents may agree that one parent will have residence of the child and the other will have contact. Mediation is the preferred forum in which to discuss such matters should the parties require assistance in making arrangements for their children following separation. Otherwise, the court can grant a residence order under section 11 of the 1995 Act. A series of child welfare hearings will consider the issues in any particular case.

In considering whether or not to make an order and what order to make, the court must regard the welfare of the child concerned as the paramount consideration and not make any order unless it considers that it would be better for the child that the order be made than that none be made at all. Taking account of the child's age and maturity, the court must give him an opportunity to express a view. A child aged 12 or more is presumed competent to express a view.

 
18. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?

The relevant legal term in Scotland is "contact". Many parents are able to agree contact, failing which the non-resident parent can apply to the court for a contact order. The same principles must be considered by the court in determining the granting of a contact order as are considered in determining the granting of a residence order (that is, the welfare of the child is paramount and the principle of non-intervention applies) (see Question 17). Shared care arrangements are becoming increasingly common, whereby parents agree a regime in which the child spends broadly equal amounts of time with each parent.

International abduction

19. What is the legal position on international abduction?

Hague Convention and EU cases

Hague Convention cases. The Hague Convention on the Civil Aspects of International Child Abduction 1980 governs cases of child abduction between contracting states and its object in such cases is "to secure the prompt return of children wrongfully removed to or retained in any contracting state". The main concern is not the welfare of the child but the return of the child to the country of its habitual residence so that the courts of that country can decide on a dispute over the child. The implementing legislation is the Child Abduction and Custody Act 1985.

Where it is thought that a child has been wrongfully removed to or retained in Scotland, an application for his or her return can be made to either the central authority within the contracting state of the child's habitual residence or directly to the central authority in Scotland, which is the Scottish Executive Justice Department (Civil and International Division) (SEJD) on behalf of the Secretary of State. The central authorities, in securing the prompt return of the child, must take appropriate measures, for example, to discover the whereabouts of the child and initiate or facilitate proceedings with a view to the return of the child (the appropriate court in Scotland in which to bring these proceedings is the Court of Session) (Article 7, Hague Convention).

However, voluntary return of the child is also envisaged. A retention or removal is wrongful where it is in breach of custody rights under the law of the contracting state in which the child was habitually resident immediately before the removal or retention (Article 3, Hague Convention). Therefore, it is necessary that an explanation of the law, in relation to custody rights of the contracting state in which the child was habitually resident, is produced to the Court of Session. In BJZ Petitioner, Lady Smith, 2009 CSOH 136 (16 September 2009), the court refused to return the child because the institution presenting the petition did not provide sufficient evidence of their custody rights over the child under Dutch law. A further qualification for the removal or retention to be wrongful is that the custody rights must have been actually exercised, or would have been exercised by the person with such custody rights but for the removal or retention, at the time of the removal (Article 3, Hague Convention).

Where proceedings have been brought, the default position is that the child must be returned forthwith where it has been less than one year since the wrongful removal or retention. However, where the period of one year has expired, the Scottish court must order the return unless the child is settled in Scotland (Article 12, Hague Convention).

Additionally, where there is a grave risk that the return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation, then the child need not be returned (Article 13, Hague Convention). Similarly, the court does not have to order the return where the child objects and he or she is of sufficient age and maturity, such that it is appropriate to take his or her views into consideration. In the case of Urness v Minto (1994) SLT 988, which took both of these issues into account, the court took the child's views into account and allowed the child to stay in Scotland. However, the court also ordered that the younger brother, whose views could not be taken into account, also stay in Scotland on the basis that ordering his return to the US without both his brother and mother would place the child in an intolerable situation.

EU cases. Where a child has been taken from a member state (except Denmark) to Scotland, further provisions must be applied. The European Convention on Custody of Children applies where a child is brought from a contracting state of the European Convention that is not a party to the Hague Convention or Brussels II bis Revised. Its main purpose is the recognition and enforcement of decisions relating to custody. However, for such an order to be recognised and enforced in Scotland, it must be registered in the Court of Session. The Court can refuse to recognise the order under specific grounds (sections 15 and 16, Child Abduction and Custody Act 1985). The Court of Session can enforce the order as if it had made the order and had jurisdiction to do so (section 18, Child Abduction and Custody Act 1985).

Non-Brussels/Hague cases

Where a child has been brought to Scotland from a country other than those within the UK or the Isle of Man and which is not a signatory to the Brussels Regulation or the Hague Convention, the Scottish courts must recognise an order in relation to parental responsibilities or rights granted by that country, as long as it is the country in which the child was habitually resident (section 26, Family Law Act 1986 (1986 Act)).

There is also a Pakistan protocol of 17 January 2003, between members of the judiciary in the UK and Pakistan, to the effect that judges should not exercise jurisdiction over a child who is habitually resident in the other country unless it is necessary in order for the court to make a ruling on the return of the child to its habitual residence. It is specifically stated that the welfare of the child is best determined by the courts of the country of the child's habitual residence.

Leave to remove/applications to take a child out of the jurisdiction

20. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?

