Women and family law, principally in Scotland

Pamela Clayton (Department of Adult and Continuing Education. University of Glasgow)

Contents

• Introduction
• On getting married
• On being married
• On conceiving a child
• On becoming a parent
• On being injured
• On owning or acquiring property in marriage:
• Moveable property - Money and securities - The matrimonial home - Ownership of the matrimonial home by the husband alone - Joint ownership of the matrimonial home by both spouses - Tenancy of the matrimonial home
• On the death of the husband
• On the breakdown of marriage
• Custody of any children - Residence - Domestic violence: exclusion orders - Domestic violence: interdict against molestation - Immigrant and refugee women
• On the breakdown of cohabitation
• A rider: England and Wales
• On being deserted for another woman
• On wishing to end the marriage
• On obtaining financial provision in the case of divorce
• On being a lone parent: the Child Support Act
• Conclusion
• Bibliography
• Relevant Acts of Parliament
• List of tables

Introduction

In general, it is particularly (although not exclusively) in marriage or cohabitation that women are in danger of unequal treatment in law.

In the United Kingdom, marriage no longer affects a woman’s legal status; and in recent years, and in particular in the last ten, there have been important changes in Scottish family law. It came to be recognised that formal legal equality, and in particular, the treatment of husband and wife for legal purposes as if they were not married (which was intended to obviate the disadvantages of the married state), actually gave rise to injustice to married women.

Thomson’s observation can be demonstrated by some statistics for Scotland (figures for England and Wales are also given, but there are no very startling differences).

Table 1. Economic activity, percentage, of persons aged 16 and over, by sex, in Scotland and England/Wales, Spring 1995

Source: Labour Force Survey, Spring 1995, from Equal Opportunities Commission (1996)

The main point to take from Table 1 is that married/cohabiting men are more likely than married/cohabiting women to be economically active and therefore have more access to income and wealth. There are also differences among ecomically active men and women, as Table 2 shows.

Table 2. Employment status of persons aged 16 and over, by sex, in Scotland and England/Wales, percentages, Spring 1995

Source: Labour Force Survey, Spring 1995, from Equal Opportunities Commission (1996)

Where married/cohabiting women are employed, they are far more likely than married/cohabiting men or than non-married/cohabiting women to have part-time jobs. Even where women have full-time jobs, they learn less than men on average (see Table 3).

Table 3. Average gross hourly earnings, excluding overtime, and weekly earnings, full-time employees on adult rates, by sex, 1995, female earnings as a percentage of male earnings, Scotland and Great Britain

Source: New Earnings Survey 1995, from Equal Opportunities Commission (1996)

Not only are female average hourly earnings lower than men’s, since women on average work fewer hours than men, their average weekly earnings are less than three-quarters those of men’s. It is particularly women with children who are subject to lower earnings thanks to an interrupted career or restricted opportunities for promotion or career move thanks to the additional burden of childcare. It is instructive to look at an occupation such as teaching, where there has long been equal pay (see Table 4).

Table 4. Teaching staff in Scotland 1994 and England/Wales 1993, by sex and seniority, numbers and percentages

Source: Scottish Office Education Department and Department for Education and Employment, from Equal Opportunities Commission (1996)

In Scotland particularly, a male has a one in three chance of becoming head of a nursery or primary school (where the great majority of teachers are female), against a less than one in ten chance for a female. In secondary education, where numbers of men and women are almost equal, a man is more than twenty times as likely as a woman to become head teacher. Hence, even in occupations where there is equal pay there is a marked disparity between men and women, whether women have numerical predominance, as in nursery and primary teaching, or where there are more or less equal numbers of men and women, as in secondary teaching.

Because of such disabilities, Scots law now treats married persons as if they were unmarried except where it is disadvantageous to either party to do so. The application of the law, however, is in the hands of the courts. In 1997 there was only one female judge in Scotland; only eight of the 107 full-time and eight of the 99 part-time sheriffs were women (ENGENDER 1997). This bias does not necessarily lead to injustice against women, but it is nevertheless worthy of record.

The following relates the law as it applies to women, but it should be borne in mind that a man in similar circumstances to a woman would be treated in law in exactly the same way. A minority of men have the major responsibility for childcare; a minority of men is known to suffer domestic violence.

