“Secular, egalitarian and consumer-oriented”: Eric Clive and Scottish family law

Hector MacQueen

Some personal recollections

¡  Scots Law I 1974 – persons and family law lectured by Dr Clive

¡  My Scots Law I tutor 1974-75 – Dr Clive (contract and delict as well as family law)

¡  Scots Law II 1976 (defamation and unjustified enrichment)

¡  1976-77 – Dr Clive’s Family Law Honours course

¡  1979-80 – Professor Clive as my departmental head in Scots Law

Husband and Wife (SULI, 1974)

¡  Took work over from Sheriff J G Wilson on latter’s death on 28 Sept 1968.

¡  Eric wrote chapters 1 (apart from section on Canon law), 2, 5-15, 20-24 (apart from section of ch 23 on evidence of adultery) and 26.

¡  Dedicated to T B Smith ¡  Three more editions (1982, 1987,

1997)

The state of family law literature pre-1974

¡  Treated within general texts from Stair (1681) to Gloag & Henderson (8th edn 1968) and Walker Principles (1st edn 1970)

¡  Patrick Fraser (1817-89), Treatise on the Law of Scotland: as applicable to the Personal and Domestic Relations; comprising Husband and Wife, Parent and Child, Guardian and Ward, Master and Servant, and Master and Apprentice (1846); Husband and Wife (2 vols, 1876); Parent and Child (1866, 1906)

¡  F P Walton (1858-1948), Handbook of Husband and Wife according to the Law of Scotland (1893, 1922, 1951)

¡  T Trotter, Law of Children and Young Persons (1938)

Some 1970s context

¡  Socio-political change post-1960s ¡  1 January 1973 – UK joins the

Common Market ¡  8 June 1975 – UK referendum on

whether to remain a Member State ¡  1976-78 – the devolution Bills ¡  1978 – Scotland Act ¡  1 March 1979 – the first devolution

referendum

Independence and Devolution (1976): ‘Scottish Family Law’ by Eric Clive

The Clive Agenda for family law 1976 ¡  “One of the delights of devolution is

that it is an empty bag into which you can put the dreams of your choice. Sometimes, yielding to this temptation, I imagine a Scottish Assembly enacting a family law code which would be the envy of the western world. … I shall set out a possible programme of reform which might pave the way for such a code.”

The Clive Proposals

¡  32 numbered proposals ¡  Proposal 15 on aliment between

spouses had 8 sub-proposals (a)-(h) ¡  Proposal 20 on matrimonial property

had 3 sub-proposals (a)-(c) ¡  Proposal 9 on voidable marriages had

2 alternatives (a) or (b) ¡  Translation of 40+ proposals into law

since 1976?

UN-ENACTED PROPOSALS (SO FAR)

The un-enacted proposals (1)

¡  Proposal 1. Restrict class of relatives entitled to succeed on intestacy

¡  “The philosophy seems to be that anyone is better than the state or, put another way, that anyone is better than everyone.”

¡  SLC Reports 1990 and 2009 ¡  See Succession (Scotland) Act

2016 ss 9, 10

The un-enacted proposals (2)

¡  On succession, note also Proposal 20(b) – extend legal rights on death to heritable as well as moveable property (to protect W)

¡  Succession (Scotland) Bill 2017(?) will do this (land reform agenda) and deal with intestate succession issues more generally

¡  But not necessarily in line with recommendations in SLC Reports.

The un-enacted proposals (3)

¡  Proposal 8 - Forbidden degrees for marriage limited to biological/genetic relationships

¡  But see Marriage (S) Act 1977 – also includes affinity and adoption)

¡  Proposal 22 – ditto for incest ¡  But SLC Report 69 on Incest (1981) ¡  and Incest and Related Offences

(S) Act 1986 (consanguinity and adoption; but not affinity)

The un-enacted proposals (4)

¡  Proposal 6 - Make civil marriage the only legally effective form of marriage

¡  Proposal 9(b) - Abolish voidability of marriages (only grounds permanent and incurable impotency) (see SLC Report 135 (1992) rec 49, un-implemented)

¡  Void marriages defined by Family Law (S) Act 2006 s.2

The un-enacted proposals (5)

¡  Proposal 24 - Abolish judicial separation

¡  Proposal 25 - Allow divorce at request of one party only – no need to show irretrievable breakdown

¡  Proposal 26 - Remove divorce from the courts apart from child custody, financial provision, or property

The un-enacted proposals (6)

¡  Proposal 21 – “Rationalise the law on evidence by one spouse for or against the other in civil or criminal proceedings. At present it is a confused mass of rules resting on no clear principle but placing undue emphasis on the legal tie of marriage, irrespective of the factual nature of the relationship.”

