This spring an actress will marry a prince when Meghan Markle says “I do” to Prince Harry at St Georges Chapel in Windsor. Clearly, the wedding is generating huge media interest. The last time a glamorous actress married a prince it was dubbed the event of the century. Over 30 million people watched as Grace Kelly married Prince Rainier of Monaco in 1956. It was the first event in modern times to generate such a huge level of media interest.
Jen Gallagher, Partner in our Family Law team reflects on the difference between legislation in 1956 surrounding relationships and families compared to now in 2018.
Scottish laws reflecting the time
The world was a very different place in 1956 and family law in Scotland was very different too. It was not until 1980 that couples could apply for divorce in their local sheriff court rather than coming in person to the Court of Session in Edinburgh – even if the case was uncontested. Prior to 1830 the law in Scotland was judge made rather than legislation. The law reflected the social norms of the time and in many respects the husband ruled.
Throughout the 19th and early 20th century various reforms were made to both the rules around formation of marriages and also the means of ending them. It was after extensive research that the law on financial provision was overhauled and radically altered in 1985.
Radical change in the 1980s
The main legislation dealing with financial provision on divorce in Scotland is the Family Law (Scotland) Act 1985. It marked a real change in the approach taken in Scotland to divorce cases. Prior to the inception of the Act, broadly speaking the whole regime turned on the discretion of the judge hearing the case. Most cases were resolved with the wife receiving a share of the assets and some sort of on-going financial support.
The Act introduced key concepts that are still working well today – over 30 years later.
The first major development in the Act was the introduction of the concept of the relevant date. This is the date when a married couple cease living together as such. It may be the date one of them moves out of the family home but it can also be established by other facts and circumstances – for example although still living together the couple no longer shares a bed, they no longer socialise together or share day to day household tasks.
The new legislation gave the relevant date real significance as it is at this date that the matrimonial property is valued for the purposes of identifying the pot for division.
It was only in 2006 that the law was updated further with the introduction of the “appropriate valuation date” in property transfers which allows parties or the court to fix a different date for valuation if property is being transferred on divorce.
The matrimonial pot
The new legislation also provided a definition of matrimonial property. Matrimonial property is everything – asset or debt acquired by a couple between the date of their marriage and the relevant date. Items acquired by inheritance or gift from third parties are excluded from this definition. The new rules also provided that a house and its contents acquired pre-marriage with a view to being used as a family home would form part of the pot. The legislation directs that there is to be a fair division and the starting point for that is that the matrimonial property should be divided equally.
This framework allows lawyers to clearly identify what the nature and extent of a particular couple’s matrimonial property might be. It means that at a fairly early stage, a clear idea about what a financial settlement will look like can be given to the client. In Scotland the blanket exclusion of inheritance is very different to the rules in other jurisdictions including the other jurisdictions in the UK.
The Scottish legislation also created the concept of a clean break financially. The ethos in Scotland is that the couple share fairly that which has been amassed during the marriage and prior to the relevant date.
There are principles in the Act that allow for unequal sharing of the pot of property in favour of one of the spouses but generally the courts strive to achieve a clean break rather than on-going, regular payments. The relevant date is the cut off and there are no claims against future income or assets acquired post relevant date. Even in cases where some sort of on-going payment is needed to achieve fairness, almost always there will be a time limit on the duration of that payment.
A framework for fairness
The Scottish legislation has a detailed framework of rules but built into the system is an element of discretion. The overall goal of the legislation is achieving fairness. Accordingly, in court, a judge hearing the case still has a wide discretion to apply the rules in the Act to achieve fairness, as he or she sees it. It is for this reason that a very large number of Scottish cases involving financial provision are dealt with by agreements being made rather than in court.
The advantage to resolving the financial aspects of the case in this way is that the experienced family lawyer can work out, based on the rules in the legislation broadly what will amount to a fair settlement in a particular case. Then rather than delay and take the risk that the court may take the view a fair result looks somewhat different, a settlement can be agreed that suits both spouses and allows each person to move on emotionally and financially.