On getting married

The age of capacity to marry is 16, without the necessity for parental consent, a longstanding right confirmed by §1 of the Marriage (Scotland) Act 1977.

Actions for breach of promise were abolished by §1(1) of the Law Reform (Husband and Wife) (Scotland) Act 1984. If an engaged couple buys property jointly but the marriage does not take place, any property dispute is governed under the general law of property.

Scots law currently recognises two forms of marriage: regular and irregular.

True consent is the essential element of marriage in Scots law. A regular marriage is void if a party’s consent was obtained as a result of force or fear. This generally concerns arranged marriages, and the pursuer may be male or female. This person is, however, more likely to be female, and of ethnic minority origin. Marriage is also voidable if one or both of the parties at the time of the ceremony is permanently and incurably impotent.

Table 5 shows that the number of marriages has been declining steadily in the last two decades.

Table 5. Total marriages in the United Kingdom, 1971-1992 (thousands)

Sources: Office of Population and Censuses Surveys; General Register Offices for Scotland and Northern Ireland (in Regional Trends 1995)

In Great Britain, the number of marriages fell by a quarter between 1971 and 1991 to 340 thousand and then rose slightly to 347 thousand in 1992. Eventually, however, most men and women marry; and that marriage is still popular is shown by the large numbers who re-marry, as shown in Table 6.

Table 6. Marriages by type, United Kingdom, 1971-1992, thousands

1 Remarriage for one or both partners.

Source: Office of Population Censuses and Surveys; General Register Office (Scotland); General Register Office (Northern Ireland) (Social Trends 1995)

Between 1961 and 1981 there was a rapid growth in remarriages, from 14% to 34%, but since then the rate has remained fairly steady. In 1992, 38% of marriages in the United Kingdom were remarriages, and the great majority of remarriages now involve at least one divorced person. Differences between Scotland and the rest of Great Britain (but not Northern Ireland) appear to have diminished, as shown in Table 7.

Table 7. Remarriages[1] in the United Kingdom, 1971-1996 as a percentage of all marriages

1 Marriages in which at least one of the partners had been married previously.

Sources: Office of Population and Censuses Surveys; General Register Offices for Scotland and Northern Ireland (in Regional Trends 1995)

In Scotland a quarter of all marriages in 1992, both for men and women, were second marriages for men or for women or both. Many couples choose to cohabit rather than marry. Table 8 shows the percentage of women cohabiting in Great Britain in 1992-3.

Table 8. Percentage of women cohabiting, by age, 1992-3, Great Britain, percentages

1 Never married 2 'Non-married' does not include separated.

Source: Office of Population Censuses and Surveys (in Social Trends 1995)

Divorced women are more likely to cohabit than single women who have never married, perhaps as a result of their previous experience of marriage and divorce. In 1991-1992 around 7 per cent of non-married women aged 16-59 cohabited.

On being married

• The Married Women’s Property (Scotland) Act 1920 deemed a married woman capable of entering contracts on the same basis as an unmarried woman, and this legal equality was extended further under §24(1) of the Family Law (Scotland) Act 1985.
• Marriage has no automatic effect on nationality.
• A wife may retain her maiden name on marriage.
• It is the duty of the spouses to live together but a wife is no longer regarded as in desertion if she refuses her husband’s choice of matrimonial home (§2, Law Reform (Husband and Wife) (Scotland) Act 1984).
• A husband and wife have a duty to maintain (aliment) each other, in accordance with ‘the needs and resources of the parties, the earning capacities of the parties and generally all the circumstances of the case’ (§1 (1)(a) and (b) of the Family Law (Scotland) Act 1985. This applies as long as the marriage lasts and is not invalidated by matrimonial misconduct except in extreme circumstances. In view of the lower average earnings of women, especially married women, it is reasonable to suppose that the majority of claims for aliment are brought by women, and the following assumes this. Thus, if a woman leaves her husband and sues him for aliment, the husband may offer to aliment her on her return to the household. In this case the court considers whether it is reasonable for her to accept this offer. If a woman has been a victim of her husband’s violence she will obtain aliment even if she refuses to live with him. This is, however, by decision of the court. Under §2(6) of the Family Law (Scotland) Act 1985, a spouse no longer has to leave the matrimonial home before s/he can sue for aliment. A wife can, therefore, sue her husband for an adequate housekeeping allowance.
• A wife can now acquire an independent domicile (§1, Domicile and Matrimonial Proceedings Act 1973).
• A husband can now be found guilty of raping his wife, whether or not they are living together. This was laid down by the High Court of Justiciary in S v. H.M. Advocate 1989 SLT 469. There remains, however, the problem of proof, and in this particular case the jury found the charge not proven.
• A wife cannot obtain income support if she is living with her employed husband. This also applies to cohabitees.

