The Bill for this Act of the Scottish Parliament was passed by the Parliament on 15th December 2005 and received Royal Assent on 20th January 2006
An Act of the Scottish Parliament to amend the law in relation to marriage, divorce and the jurisdiction of the courts in certain consistorial actions; to amend the Matrimonial Homes (Family Protection) (Scotland) Act 1981; to amend the law relating to the domicile of persons who are under 16 years of age; to make further provision as respects responsibilities and rights in relation to children; to make provision conferring rights in relation to property, succession and claims in damages for persons living, or having lived, together as if husband and wife or civil partners; to amend Part 3 of the Civil Partnership Act 2004; to make further provision in relation to persons entitled to damages under the Damages (Scotland) Act 1976; to make provision in relation to certain rules of private international law relating to family law; to make incompetent actions for declarator of freedom and putting to silence; and for connected purposes.
Marriage to parent of former spouse: removal of special requirements
In the Marriage (Scotland) Act 1977 (c. 15)—
(a)
in section 2 (marriage of related persons)—
(i)
in subsection (1), for “subsections (1A) and (1B)” there shall be substituted “subsection (1A)”; and
(ii)
subsection (1B) shall be repealed; and
(b)
in Schedule 1 (relationships by affinity referred to in section 2(1B)), paragraph 2A shall be repealed.
2-
Void marriages
After section 20 of the Marriage (Scotland) Act 1977 (c. 15) there shall be inserted—
“Void marriages
20A
Grounds on which marriage void
(1)
Where subsection (2) or (3) applies in relation to a marriage solemnised in Scotland, the marriage shall be void.
(2)
This subsection applies if at the time of the marriage ceremony a party to the marriage who was capable of consenting to the marriage purported to give consent but did so by reason only of duress or error.
(3)
This subsection applies if at the time of the marriage ceremony a party to the marriage was incapable of—
(a)
understanding the nature of marriage; and
(b)
consenting to the marriage.
(4)
If a party to a marriage purported to give consent to the marriage other than by reason only of duress or error, the marriage shall not be void by reason only of that party’s having tacitly withheld consent to the marriage at the time when it was solemnised.
(5)
In this section “error” means—
(a)
error as to the nature of the ceremony; or
(b)
a mistaken belief held by a person (“A”) that the other party at the ceremony with whom A purported to enter into a marriage was the person whom A had agreed to marry.”.
3-
Abolition of marriage by cohabitation with habit and repute
(1)
The rule of law by which marriage may be constituted by cohabitation with habit and repute shall cease to have effect.
(2)
Nothing in subsection (1) shall affect the application of the rule in relation to cohabitation with habit and repute where the cohabitation with habit and repute—
(a)
ended before the commencement of this section (“commencement”);
(b)
began before, but ended after, commencement; or
(c)
began before, and continues after, commencement.
(3)
Nothing in subsection (1) shall affect the application of the rule in relation to cohabitation with habit and repute where—
(a)
the cohabitation with habit and repute began after commencement; and
(b)
the conditions in subsection (4) are met.
(4)
Those conditions are—
(a)
that the cohabitation with habit and repute was between two persons, one of whom, (“A”), is domiciled in Scotland;
(b)
that the person with whom A was cohabiting, (“B”), died domiciled in Scotland;
(c)
that, before the cohabitation with habit and repute began, A and B purported to enter into a marriage (“the purported marriage”) outwith the United Kingdom;
(d)
that, in consequence of the purported marriage, A and B believed themselves to be married to each other and continued in that belief until B’s death;
(e)
that the purported marriage was invalid under the law of the place where the purported marriage was entered into; and
(f)
that A became aware of the invalidity of the purported marriage only after B’s death.
4-
Extension of jurisdiction of sheriff
In subsection (1) of section 5 of the Sheriff Courts (Scotland) Act 1907 (c. 51) (extension of jurisdiction), the words “(except declarators of marriage or nullity of marriage)” shall be repealed.
Matrimonial homes
5-
Occupancy rights: duration
In section 1 of the 1981 Act (right of spouse without title to occupy matrimonial home), after subsection (6) there shall be added—
"(7)
Subject to subsection (5), if—
(a)
there has been no cohabitation between an entitled spouse and a non-entitled spouse during a continuous period of two years; and
(b)
during that period the non-entitled spouse has not occupied the matrimonial home,
the non-entitled spouse shall, on the expiry of that period, cease to have occupancy rights in the matrimonial home.
(8)
A non-entitled spouse who has ceased to have occupancy rights by virtue of subsection (7) may not apply to the court for an order under section 3(1).”.
6-
Occupancy rights: dealings with third parties
(1)
Section 6 of the 1981 Act (continued exercise of occupancy rights after dealing) shall be amended in accordance with subsections (2) and (3).