Scottish cohabitees gain legal rights
Back in 1956 there was a Royal Commission looking at marriage and divorce. Marriage rates in the UK reached a peak in the 1960s and have been steadily declining in recent years. Therefore, the idea that there would be a legal regime for cohabiting couples must have seemed as unlikely as a man ever walking on the moon.
Although not perfect, Scots can be proud that we have a regime of rights for cohabiting couples which is viewed with envy in other jurisdictions. Our rules only came into force in May 2006. The Family Law (Scotland) Act 2006 gives cohabiting couples certain rights when the relationship comes to an end.
After considerable debate, it was decided not to set a minimum duration for the relationship before the right to make a claim could arise. Rather the nature of the relationship as a whole should be looked at with the length of the relationship just being one factor.
If the relationship ends as a result of the death of the other person and that person has not made a Will, then the Act allows the surviving cohabitant to claim financial provision similar to the financial provision a spouse can claim on intestacy.
If the relationship breaks down, the legislation allows for a claim for financial compensation if one party has ended the relationship worse off than when the relationship began. The legislation is far from perfect. These claims can be hard to quantify but the right to claim exists. It is a credit to the Scottish system that changes in society have been reflected in the framework of our law.
Separating cohabitants are still subject to limited legal rights
It should be said that cohabitation cases are subject to time limits. A claim following a death must be brought into court or fully settled within 6 months of the date of death. Claims following relationship break down must be brought to court or settled within 12 months of the separation date.
It is also important to note that although the 2006 Act is innovative in many respects, it does not put a separating cohabitant into the same legal position as a separating spouse. There is no equivalent for a cohabitant of aliment (maintenance). The right to a compensatory award at the end of the relationships is not the same as sharing in the total wealth amassed during the cohabitation. There is no concept of “cohabitation property” and all the court can do in a cohabitation case is award a lump sum of money, not pension sharing or transfers of property.
Children – residence and contact replace outdated custody and access
Child law has also moved forward a great deal. Prior to the mid nineteenth century the law in relation to children was largely common law. The law recognised the parent and child relationship to only a limited extent where a child was illegitimate. For legitimate children the father primarily held the legal rights in relation to the child and although throughout the period from the mid-nineteenth century onward various statutory reforms were made to the law, broadly speaking the common law rules remained intact.
It was not until 1985 onward that significant legislative changes were made that fundamentally altered the legal framework for children in Scotland. The concept of legitimacy has been abolished. There is now a clear statutory framework for maintenance of children.
The current law is contained in the Children (Scotland) Act 1995. That Act did away with the concepts of custody and access. It replaced that terminology with concepts like residence and contact.
The parent and child relationship is based on parental rights with corresponding parental responsibilities – moving away from the idea of the child as a possession and recognising the rights of the child. The test if any court orders are being sought is whether what is being sought is in the best interests of the child. The views of the child should be ascertained if possible and if a child is over 12 there is a duty to take the child’s views into account.
The legislation also recognises that it is often best to just let families be and court orders should only be made if it is better for the child that an order be made than that no order is made.
In the past, unmarried fathers had no automatic parental rights and responsibilities in relation to a child. In 2006 the law was reformed to provide that an unmarried father, named as the father on a child’s birth certificate does have the same rights and responsibilities as the child’s mother.
The law often plays catch up to societal changes
Family law is an area of law where the effect of significant social change is felt often before the legislature and the courts have time to catch up. The law for families in Scotland is markedly different in 2018 to the law that applied when Grace Kelly wed her handsome prince in 1956.
In the run up to Prince Harry and Meghan Markle’s wedding, there will no doubt be much speculation about the ways this 21st century couple will modernise and depart from royal protocols.
It has been over 60 years since we have seen a royal wedding like this one. It is interesting to reflect on how far the law has come in that time and to wonder what the law will be like when Harry and Meghan’s children or grandchildren are walking down the aisle.