On conceiving a child

Scottish criminal law prohibits abortion at any time from conception onwards, but under §1(1) of the Abortion Act 1967, as amended by the Human Fertilisation and Embryology Act 1990, an abortion is lawful if it is carried out by a registered medical practitioner and two doctors believe in good faith that the foetus is no more than 24 weeks old and that continuing the pregnancy involves greater risk to the health of the mother or existing children than an abortion. Since childbirth carries more risk than an early abortion, this makes abortion quite easy to obtain. Table 9 shows the number of abortions for selected years from 1981. (Note that in Northern Ireland, although a part of the United Kingdom, it is forbidden to carry out an abortion; women requiring one must travel to England, Scotland or Wales.)

Table 9. Legal abortions performed to residents, 1981 to 1996, England, Wales and Scotland (thousands[1])

1 Totals include cases where gestation was not stated.

2 Excludes a small number of abortions performed in Scotland on women normally resident in England and Wales.

Source: Office of Population Censuses and Surveys; The Scottish Office (in Regional Trends)

The father’s consent is not necessary and he cannot prevent the abortion.Other grounds include the serious risk that the child would be seriously handicapped. In this case, and where the mother’s health or life would be seriously threatened by continuing the pregnancy, abortion may be permitted at any time. Only in a minority of cases are legal abortions performed after even 13 weeks, as Table 10 shows.

Table 10. Legal abortions performed to residents, by weeks of gestation, 1993, England, Wales and Scotland, percentages of total abortions

Source: Office of Population Censuses and Surveys; The Scottish Office (in Regional Trends)

The mother’s consent is necessary in all cases.

On becoming a parent

Parenthood carries legal responsibilities and rights until the child is 16, with some responsibilities continuing until 18. There are differences between being a mother or father and being a parent. Although a parent is the child’s genetic mother or father or adoptive parent under the Children (Scotland) Act 1995, motherhood is defined legally, not genetically. Hence a woman who gives birth to a fertilised ovum donated by another woman is the mother. A resulting son would be legally entitled to marry his genetic mother but not his birth mother. A similar case exists when sperm comes from a donor with the husband’s consent (Human Fertilisation and Embryology Act 1990). Otherwise, however, the father is defined biologically.

Any legal ill effects of illegitimacy have been largely abolished by the Law Reform (Parent and Child) (Scotland) Act 1986, a sensible measure in view of the rising number of children born out of wedlock, as shown in Table 11.

Table 11. Live illegitimate births, rate per 1,000 live births: by age of mother, 1976 and 1986, United Kingdom

Source: Office of Population Censuses and Surveys (in Regional Trends 1988)

The figures have continued to rise: in 1995, one third of the 60,051 births in Scotland were to unmarried mothers (ENGENDER 1997).

There are still, however, differences between a legitimate and an illegitimate child as regards who has parental responsibilities and rights. A man is assumed under the Law Reform (Parent and Child) (Scotland) Act 1986 to be the father of a child if he is married to the mother at any time during the period from conception to birth. If they are not married, he is presumed to be the father if both he and the mother acknowledge this and register the child as such. Either man or woman can claim that a child is or is not the man’s natural child. The claim must be substantiated by sufficient evidence.

The mother automatically has parental responsibilities and rights for any of her children, but unless the father was married to the mother as above, he acquires parental rights only by court order (if the court agrees this is in the child’s interests, irrespective of the feelings, opinion or attitude of the mother) or by agreement with the mother.

The mother’s agreement to give parental status to the father of her illegitimate child can be made at any age (for example, even if both are under 16). The ‘domicile of origin or dependence’ of a child born in wedlock is prima facie the father’s; out of wedlock, the mother’s. Hence, the father of an illegitimate child is not automatically its parent.

The mother of a child born out of wedlock can agree to have the child adopted but this agreement is valid only if made six weeks or longer after the birth (Children (Scotland) Act 1995).