Section 2 of the Children (Scotland) Act 1995 (1995 Act) provides that a child habitually resident in Scotland cannot be removed from, or retained outside, the UK without the consent of a person who has, and is exercising, a right of residence or contact over the child. However, where both parents have such rights, one cannot provide such consent alone to the removal or retention of the child and defeating the other parent's rights; the consent of the other parent is required in order to lawfully remove the child from, or retain it outside, the UK.

A parent can bring proceedings in respect of his or her child in relation to parental rights (section 11, 1995 Act). Therefore, a parent could seek a specific issue order or a residence order from the court allowing him or her to remove the child from the UK. The court can grant such orders even where the other parent refuses to provide their consent. In making its decision the court must, as with all orders relating to children, have the welfare of the child as its paramount consideration. Further, the court must not make an order unless it considers that it would be better for the child that it be made than that none be made at all. The court must also have regard to the child's views where that child is of sufficient age and maturity for these views to be taken into account and where that child wishes to express a view (section 11(7), 1995 Act).

Under section 6 of the Child Abduction Act 1984, a person commits an offence if he or she takes or sends the child out of the UK without the appropriate consent if there is:

  • An order of a court in the UK awarding custody to any person.

  • An order of a court in England and Wales or Northern Ireland making the child a ward of court.

  • An order of a court in the UK prohibiting the removal of the child from the UK or any part of it.

The appropriate consent can be provided by leave of the court.

 

Surrogacy and adoption

Surrogacy agreements

21. What is the legal position on surrogacy agreements?

Under section 27 of the Human Fertilisation and Embryology Act 1990, a woman who has carried a child as a result of the placing in her of an embryo or sperm and eggs, is to be treated as the mother of the child, regardless of her biological relationship to the child. Therefore, any surrogacy agreement that has been entered into will have no effect on her having full parental responsibilities and rights, including the right to have the child living with her. Surrogacy agreements are not enforceable in court, and a surrogate can only receive reasonable expenses.

Adoption

22. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?

The law on adoption is governed by the Adoption and Children (Scotland) Act 2007. Individuals, married couples, civil partners and persons who are living together as if husband and wife or civil partners in an enduring family relationship, aged 21 or over, can apply for an adoption order by submitting an adoption petition to the court. Where the child has been placed with the adopters by an adoption agency, or the adopters are related to the child, the child must have been living with the adopters for at least 13 weeks before lodging the adoption petition. The birth parents must consent to the adoption, or the court must be satisfied that their consent should be dispensed with on one of the grounds set out in the 2007 Act (for example, that the welfare of the child requires consent to be dispensed with).

Where a child is older than 12, the child's consent is also required.

Parental responsibilities and rights are transferred to the adoptive parents if the petition is granted.

 

Cohabitation

Cohabitation

23. What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?

Sections 25 to 29 of the Family Law (Scotland) Act 2006 (2006 Act) govern the breakdown of relationships of unmarried couples. The provisions cover heterosexual couples who are (or were) living together as if they were husband and wife and persons of the same sex who are (or were) living together as if they were civil partners.

However, there are other factors that the court must take into account in deciding whether the couple are, or were, cohabiting. These are:

  • How long they have been living together (or lived together).

  • The nature of their relationship during that period.

  • The nature and extent of any financial arrangements subsisting, or which subsisted, during that period.

Therefore, it is not entirely clear who will fall within the definition and this will be very much a matter for the courts.

When a cohabiting couple separate, the court can order, on the application of one of the parties, that a capital sum be paid from the defender (respondent) to the applicant, or that an amount is to be paid by the defender to the applicant in respect of the economic burden of caring for their child or children (section 28, 2006 Act). In deciding whether to make such an award, the court must take into account any economic advantage to the defender by reason of the applicant's contributions and any disadvantage suffered by the applicant in the interests of the defender or any child of the family. The economic advantages and disadvantages of both parties must then be balanced against each other. In addition, and crucially, the application must be made to the court within one year of separation. The leading case brought under this piece of legislation, Gow v Grant [2012] UKSC 29, was appealed to the Supreme Court on 24 May 2012. However, the law is still very much evolving in this field.

 

Family dispute resolution

Mediation, collaborative law and arbitration

24. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through mediation, collaborative law and arbitration?

Non-court-based processes available in Scotland include negotiation, mediation, collaborative law and arbitration. Any agreement signed by the parties and registered in the Books of Council and Session, whether reached by way of mediation, collaborative law or other means, has the same status as a court order in relation to financial issues. In the case of arbitration, the parties agree to be bound by the decision of the arbiter, but the decision on a point of law can be sent to the Court of Session.

 
25. What is the statutory basis (if any), for mediation, collaborative law and arbitration?

There is no statutory basis for mediation or collaborative law in Scotland. Arbitration is governed by the Arbitration (Scotland) Act 2010. If all that is stipulated in an agreement is that the parties will go to arbitration, then all of the Scottish Arbitration Rules set out in the 2010 Act will apply.

There are, however, mandatory rules that trump provisions in the agreement, and default rules that do not. It is not possible for an arbiter to grant divorce. There is no requirement for the parties to attempt a family dispute resolution in advance of proceedings.

