The Family Law (Scotland) Act and 2006 is structured with several points, the main four points of this act being; Divorce, Civil Partners, Co-habitees and Gender Recognition. These four points are going to be covered and analysed throughout this report. This report will widen understanding of family law and the different aspects that come under the act. Divorce Divorce and how the legal position of the 1996 act has altered and changed by the 2006 act, also the Divorce Scotland Act 1976. This will detail how the process of divorce has changed over the years.
It will also show the statistics of the failures of divorce, and the stats show how common breakdown within couples happens. All together divorce is 76% of Family Law Act . In 1976, The Divorce Scotland Act was passed by parliament. The act was to show understanding and compromise of the parties involved and to amend the law as to the power of the court to make orders relating to financial provisions of the outcome of the divorce and to settlements and other dealings by a party to the marriage, and any aliment due. First of all the marriage has to be ‘broken down irretrievably’.
This can be proven by either; adultery, that the defender has behaved in such a way that the pursuer isn’t expected to cohabit with the defender, that the defender has undoubtedly deserted (no living together, and the purser hasn’t refused an reasonable offer from the defender) the purser, and no cohabitation within two years after the date of marriage with consent or five years without. This can be any one of any mentioned. With the 1976 act there was also a new way to get divorce cheap, quick and easy. The couple concerned had to be separated for two years without consent and 1 year with consent.
There were certain requirements that needed to be met of course. These being; no children under the age of 16, no financial considerations, no mental disorder, no other proceedings and jurisdiction to carry out the divorce. The timescale for this procedure is 6-8 weeks costing as little as a one off payment of ? 120 (this changes every so often) to the court. In 1996, the Family Law Scotland Act was passed by Parliament. This was passed mainly to reduce divorce or, if divorce was the only option – it was made so that the process of divorce more peaceful .
The act is made up of Divorce and Separation, legal aid for mediation in family matters, family homes and domestic violence and forced marriages. For the purpose of this report, forced marriage will not be taken into consideration. This act was based on the 1976 rules on divorce and the accepted reasoning for divorce.
The principles of the 1996 act are as follows; – if a marriage which may have broken down are to be encouraged to take all realistic steps to save the marriage, by marriage counselling or any other practical method. if a marriage which has irretrievably broken down and is being brought to an end should be brought to an end with minimum distress to the parties and to the children affected; – with questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances; and – without costs being unreasonably incurred in connection with the procedures to be followed in bringing the marriage to an end; and ? Any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished.
If the parties decide that the marriage is no longer working and has broken down, then this application is made to the court. The court will grant the order if the parties choose either, divorce or separation under the grounds of; – The marriage has broken down irretrievably; – The requirements about information meetings are satisfied; – The requirements about the parties’ arrangements for the future are satisfied; and – The application has not been withdrawn. A divorce order may not be made if an order preventing divorce is in force.
This happens when the divorce will more than likely cause too much substantial financial or hardship to either party. As mentioned previously, the Family Law act 1996 was produced to make divorce easier (with the process and on the person), more affordable and more effective after the relationship had broken down. By using the data sheet provided by NRS Scotland , this shows that in 1990 before the legislation got passed through parliament divorce was at 12,268 percent of the population for that year alone.
When the act passed between the years of 1996-97 on average there was a total of 12,230 citizens that divorced/separated that year. 11,205, this was the number on average of divorces between the years of 1998-2005 (just before the 2006 family act passed). This shows that since the 1996 act passed, the number of divorces has slowly came down on average. It can be concluded that the 1996 act changed the divorce procedure, however there isn’t much of an impact on the outcome from these statistics shown. The family law act 2006 is the most recent legislation for family law which is in relation to marriage, divorce and jurisdiction.
Within the divorce section of this legislation, it is stipulated that “irretrievable break down” is still needed however, instead of two years with consent it has now changed to one year, much the same as five years without consent is now two years. This 2006 act has repealed the grounds for desertion within a marriage to be included in the divorce procedure. The rest of this act is much and such the same as 1996. At the time of the 2006 Act passing, divorce in Scotland was never higher coming in at 13,767 (2006-2007), however, this fairly began to shoot down to 10,173 just 3 years after the 2006 Act passed.