In case of physical, sexual or emotional abuse of a child or children, under Scots law the court may require the abuser, not the child(ren), to leave the family home. This has been possible under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (see below) at the instance of the other spouse or cohabitee. It is now also possible at the instance of a third party, for example, the local authority, by means of an exclusion order under the Children (Scotland) Act 1995. This is a very new provision and it is as yet unknown to what extent the courts will make use of it.

Same-sex relationships are not legally recognised, and lesbian and gay parents have particular difficulty on gaining custody of children after marital breakdown (ENGENDER 1997).

On being injured

Previously a person who was injured had no right to sue for loss of earnings unless they received a salary. This disadvantaged women in particular where they had given up paid work for domestic responsibilities. Under §9 of the Administration of Justice Act 1982, an injured woman can now sue for damages if she is not longer able to provide unpaid personal services to a relative, including a husband, child or cohabitee.

On owning or acquiring property in marriage

Moveable property

Until the Married Women’s Property (Scotland) Act 1881 almost all moveable property that she owned or subsequently acquired became her husband’s on marriage (by his jus mariti), and any heritable property remained hers but was still administered by her husband (by his jus administrationis) until this jus was abolished by the Married Women’s Property (Scotland) Act 1920. Except where the donor becomes bankrupt (in which case a gift can be struck down as ‘gratuitous alienation’), gifts between spouses can no longer be revoked during the donor’s lifetime (§5 Married Women’s Property (Scotland) Act 1920).

Currently, as regards the ordinary rules of property, spouses are treated as if they were unmarried by the Family Law (Scotland) Act 1985. This legal equality, however, led to injustice, particularly vis-à-vis women, who have less opportunity than men to acquire property during marriage (see tables 1-4 above). Furthermore, spouses often pool their resources in order to acquire a home or other property.

Formerly, if for example the husband bought a car while his wife was earning little or nothing, the car belonged to him alone. If husband and wife were both earning, and the wife paid for housekeeping expenses while the husband paid for moveables (such as furniture), such moveables belonged to the husband alone.

So special property rules have been added to take this into account. §25(1) of the Family Law (Scotland) Act 1985 provides that household goods except for gifts or inheritance from a third party, are presumed to be owned in common unless there is evidence to the contrary. This excludes, however, money or securities, any road vehicle and any domestic animal. It also excludes gambling wins except where in part of whole these are used to buy goods. (A National Lottery winner need not, therefore, share any of his win with his spouse, as happened recently in England in the case of a multi-million winner who had left his spouse and children to live with another woman.)

Money and securities

In the case of money or securities, if a husband puts money into an account in his own name only, it remains his, unless the wife can prove that she transferred the money to him to invest. In this case she benefits from the presumption against donation. There are, however, complicated problems with joint bank accounts.

Where a wife makes savings from her housekeeping allowance (intended for joint household expenses), the husband owned these savings until the Married Women’s Property Act 1964 provided that, without evidence of agreement to the contrary, they should be presumed to be owned jointly. This was extended to savings made to a husband out of any housekeeping allowance given to him by his wife by §26 of the Family Law (Scotland) Act 1985. Referring back to gambling wins, it is possible that if the initial stake came from a housekeeping allowance, the other spouse would be entitled to half the winnings.

The matrimonial home

The matrimonial home is any property acquired with the intention of using it as a family home or actually used as a family home. It is not limited to one property. Rights pertaining to the matrimonial home end only with divorce or death. Whoever holds the title is thereby the owner of the property. In Scotland in the majority of matrimonial homes, title is taken in joint names. Even in this case there can be problems. Each spouse owns a half-share of the value of the property, and either may sell his/her share or dispose of it by will (see below) against the wishes of the co-owning spouse. The Matrimonial Homes (Family Protection) (Scotland) Act 1981 regulates property transactions involving the matrimonial home.

Ownership of the matrimonial home by the husband alone

The principle of separate property was unjust where the husband held the title, whether or not the wife had contributed, directly or indirectly, to buying the matrimonial home or paying the mortgage. In England, a court considers the extent of the wife’s interest in the house as proportional to the size of her contribution, but under Scots law this is problematic. If, for example, a wife gives her husband funds to purchase the house in his sole name, but there is no written agreement to this effect, it is possible for the husband to sell the house to a third party without her consent.