(2)
After subsection (1), there shall be inserted—
"(1A)
The occupancy rights of a non-entitled spouse in relation to a matrimonial home shall not be exercisable in relation to the home where, following a dealing of the entitled spouse relating to the home—
(a)
a person acquires the home, or an interest in it, in good faith and for value from a person other than the person who is or, as the case may be, was the entitled spouse; or
(b)
a person derives title to the home from a person who acquired title as mentioned in paragraph (a).”.
(3)
In subsection (3)—
(a)
in paragraph (e)—
(i)
for “sale”, where it first occurs, there shall be substituted “transfer for value”; and
(ii)
for the words from “seller”, where it first occurs, to the end of the paragraph there shall be substituted “transferor—
(i)
a written declaration signed by the transferor, or a person acting on behalf of the transferor under a power of attorney or as a guardian (within the meaning of the Adults with Incapacity (Scotland) Act 2000 (asp 4)), that the subjects of the transfer are not, or were not at the time of the dealing, a matrimonial home in relation to which a spouse of the transferor has or had occupancy rights; or
(ii)
a renunciation of occupancy rights or consent to the dealing which bears to have been properly made or given by the non-entitled spouse or a person acting on behalf of the non-entitled spouse under a power of attorney or as a guardian (within the meaning of the Adults with Incapacity (Scotland) Act 2000 (asp 4)).”; and
(b)
in paragraph (f), for “5” there shall be substituted “2”.
7-
Occupancy rights: proposed dealings with third parties
In section 7 of the 1981 Act (court’s power to dispense with spouse’s consent to dealing and proposed dealing)—
(a)
in subsection (1), at the beginning there shall be inserted “Subject to subsections (1A) to (1D) below,”;
(b)
after that subsection there shall be inserted—
"(1A)
Subsection (1B) applies if, in relation to a proposed sale—
(a)
negotiations with a third party have not begun; or
(b)
negotiations have begun but a price has not been agreed.
(1B)
An order under subsection (1) dispensing with consent may be made only if—
(a)
the price agreed for the sale is no less than such amount as the court specifies in the order; and
(b)
the contract for the sale is concluded before the expiry of such period as may be so specified.
(1C)
Subsection (1D) applies if the proposed dealing is the grant of a heritable security.
(1D)
An order under subsection (1) dispensing with consent may be made only if—
(a)
the heritable security is granted for a loan of no more than such amount as the court specifies in the order; and
(b)
the security is executed before the expiry of such period as may be so specified.”; and
(c)
after subsection (3) there shall be inserted—
"(3A)
If the court refuses an application for an order under subsection (1), it may make an order requiring a non-entitled spouse who is or becomes the occupier of the matrimonial home—
(a)
to make such payments to the owner of the home in respect of that spouse’s occupation of it as may be specified in the order;
(b)
to comply with such other conditions relating to that spouse’s occupation of the matrimonial home as may be so specified.”.
8-
Occupancy rights: effect of court action
After section 9 of the 1981 Act (provisions where both spouses have title) there shall be inserted—
“Reckoning of non-cohabitation periods in sections 1 and 6
9A
Effect of court action under section 3, 4 or 5 on reckoning of periods in sections 1 and 6
(1)
Subsection (2) applies where an application is made under section 3(1), 4(1) or 5(1) of this Act.
(2)
In calculating the period of two years mentioned in section 1(7)(a) or 6(3)(f) of this Act, no account shall be taken of the period mentioned in subsection (3) below.
(3)
The period is the period beginning with the date on which the application is made and—
(a)
in the case of an application under section 3(1) or 4(1) of this Act, ending on the date on which—
(i)
an order under section 3(3) or, as the case may be, 4(2) of this Act is made; or
(ii)
the application is otherwise finally determined or abandoned;
(b)
in the case of an application under section 5(1) of this Act, ending on the date on which—
(i)
the order under section 3(3) or, as the case may be, 4(2) is varied or recalled; or
(ii)
the application is otherwise finally determined or abandoned.”.
9-
Amendment of definition of “matrimonial home”
In section 22 of the 1981 Act (interpretation) (which shall become subsection (1) of that section)—
(a)
in the definition of “matrimonial home”—
(i)
after “means” there shall be inserted “subject to subsection (2),”; and
(ii)
for the words “one spouse for that” there shall be substituted “a person for one”; and
(b)
at the end there shall be inserted—
"(2)
If—
(a)
the tenancy of a matrimonial home is transferred from one spouse to the other by agreement or under any enactment; and
(b)
following the transfer, the spouse to whom the tenancy was transferred occupies the home but the other spouse does not,
the home shall, on such transfer, cease to be a matrimonial home.”.
Matrimonial interdicts
10-
Matrimonial interdicts
(1)
Section 14 of the 1981 Act (matrimonial interdicts) shall be amended in accordance with subsections (2) and (3).
(2)
For paragraph (b) of subsection (2) there shall be substituted—
"(b)
subject to subsection (3), prohibits a spouse from entering or remaining in—
(i)
a matrimonial home;
(ii)
any other residence occupied by the applicant spouse;
(iii)
any place of work of the applicant spouse;
(iv)
any school attended by a child in the permanent or temporary care of the applicant spouse.”.