 

Civil partnership/same-sex marriage

26. What is the status of civil partnership/same-sex marriage? What legislation governs civil partnership/same-sex marriage?

Civil partnership

Scotland has recognised civil partnerships since 5 December 2005. Part 3 of the Civil Partnership Act 2004 governs civil partnerships in Scotland. Anyone over the age of 16 and who is single can enter into a civil partnership provided the parties are not related in a forbidden degree and they are both of the same sex. Several rights stem from entering into a civil partnership, including those relating to occupying a family home, intestacy, recognition for immigration purposes and life assurance policies.

A civil partnership can be formally ended by way of dissolution, which can be brought in the Court of Session or Sheriff Court. The grounds for dissolution are irretrievable breakdown of the partnership or where an interim gender recognition certificate has been issued after the date of the civil partnership. Irretrievable breakdown is established where:

  • The couple have been separated for one year and both parties consent.

  • The couple have been separated for two years.

  • There has been unreasonable behaviour on the part of the defender.

Same-sex marriage

The Marriage and Civil Partnership (Scotland) Act 2014 (2014 Act) came into force on 16 December 2014 and allows same-sex couples to formalise their relationship as a marriage instead of a civil partnership. Therefore, Scotland now legally recognises and regulates three types of relationship for both same-sex and heterosexual couples: cohabitation, civil partnership and marriage. However, heterosexual couples are only able to cohabit or marry.

Couples who are in a "qualifying civil partnership" can convert their relationship into a marriage (Sections 8 to 11, 2014 Act). To be a qualifying civil partnership, the partnership must:

  • Have been registered in Scotland.

  • Not have been annulled, dissolved or ended by the death of one of the partners.

The effect of the conversion is to backdate the parties' marriage to the date of registration of their civil partnership. Couples in same-sex marriages who wish to divorce must establish that the marriage has broken down irretrievably as a result of one of the divorce grounds provided in the Divorce (Scotland) Act 1976. However, only sexual intercourse with a person of the opposite sex will constitute adultery (section 3A, 1976 Act). Therefore, a spouse in a same sex marriage wishing to invoke this ground will have to rely on the unreasonable behaviour of their spouse, rather than adultery.

 

Controversial areas and reform

27. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?

One area where change should be considered is the fact that spouses do not have an entitlement to share in the increase in value of non-matrimonial property during the course of the marriage. For example, if one party owns a house or shares in a private company before the marriage, and the marriage subsists for decades, there can be a very substantial increase in the value of those assets, but as these are non-matrimonial property, the non-owning spouse does not have an entitlement to share in the increase of that value. This can clearly cause anomalous results.

Secondly, under section 9 of the Marriage and Civil Partnership (Scotland) Act 2014, the Scottish Ministers are authorised to modify the definition of a "qualifying civil partnership" in relation to parties wishing to convert their relationship into a marriage (see Question 26, Same-sex marriage). Ministers are currently consulting on this and it is hoped that a change will be adopted. Under the current position, only couples who registered their civil partnership in Scotland are allowed to convert their relationship into a marriage. This means that a Scottish couple who chose to register their civil partnership elsewhere in the UK, or in another country, cannot convert their relationship into a marriage in Scotland, unless they first dissolve their civil partnership. This may result in capital assets being excluded for calculating the matrimonial property on divorce, as only matrimonial property acquired between the parties from the date of their marriage to the date of their separation are taken into account. In contrast, on divorce of a couple who registered their civil partnership in Scotland and then chose to marry in Scotland, the date of the marriage for matrimonial property purposes is the date when their civil partnership was first registered.

The main intention behind the provision above is presumably to prevent "marriage tourism" in Scotland (that is, preventing foreign same-sex couples coming to Scotland to marry because the law of their home country does not recognise same-sex marriage). However, it is clear that in its current state, the legislation could lead to anomalous results on divorce, and may also raise issues regarding the foreign recognition of marriages/divorces between Scotland and other countries.

 

Online resources

UK Child Maintenance Service

W www.gov.uk/child-maintenance/overview

Description. Information on the Child Maintenance Service from the UK Government website.



Contributor profile

Alasdair Loudon, Partner

Turcan Connell

T +44 (0)131 228 8111
F +44 (0)131 228 8118
E alasdair.loudon@turcanconnell.com
W www.turcanconnell.com

Professional qualifications. LLB, University of Dundee, 1978

Areas of practice. All aspects of family law: prenuptial, postnuptial and cohabitation agreements; divorce; conduct of proceedings in the Court of Session and Sheriff Court throughout Scotland; specialist in negotiation of financial settlements; child law issues including residential, contact and relocation; particular experience in dealing with business valuations; share-option schemes; pension schemes.

Languages. English

Professional associations/memberships. Edinburgh Bar Association (past president); Family Law Association; International Academy of Matrimonial Lawyers; WS Society; former member of Sheriff Court Rules Council for Scotland; Fellow of the International Academy of Matrimonial Lawyers; Family Law Arbitration Group Scotland (FLAGs) accredited arbitrator.

Publications. Family Law Jurisdictional Comparisons; Society of Trust and Estate Practitioners.


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