If the husband leases or sells the matrimonial home to a third party she has the right to continue to occupy it, unless she has renounced in writing this statutory right and sworn or affirmed before a notary public that she was not coerced into this renunciation.

Joint ownership of the matrimonial home by both spouses

Under the common law either co-owner could apply for a decree to sell his/her share of a property. Now, under §9 of Matrimonial Homes (Family Protection) (Scotland) Act 1981, the court has the discretion to refuse to grant such a decree in the case of a married couple if it is considered unreasonable in the circumstances and if the would-be seller has made no offer of alternative accommodation. If the husband sells or leases his share of the matrimonial home to a third party, the third party cannot occupy the matrimonial home while the wife is still living there (§9(1) of the 1981 Act. If there are children the wife has greater protection: the court can delay granting decree until the youngest child becomes 18, even if the couple divorce before that date. If the husband becomes bankrupt, §40 of the Bankruptcy (Scotland) Act 1985 protects the occupancy rights of the co-owning wife and any children of the family.

Tenancy of the matrimonial home

In the case of rented matrimonial homes, the tenancy is usually in the name of one of the spouses, most commonly the husband, and it is the tenant who has security of tenure. A non-entitled wife can apply to the court for transfer of the tenancy to her name if she pays ‘just and reasonable’ compensation to the husband. If the entitled spouse leaves the matrimonial home, the non-entitled wife can keep possession of the tenancy under the Rent (Scotland) Act 1984.

On the death of the husband

Marriage, even re-marriage, does not revoke a previous will. Nevertheless a widow has important legal rights on the death of her husband, more so than a cohabitee - who nevertheless has been given certain legal rights. This is not unimportant in view of the fact that an estimated 14% of couples who live together are not married. Under the Damages (Scotland) Act 1976, where a man has died as the result of actions (a delict) by a third party, claims for damages for loss of support, funeral expenses and compensation can be brought by a surviving widow and members of the deceased immediate family, including any cohabitee.

When a husband dies, the widow and children have legal rights to a proportion of the deceased’s estate, whatever is stated in the will. Given the much longer life expectancy of women, the propensity of women to be married to older men and the general concentration of wealth in male hands, this is of major importance to women in particular.

There are two possible cases in the event of a death of a husband: he leaves a testamentary deed (will) or dies intestate (that is, without leaving a will). Both are regulated by the Succession (Scotland) Act 1994. Property under the Act is divided into two kinds: free moveable estate (such as money, shares, jewellery, furniture, cars, CDs etc) and heritable property (in most cases, this would be the matrimonial home but it also applies to land or any dwelling).

The first case obtains if there is a will, even if the husband left nothing to his wife and/or children. If the widow has no children she has a legal right to half her husband’s free moveable estate but not to heritable property. If she has children (whether legitimate or illegitimate) she has a legal right to one-third of his free moveable estate, and the children jointly have a similar right to one-third of the free moveable estate. If there are only surviving children, they have a right jointly to half the free moveable estate.

The husband can, however, test (leave by will) the remaining free moveable estate and all heritable property to whomever he wishes. Furthermore, he could deprive his widow and/or children further by having converted all his free moveable estate into heritable property (for example, by selling assets in order to buy another house) or by legitimately transferring all his free moveable estate to a third party in his lifetime, and leaving his heritable property to whomever he wishes.

In the second case, where the husband dies intestate, the widow enjoys substantial prior rights (that is, her legal rights must be satisfied before the rights of other surviving family members). Her rights include: the dwelling in which she was ordinarily resident when her husband died, up to a value of £110,000 (or a sum of £110,000 if the value of the dwelling is greater than this); furnishings and plenishings up to a total value of £20,000, and a further £50,000 of the free moveable estate (£30,000 if there are surviving children). In addition to this, she can claim legal rights from any remaining free moveable estate. Any children can make a claim only if any property is left over after the widow’s prior rights are satisfied. Clearly it is in the wife’s interest if her husband dies intestate.

On the breakdown of marriage

A significant feature of modern British society is the increase in lone parent households, as shown in Table 12.