With the steady decrease in divorce, this shows that the 2006 act did improve the amount of divorces, however the act was meant to support the parties throughout the procedure. Overall the Divorce Scotland Act 1976 address divorce in greater detail than any other of the acts mentioned. However for the topic of this report, the 1996 Act was the foundations of the Family Acts. With it being the foundations, there was always going to room for improvement, even going off the back of the divorce act 1976. This being the foundation, set up the way 2006 was to be. Civil partners
Civil partners and how the law has changed to fit society within the way it’s grown. This will show how common law and statue law has gelled into the way society is changing by using the 2 Family Law act (1996 and 2006), also with Civil Partnership act 2004. A civil partnership is regarded as a relationship between two people of the same sex. Once the civil partnership is registered, the two parties then have the same rights and responsibilities as marriage . For this particular topic of Family Law, the 1996 act doesn’t contain civil partnership as a section, and therefore, the 2006 act can only improve on this point.
After the 1996 act has been revised, civil partners are now mentioned. This gives all rights to the matrimonial home however, it wasn’t until 8 years later that Civil Partnership weren’t regarded as having the same status as marriage. Civil Partnership Act 2004 deals with only same sex marriages. Each partnership can only be eligible if each party is over 16 years of age and is not married, or in separate partnership . There are other exceptions that can be looked at under the legislation. A Civil Partnership must be appointed by an authorised registrar.
As for marriage, the couple need to submit a registrar notice, with the fee due of their intention to enter the partnership. The couple must submit birth certificates along with this. If any party has been recently involved in dissolution of marriage or a Civil Partnership then they must include the decree of divorce. This will all be lodge in the Civil Partnership notice book. If a former spouse has changed gender (this will be covered in the later report in Gender Recognition) and the couple become the same sex, they have to enter into a Civil Partnership.
It is an offence if one party applies to enter a partnership knowing that the second party I already married with a 3rd party. Also to forge a civil partnership document, and to enter into a civil partnership if the two parties aren’t present. A party who is guilty of breaching these offence can on conviction on indictment be imprisoned for nothing exceeding 2 years or a fine (this can be both), or on summary conviction, the guilty party could be facing up to 3 months in prison or a fine .
The Family law 2006 doesn’t have a section of the act for Civil Partnerships, however it is revised on Schedule 1 of the act as amendments of Civil partners Act 2004. The 2006 act references the Civil Partnership Act as mentioned previously to give the full law on this matter. Overall the 2006 act provides more information on Civil Partnerships, as the 1996 doesn’t even have mention of the matter. This shows that society has changed, so the law changed along with it. Co-habitees (including spouses) Co-habitees and what has changed to protect co-habitees within their rights.
This section will show how being a co-habitee since the new act has changed and also how the rights have now been fully established. The statistics will also show that people feel more secure taking this role, and how people don’t feel they need other methods such as marriage to feel this security within their home. Using again the 1996 and 2004 act. Matrimonial homes (family protection) (Scotland) act 1981 would have been in interest to this section of the report however it was amended by the family law Scotland act 2006.
Family law act 1996 regards matrimonial homes when a spouse doesn’t have any estate. This applies when one spouse is entitled to occupy a dwelling house by virtue of beneficial estate, interest, or contract and or any enactment giving that spouse the right to remain in occupation. The spouse when not so entitled has the following rights; if in work, a right not to be evicted or excluded from the dwelling house or any part of it by the other spouse except with the leave granted by the court, or if not in work, a right with the leave of the court so given to enter into and occupy the dwelling house.
If a spouse is entitled to reside in a dwelling-house or any part of a dwelling-house, meets satisfactory towards any liability of the other spouse in respect of rent/mortgage payments or other outgoings affecting the dwelling-house, whether or not it is made or done in the undertaking of an order, as good as if made or done by the other spouse. if a spouse is entitled to occupy a dwelling house or part of a dwelling house by reason of an interest of the other spouse under a trust. – only so long as the marriage exists or only so long as the other spouse is entitled as mentioned previously to occupy the dwelling-house, except for those rights to be a charge on an estate or interest in the dwelling-house.