Family Law –L1

Article 12 of the European Convention on Human Rights provides:

“Men and women of marriageable age have the right to marry and to found a family, according to the national law governing the exercise of this right”

An engagement is no longer a legally enforced contract which means no contractual remedies for breach of promise are not competent in Scottish courts. A promise or agreement to marry does not create rights or obligations in scots law and excludes delictual liability under Law Reform (Husband and Wife) (s) Act 1984

Recent developments

Marriage (S) Act 2002 – get married underwater at Deep Sea World or Edinburgh Zoo

Civil Partnership Act 2004 – so called “gay marriage” – ECHR driven

Gender Recognition Act 2004 – ECHR driven

Family Law (Scotland) Act 2006

  • Prohibited degrees relaxed slightly
  • Void marriages clarified, duress & error only, tacit reservation no bar
  • Irregular marriage abolished henceforth
  • Divorce & dissolution grounds relaxed
  • Unmarried fathers get PRRs if registered
  • s 11 Children (S) Act 1995 amended
  • Cohabitants rights much enhanced
  • Financial provision on divorce, dissolution changes

Adoption & Children (S) Act 2007

  • Reforms to
  • Adoption Support Services
  • Who may adopt
  • Grounds for dispensing with consent
  • Permanence Orders
  • 1978 Act repealed

Forced Marriage etc (P&J) (S) Act 2011 Lexis Nexis

...continue reading "Family law 101"

Dharamshi v Dharamshi2000

H, a wealthy husband appealed against an order requiring him to transfer to W, his former wife upon the dissolution of their marriage a lump sum of GBP 1.5 million together with the matrimonial home, and a motor car. H contended that although W had helped to build up the family business, the sale of which had benefited him in the sum of GBP 4.5 million, the lump sum payable to W ought to have been quantified in accordance with the conventional Duxbury tables and ought to have reflected capitalisation of W's income requirements. Finding that W's contribution to the home, family and the business had been considerable throughout the duration of the marriage, the court held that the lump sum had been intended to give her a substantial fraction of the proceeds of sale not directly related to her reasonable requirements, following the decision in White (Pamela) v White (Martin) [2000] 3 W.L.R. 1571.

Abstract: A husband, H, appealed against an order in ancillary relief proceedings which obliged him to transfer the former matrimonial home to the wife, W, to pay her a lump sum of GBP 1.05 million plus 25 per cent of the proceeds of a tax avoidance scheme, and to make periodical payments of GBP 5,000 per year for the benefit of two children of the marriage. In 1972 H had come to the UK from Uganda as a young man and had set up a business which proved to be very successful. He married W in 1985 and she left her job to help in the business. The relationship broke down in 1996 and the marriage was dissolved in 1998. H argued that the judge had erred in failing to adopt the conventional approach of calculating W's reasonable needs on the basis of the Duxbury tables.

Held, dismissing the appeal, that in accordance with the dicta in White (Pamela) v White (Martin) [1999] Fam. 304, calculation of a wife's reasonable income requirements was no longer the basis for calculating the award but merely one of several factors. In the instant case, as there were more assets than were required for the parties' basic needs, the correct test was to aim for equality without regard to gender, and W's contribution as homemaker had to be ranked as highly as her contribution to the business. On that basis the judge's approach, whereby he had sought to give W a substantial proportion of the proceeds of sale of H's company, had been fully justified, White applied.
...continue reading "part 3"

Tyrrell v Tyrrell 1989

the Family Law (Scotland) Act 1985 that the valuation of matrimonial property was at the date of separation; there was no question of there being any contribution by the pursuer to the value of the pension after the date of separation and it should therefore be valued as at that date and (3) there was no likelihood of serious financial hardship to the pursuer but for the purposes of s.9(1)(d) of the 1985 Act she was dependent to a material degree on the financial support of the defender and it was appropriate that periodical allowance should be continued at the rate at which aliment had latterly been paid but for a period of one year only, it having been seven years since separation, allowing the pursuer ample time to adjust; and decree for payment of capital sum and periodical allowance pronounced accordingly.

Coyle v Coyle 2003

W raised an action of divorce against H on the ground of five years' separation. She sought payment of a capital sum, periodical allowance and property transfer orders in respect of the matrimonial home and a holiday home. The parties had married in 1975 and W had given up a promising career with an airline company to look after the home and raise the children. H worked in a family business, eventually becoming a director, and owned a majority shareholding in the company by the time the parties separated in 1995. W claimed that the net increase in the value of H's business interests from the date of marriage to the date of separation was GBP 399,000 and argued that she should be entitled to half that increase in addition to half the net value of the matrimonial property on the basis that the increase in value had only been possible as a result of her contribution to the marriage. She also claimed a further GBP 480,000 on the basis that she had suffered economic disadvantage as a result of not pursuing her career. She sought to justify that sum by calculating the amount of compensation due, by reference to the Ogden Tables, had she been claiming for future loss of earnings and pension rights in an action for damages for personal injuries.

...continue reading "Family negations exercise part 2"