Table 12. Families: by type in the United Kingdom, 1988-1989 and 1992-1993[1], percentages

1 Two years data combined.

Sources: General Household Survey; Northern Ireland, Continuous Household Survey (Regional Trends 1995)

The rise in the percentage of lone parents with dependent children is particularly noticeable. A major problem for lone parents is maintaining income through employment. Table 13 shows the small percentage of lone parents in full-time employment, contrasted with those economically inactive.

Table 13. Lone parent households, Great Britain, 1991

1 See Appendix notes.

2 Households with only one person aged 16 or over and with one child or more aged 0-15.

3 Includes those on government employment and training schemes and those unemployed.

Source: Office of Population Censuses and Surveys; General Register Office for Scotland, in Regional Trends 1994

Whereas the majority of male heads of household are owner-occupiers, female heads of household are more likely to live in social housing, and in particular 70% of lone parents do so. Female owner-occupiers tend to live in cheaper housing and spend a higher proportion of their income on mortgage repayments than men (ENGENDER 1997).

Many lone parent families arise from the breakdown of a marriage (see Table 14).

Table 14. Family composition in Scotland and Great Britain, 1995

Source: Labour Force Survey, Spring 1995, from Equal Opportunities Commission (1996)

A significant proportion of families with children are headed by a lone parent through divorce or separation. Such breakdown is not uncommon and legal changes over the period have made it easier to get a divorce. In 1995, one in five households with children aged 15 and under was headed by a lone parent and 93% of these lone parents were women (ENGENDER 1997). Table 15 shows marriage and divorce in the United Kingdom compared with the EC average.

Table 15. Marriage and divorce rates in the United Kingdom compared with the EC average, 1981 and 1992, rates per thousand population

1 Data in 1992 column for divorces relate to 1991.

Source: Eurostat (in Social Trends 1995)

The United Kingdom had the highest divorce rate in the EC in 1992, at almost twice the average. The number of divorces nearly trebled between 1961 and 1971 and doubled between 1971 and 1981, but the rate of increase has since decreased to about 11 per cent. Nevertheless, between 1977 and 1992 both the number of divorces and the number of children aged under 16 of couples divorced increased by a sixth. However, divorce of couples with young children is more common; the number of children aged under 5 affected by divorce in 1992 was 57 thousand, almost two thirds higher than in 1977.

The divorce rate has been rising steadily and currently shows little sign of decreasing, though new legislation planned for England and Wales will make it more difficult to end speedily a marriage where there are dependent children. This is unlikely to affect the rate of separation.

Custody of any children

The Children (Scotland) Act 1995 (§2) has replaced the term ‘custody’ with ‘residence’ but the term ‘custody’ will be used here in the non-legal sense of ‘primary care of the child, mainly in the residence of one parent’. The primacy of the welfare of the child and the theoretical ‘no-fault’ concept of divorce mean that, unless it is directly detrimental to the child, a person’s conduct is not relevant in custody claims. Hence a wife’s adultery would be irrelevant. There is, however, no presumption in Scots law that a young child should live with its mother. If such a child has lived satisfactorily with its father since its parents’ marriage broke down, the court may reject a custody claim by the mother.

In practice there are very few custody cases and children generally remain in their mother’s care by agreement of both parents. Hence, although the majority of families with dependent children are headed by a couple, a significant proportion are headed by a lone parent, usually a woman. Where parents separate or divorce, the absent parent (usually the father) has both the responsibility and the right to maintain personal relations and direct contact with the child under the Children (Scotland) Act 1995.

It is customary for a legitimate child to take its father’s surname. If after divorce the mother wishes to change her children’s surname to that of a step-father, the court will decide if this is in the best interests of the child under the 1995 Act.

Residence

Under common law the legal owner or tenant had the right of exclusive possession and could order the other spouse to leave. This has been reversed by the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Now the non-entitled spouse has a right to occupy the matrimonial home, along with any children. Rights to occupy the matrimonial home remain throughout separation or if one spouse sells his/her share to a third party. The Act also in certain cases enables a cohabitee to continue living in the matrimonial home despite the relationship breaking down. §3(2) of the Act provides that the wife or cohabitee continuing to live in the matrimonial home can apply for the continued use or possession of furnishings and plenishings, owned or hired by the other spouse or partner, which are ‘reasonably necessary to enable the home to be used as a family residence’.