(3)
After subsection (2) there shall be added—
"(3)
Subsection (4) applies if in relation to a matrimonial home the non-applicant spouse—
(a)
is an entitled spouse; or
(b)
has occupancy rights.
(4)
Except where subsection (5) applies, the court may not grant a matrimonial interdict prohibiting the non-applicant spouse from entering or remaining in the matrimonial home.
(5)
This subsection applies if—
(a)
the interdict is ancillary to an exclusion order; or
(b)
by virtue of section 1(3), the court refuses leave to exercise occupancy rights.
(6)
In this section and in sections 15 to 17, “applicant spouse” means the spouse who has applied for the interdict; and “non-applicant spouse” shall be construed accordingly.”.
In subsection (2) of section 1 of the 1976 Act (irretrievable breakdown of marriage to be sole ground of divorce)—
(a)
in paragraph (d), for “two years” there shall be substituted “one year”; and
(b)
in paragraph (e), for “five” there shall be substituted “two”.
12-
Irretrievable breakdown of marriage: desertion no longer to be ground
Paragraph (c) of section 1(2) of the 1976 Act (irretrievable breakdown of marriage to be sole ground of divorce) shall be repealed.
13-
Non-cohabitation without consent: removal of bar to divorce
Subsection (5) of section 1 of the 1976 Act (irretrievable breakdown of marriage to be sole ground of divorce) shall be repealed.
14-
Collusion no longer to be bar to divorce
(1)
Any rule of law by which collusion between parties is a bar to their divorce shall cease to have effect.
(2)
Section 9 of the 1976 Act (abolition of the oath of calumny) shall be repealed.
15-
Postponement of decree of divorce where religious impediment to remarry exists
After section 3 of the 1976 Act (action for divorce following on decree of separation) there shall be inserted—
“3A
Postponement of decree of divorce where religious impediment to remarry exists
(1)
Notwithstanding that irretrievable breakdown of a marriage has been established in an action for divorce, the court may—
(a)
on the application of a party (“the applicant”); and
(b)
if satisfied—
(i)
that subsection (2) applies; and
(ii)
that it is just and reasonable to do so,
postpone the grant of decree in the action until it is satisfied that the other party has complied with subsection (3).
(2)
This subsection applies where—
(a)
the applicant is prevented from entering into a religious marriage by virtue of a requirement of the religion of that marriage; and
(b)
the other party can act so as to remove, or enable or contribute to the removal of, the impediment which prevents that marriage.
(3)
A party complies with this subsection by acting in the way described in subsection (2)(b).
(4)
The court may, whether or not on the application of a party and notwithstanding that subsection (2) applies, recall a postponement under subsection (1).
(5)
The court may, before recalling a postponement under subsection (1), order the other party to produce a certificate from a relevant religious body confirming that the other party has acted in the way described in subsection 2(b).
(6)
For the purposes of subsection (5), a religious body is “relevant” if the applicant considers the body competent to provide the confirmation referred to in that subsection.
(7)
In this section—
“religious marriage” means a marriage solemnised by a marriage celebrant of a prescribed religious body, and “religion of that marriage” shall be construed accordingly;
“prescribed” means prescribed by regulations made by the Scottish Ministers.
(8)
Any reference in this section to a marriage celebrant of a prescribed religious body is a reference to—
(a)
a minister, clergyman, pastor or priest of such a body;
(b)
a person who has, on the nomination of such a body, been registered under section 9 of the Marriage (Scotland) Act 1977 (c. 15) as empowered to solemnise marriages; or
(c)
any person who is recognised by such a body as entitled to solemnise marriages on its behalf.
(9)
Regulations under subsection (7) shall be made by statutory instrument; and any such instrument shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.”.
Financial provision: valuation of matrimonial property
In section 10 of the Family Law (Scotland) Act 1985 (c. 37) (which provides for the sharing of the value of matrimonial property and fixes the date of its valuation)—
(a)
in subsection (2), at the beginning there shall be inserted “Subject to subsection (3A) below,”; and
(b)
after subsection (3), there shall be inserted—
"(3A)
In its application to property transferred by virtue of an order under section 8(1)(aa) of this Act this section shall have effect as if—
(a)
in subsection (2) above, for “relevant date” there were substituted “appropriate valuation date”;
(b)
after that subsection there were inserted—
"(2A)
Subject to subsection (2B), in this section the “appropriate valuation date” means—
(a)
where the parties to the marriage or, as the case may be, the partners agree on a date, that date;
(b)
where there is no such agreement, the date of the making of the order under section 8(1)(aa).
(2B)
If the court considers that, because of the exceptional circumstances of the case, subsection (2A)(b) should not apply, the appropriate valuation date shall be such other date (being a date as near as may be to the date referred to in subsection (2A)(b)) as the court may determine.”; and