¡  See Ross and Chalmers, Walkers on Evidence (4th edn 2015) 13.7-13.10 for the unreformed law.

PRE(?)-ERIC/SLC REFORMS

Marriage

¡  Marriage (Scotland) Act 1977 (enacted 26 May, in force 1 Jan 1978) (see Proposal 4)

¡  Implemented Kilbrandon Report on Marriage Law (1969)

¡  But Eric’s Michigan SJD thesis (1967) was on reform of the Scots law of marriage

¡  and several articles by Eric on marriage 1968-69; plus 1974 book

Divorce ¡  Proposal 25 above (divorce on request)

written before enactment on 22 July of Divorce (Scotland) Act 1976 (in force 1 Sept)

¡  ‘Irretrievable breakdown’ but on 5 grounds only - “Divorce as Abracadabra”

¡  In particular 2 years’ separation with mutual consent; 5 without.

¡  SLC Report on Reform of Ground for Divorce (1989) – not quite as radical as the Proposal (or the DP) – 1 year and 2.

¡  Family Law (S) Act 2006 ss.11-15

Matrimonial homes

¡  Proposal 20(a) – “at the very least the law should .. confer rights on the non-owning or non-tenant spouse as against the other spouse to occupy and use the matrimonial home and furniture”

¡  SLC Report 60 (1980) Occupancy Rights in the Matrimonial Home and Domestic Violence; SLC Report 135 (1992) Family Law

¡  Matrimonial Homes (Family Protection) (S) Act 1981 as amended

ERIC’S SCOTTISH LAW COMMISSION ERA 1981-1999

The wider family: aliment

¡  Proposal 2 - Confine alimentary obligations to the nuclear family

¡  SLC Report 67 on Aliment and Financial Provision(1981)

¡  Family Law (Scotland) Act 1985 ss.1-7 as amended – spouses/civil partners; parent-child (including accepted as of family) until child reaches majority or 25 if undergoing education/training; not child-parent.

Aliment between husband and wife

¡  Proposal 15 – fully reciprocal; between consensually separated or cohabiting spouses; conduct irrelevant; take account of households; court power to vary agreements; improve enforcement.

¡  SLC Report 67 on Aliment and Financial Provision(1981)

¡  Family Law (Scotland) Act 1985 ss.1-7

Matrimonial property

¡  Proposal 20(c) – “direct courts dealing with the property consequences of divorce to begin with the assumption that each spouse has a one-half interest in all property acquired by either during the marriage”

¡  SLC Report 86 (1984) on Matrimonial Property

¡  Family Law (S) Act 1985 ss 24-26

Financial provision on divorce ¡  Proposal 26 – “It should be made clear

that the objective … is the equitable termination of a dead relationship, not the punishment of guilt or the imposition of a continuing obligation of support”

¡  SLC Report 67 on Aliment and Financial Provision(1981)

¡  Family Law (Scotland) Act 1985 ss.8-17

¡  Also applies to void marriages (s.17) (Proposal 10).

Outdated rules for husbands and wives ¡  Proposals 3 (breach of promise of

marriage), 13 (H chooses matrimonial home), 14 (action of adherence), 16 (H curator of minor W), 17 (W’s praepositura), 18 (H liable for W’s pre-nuptial debts), 19 (damages for enticement of spouse) – abolish the lot

¡  SLC Report 76 (1983) on Outdated Rules in Law of Husband and Wife

¡  Law Reform (Husband and Wife) (S) Act 1984

Abolition of illegitimacy: ‘goodbye, bastards’

¡  Proposal 29 ¡  SLC Report 82 on Illegitimacy

(1984) ¡  Law Reform (Parent and Child)

(S) Act 1986 ¡  SLC Report 135 on Family Law

(1992) ¡  Family Law (S) Act 2006 s.21

Marriage by cohabitation with habit and repute ¡  Proposal 7 – “Abolish marriage by

cohabitation with habit and repute, which is riddled with dishonesty and uncertainty, and replace it by statutory provisions … on the effects of de facto unions”