Domestic violence: exclusion orders

In the great majority of cases, it is men who are violent to women (and to children). Thus the court can also make exclusion orders under §4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 against the husband, notwithstanding he is the owner, co-owner, tenant or co-tenant of the property, if this is considered necessary to protect the physical or mental health of the applicant (normally a woman) or any child of the family. The wife does not have to be occupying the matrimonial home at the time of application. In some cases, rather than make an order excluding the husband from the matrimonial home, the court may think that a matrimonial interdict prohibiting the molestation of the applicant may be sufficient protection. In effect, it is the judge at first instance (the Lord Ordinary or the sheriff) who judges whether exclusion is necessary for the reasons stated in the Act; his decision is very likely to be upheld by an appellate court.

Some consider the necessity criteria too narrow, but they do include the most obvious forms of domestic violence, which is a considerable advance on the previous position where ‘internal family disputes’ were not considered proper matters for outside intervention except in the most extreme cases. Furthermore, where there are children of a failing marriage (whether they are currently living in the matrimonial home or not) their welfare is considered paramount under the Children (Scotland) Act 1995. It is therefore considered reasonable that a wife looking after the children should have exclusive occupation of the matrimonial home.

Domestic violence: interdicts against molestation

FONT SIZE=+0>Under the common law a wife could obtain an interdict against molestation by her husband but if he broke this she could bring only a civil action against him, and the police could intervene only if he had committed a crime or offence, such as an assault. Under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, however, the court can attach the power of arrest to an interdict; and where the interdict is ancillary to an exclusion order the power of arrest must be attached. This applies even if the spouses are still living together as husband and wife. Thus the husband can be prohibited from entering a specified part of the matrimonial home. If a police officer has reasonable cause to suspect that the husband has broken the interdict, s/he can arrest him without a warrant. Molestation can therefore be interrupted with the minimum of delay.

Since the decline in access to Legal Aid, however, the number of abused women who decided to proceed with an action once they have been informed of the cost has dropped.

It is impossible to state how many acts of violence are committed against women (within or outwith marriage). Domestic violence is thought to account for one-quarter of all reported violent crimes in Scotland but it is estimated that only a small proportion of violent attacks on women (as low as 2%) are reported to the authorities. On the other hand, the number of women contacting Women’s Aid groups has quadrupled in the last ten years. At the same time funding for Women’s Aid groups has remained the same or decreased (ENGENDER 1997).

Immigrant and refugee women

The majority of people who immigrate to join a spouse or person to whom they are engaged to be married are women.

If a woman succeeds in entering the United Kingdom to join her husband or fiancé (which is by no means certain to be granted, although new regulations now require immigration officers to prove that the marriage is bogus rather than the couple having to prove it is genuine) she must stay in the marriage for a year, with no recourse to public funds (that is, she cannot claim income support, family credit, housing benefit or housing if she becomes homeless) before she can get indefinite leave to remain in the country. If the relationship then breaks down within a year, she finds herself in the situation of having to remain in the marriage until one year after entering the country or face deportation or poverty and homelessness, coupled in many cases with social isolation and the disapproval of her community, especially in the case of Asian women (the majority of ethnic minority people in Scotland are of Asian origin).

On the breakdown of cohabitation

Cohabitation involves living together as husband and wife, thus engaging in sexual intercourse, maintaining a single household together, providing mutual services and perhaps having a joint social life.

The Matrimonial Homes (Family Protection) (Scotland) Act 1981 gives some protection where the relationship starts to break down. A non-entitled female partner may apply to continue occupying the house and be granted this for up to six months, renewable by the court. The court’s decision will take into account the length of the relationship and whether the partners have any children. She may also apply for regulatory and exclusion orders and interdicts, but she has no protection if the entitled partner sells or leases the property to a third party.

A rider - England and Wales

Previously in England and Wales the law acknowledged domestic violence only between partners who were married or currently living together. The Family Act 1996 (England and Wales) extends protection to others, whether living together or not: ex-spouses and former partners who have split up, other close relatives, people who are or have been engaged to be married and flat-sharers. In all these cases the courts now have the power either to allow the victim to occupy the home and bar the molester from it, and/or to apply non-molestation orders barring pestering, threatening or violent behaviour to the applicant (or to a child). The court can now attach a power of arrest to any order it makes, without the victim having to pursue injunctions under the civil law or criminal charges (in practice, many women are reluctant to do this) (The Guardian, 30 September 1997). In this, English law appears to be catching up with Scots law.

