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Do Law-Makers Take Love Seriously?

February 26, 2020 Family Law

There are many different manifestations of love. Compared to other jurisdictions around the world, we can pride ourselves as Scottish law practitioners that our legal system has tried to evolve with the times and has come to terms with the many different manifestations of love, and what these all look like in society.

Marriage is a long-established, culturally recognised union between two people who make their commitment to each other. The importance of this commitment is apparent when considering the numerous rights, protections and obligations that are conferred upon married couples by the law.

Whilst marriage and the laws surrounding marriage have existed and evolved for hundreds of years, it was not until 2014 that marriage between same-sex couples was legalised in Scotland. It was the Marriage & Civil Partnership (Scotland) act 2014 that made it possible for a same-sex couple to enter into a marriage. Up until then, same-sex couples who wished to make their lasting commitment to each other had to do so by ways of registering a civil partnership, which was introduced by the Civil Partnership Act 2004.

It is interesting to note that civil partnerships between opposite sex couples is not yet possible in Scotland, in contrast to our English counterparts. This, however, is set to change. The Scottish Parliament has introduced new legislation, a Civil Partnership Bill, which will allow mixed sex couples to enter into a civil partnership.

The evolution of marriage and the creation of civil partnerships in Scotland is an example of how law makers must move with the times and identify the needs and wants of society. Similarly, the recent recognition that mixed couples may wish to make their commitment by other means than by marriage, is a positive indicator that our law makers choose to promote equality, fairness and choice.

In addition to the law in relation to marriage evolving, so has that in respect of divorce. Clearly, the law cannot obligate one spouse to remain married to the other. However, it sets down clear grounds for divorce, and establishes what must be resolved before divorce is affected. The most common ground for divorce is separation, either in excess of one year with the other spouse’s consent, to two years without such consent. Arguably, the reason for this condition of separation for at least one year, is to allow married couples to reconcile before divorce is affected should they want to. A “cooling-off period”, so to say.

The law will dictate which course of action spouses can take when considering divorce, depending on their circumstances. For instance, if the couple have children under the age of 16, the law requires them to raise an Ordinary action for Divorce. The crux of this being that the Court must be reassured that the care and welfare of any children of the marriage is and will be safeguarded upon divorce.

In contrast to married or civilly registered couples, some couples chose not to register their love and commitment to each other, for whatever reason. Two people who live together and are in a committed relationship are known as cohabitants under the law. It is in the area of cohabitation that Scotland’s legal system, compared to its English counterpart, is arguably more advanced and reflective of modern-day life.

Some argue that those who chose not to get married or civilly partnered do so because they do not want to fall within the same scope and protection that married, or civilly registered couples do. Others simply don’t believe in marriage. Whatever the reason may be, cohabitants should not have to be bound by the same laws, rights and protections as married or civilly registered couples if they chose not to be. However, it was recognised that a degree of protection was necessary for cohabiting couples, even if they do opt not to be bound by the laws of marriage or civil partnership.

The Family Law (Scotland) Act 2006 introduced protections and . Whilst these rights and protections are far less than those of married couples or civilly registered couples, the legislation itself is proof that law-makers identified the growing number of couples who chose not to get married or be civilly partnered and realised the need to recognize these couples and offer them certain rights.

Clearly, a mother has automatic parental rights and responsibilities over her child. A father will have parental rights and responsibilities over his child if he is married to the child’s mother as of the date of conception, or, where the birth is registered after 4 May 2006, he is named on the child’s birth certificate. Parental rights and responsibilities exist to, above all, promote the welfare of children. The removal of these rights and responsibilities is, arguably, one of the hardest actions to take against someone. The Courts, unless faced with compelling reasons and evidence to do so, are not easily minded to take away someone’s parental rights and responsibilities. The welfare and the best interests of the child will be the paramount consideration of the Court in such actions. The law in respect of parental rights and responsibilities exists to, above all, safeguard the welfare of children. It is therefore complex, and quite rightly so, given its importance.

The above examples should demonstrate that the law has evolved over time to better reflect and protect society. The law will no doubt continuously develop and evolve over time to reflect modern day society and, consequently, love and its different manifestations.

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