¡  SLC Report SLC Report 135 on Family Law (1992)

¡  Family Law (S) Act 2006 ss.3, 25-31

Evidence ¡  Proposal 27. “Regulate the use of blood tests in

proving parentage” ¡  SLC Report 120 on Evidence: Blood Group Tests,

DNA Tests and Related Matters (1989) (recommendation 5)

¡  Law Reform (Parent and Child) (S) Act 1986 s.6; Law Reform (MP) (S) Act 1990 s.70

¡  Proposal 28. “Make it possible to rebut the presumption that the husband is the father of his wife’s child by proof that on a balance of probabilities he is not” (instead of beyond reasonable doubt)

¡  SLC Report 82 on Illegitimacy (1984) ¡  Law Reform (Parent and Child) (S) Act 1986 s.

5

Children’s rights and protection

¡  Several articles by Eric on child protection 1973-76

¡  Proposal 31 – “Clarify the respective roles of the courts and the local authorities in relation to children.”

¡  SLC Report 135 on Family Law (1992) dealt with private law and courts

¡  Scottish Office Scotland’s Children (1993) on the public law side

¡  Children (S) Act 1995 combines

Surgery/medical treatment of child ¡  Proposal 32 – “the consent of a parent or

guardian should generally be required until the age of 16, with an exception for emergencies and an express dispensing power in the sheriff court”

¡  SLC Report 110 (1987) on Legal Capacity and Responsibility of Minors and Pupils

¡  Age of Legal Capacity (S) Act 1992 s.2(4) (“person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment.”)

International private law

¡  Proposal 11 - “Clarify and improve the law on recognition of foreign marriages and foreign judgments relating to the existence or validity of marriages.”

¡  Joint Reports [SLC 72] on Financial Provision after Foreign Divorce (1982);[88] on Recognition of Foreign Nullity Decrees and Related Matters (1984);[91] on Custody of Children: Jurisdiction and Enforcement within the UK (1985); [95] on Capacity to Contract a Polygamous Marriage (1985); [105] on Choice of Law Rules in Marriage (1987)

¡  Matrimonial and Family Proceedings Act 1984; Family Law Act 1986; Foreign Marriage (Amendment) Act 1988; Private International Law (MP) Act 1995

REFORM BY THE COURTS (!) – PERHAPS ‘CLARIFICATION’?

Marital rape

¡  Proposal 23 – “make it clear that there is no rule that a husband cannot be guilty of raping his wife”

¡  S v HM Advocate 1989 SLT 469 ¡  “We also observe that a 20th century commentator

on the criminal law of Scotland is equally unimpressed by the fiction of implied consent in modern times, and finds no reason for treating it as an irrebuttable presumption (Gordon's Criminal Law (2nd ed.), pp. 888 and 889).” (at 474)

CLOSING REMARKS

Topics not the subject of proposals in 1976 ¡  No detailed proposal on cohabitation (but abolition

of MCHR left gap to fill; also, query whether to extend matrimonial home and property regimes to “de facto wife”?).

¡  See however SLC Report 135 on Family Law (1992), and Family Law (S) Act 2006 ss.25-31.

¡  No proposals on same sex relationships and status (and note holding position at para 8.5 of Report 135 in 1992)

¡  But in 1976: “Does marriage involve the conferment of a special status on those who intend to enter into a long-term, affectionate, cohabiting relationship? If so, why should two homosexuals, or a brother and sister who do not wish to have children not be allowed to marry?”

The way paved for a code of child and family law?

¡  Scheme set out in SLC Report 135 on Family Law (1992) para 19.4

¡  Proposed to use consolidation method after further reforms achieved

¡  Still achievable? Most of the statutory building blocks still, or now, in place.

¡  Same sex relationship legislation could be incorporated

A family law review?

¡  Scottish Parliament Justice Committee post-legislative review of Family Law (S) Act 2006, concluded March 2016.

¡  Issues about cohabitation rules and father’s position in law and reality

¡  “Changes to the law piecemeal, may lack coherency and purpose” (!!!!!!)

¡  May need “wholesale review, focussed as much on how the law is applied, and the mechanism used to resolve disputes, as on what the law says” (Christine Graham MSP)

Thank you!