On being deserted for another woman

If an unemployed woman is deserted by her husband, a low wage earner, to live with his unemployed mistress and he does not provide aliment for his wife, she can pursue various courses of action:

• at common law she can obtain necessities such as food and clothing on her husband’s credit (if she can persuade suppliers to do this)
• she can bring an action against her husband (but this is unlikely to benefit her, because the court will take into account the position of the cohabitee, who will be unable to claim income support because of the cohabitation rule and therefore will suffer hardship if her partner pays aliment to his wife)
• she can apply for income support, without seeking a decree of aliment and leave the Secretary of State to proceed against her spouse for contribution towards income support. Under §78(6) of the Social Security Administration Act 1992, a spouse is liable to maintain his/her spouse and children up to 16 (or 18 if either parent is receiving income support). In practice little over 10% of money paid in income support is recovered from liable relatives.

On wishing to end the marriage

Marriage no longer affects a woman’s legal status: it is principally in divorce that the law intervenes. The common law recognised divorce on the ground of adultery since the Reformation, and an Act in 1573 introduced divorce on the ground of desertion. The Divorce (Scotland) Act 1938 added the grounds of cruelty, incurable insanity, sodomy and bestiality. The Divorce (Scotland) Act 1976 superceded these Acts.

A divorce action can be brought at any time after a marriage begins. Any divorce action can be defended, but in practice 90% of divorce cases in Scotland are undefended. In the United Kingdom as a whole two-thirds of divorce actions are brought by wives. Since women generally have lower incomes than men, more than two-thirds of women seeking Legal Aid for an ordinary divorce action are granted it, against only 38% of divorces raised by the man. The progressive decline in Legal Aid since 1993, which is set to continue, is making divorce more expensive, and therefore more difficult, for all except the very poor and the very rich (ENGENDER 1997).

In Scotland the system is based, on theory, on the non-fault principle of the irretrievable breakdown of marriage, which is stated to be the sole ground for divorce; but, like the equivalent English law, it is in fact a compromise. Although it is recognised that divorce is a legitimate conclusion to an irretrievable breakdown of a marriage, such a breakdown should be proved by at least one of five facts. Of these, the first three (adultery, desertion, behaviour) could be construed as containing ‘fault’.

Where an action is undefended, the pursuer can swear to the facts. A simplified procedure is available for the other two grounds (two years’ non-cohabitation with consent or five years’ without) if there are no children under 16, financial provision is not sought and neither party has a mental disorder.

the defender’s adultery

A woman who has been raped or has conceived a child by means of artifical insemination by a donor (AID) is not guilty of adultery.

If a woman knows or believes that her husband has committed adultery but continues to cohabit with him for more than three months after gaining this knowledge or belief, or if she cohabits with him for less than three months and then resumes cohabitation after three months of learning of the adultery, it is assumed that she condones the adultery and therefore will not be granted a divorce on this ground.

the defender’s behaviour

If since the marriage, the husband, for whatever reason and in whatever way, behaves in a way that his wife cannot be reasonably expected to cohabit with him, she may obtain a divorce. Corroboration is not required: ‘the standard of proof is upon the balance of probabilities’ (Thomson 1996:108). If the husband’s alleged behaviour is, for example, violent but the wife continues to cohabit with him, her application for divorce would be viewed sympathetically on the grounds that she was afraid or unable to leave.

the defender’s desertion and non-cohabitation for two years

Desertion must be a wilful act, without reasonable cause (such as knowledge by the one who leaves of his/her spouse’s adultery). Cohabitation must cease, even if the spouses continue living under the same roof. Given these facts, even if the husband and wife have had sexual intercourse during the two years and/or have cohabited one or a number of times up to a total of six months, the decree may be granted.

Agreement to separate does not constitute desertion and a wife may not divorce her husband on this ground if he becomes mentally ill or is incarcerated. The decree will not be granted if the one who left has made a genuine and reasonable offer to return.

the non-cohabitation of the spouses for two years, both consenting to divorce

A woman may be granted a divorce on this ground if, for example, the husband is in prison or working away from home for at least two years continuously. It may also be granted even if they inhabit the same house as long as they are not cohabiting, although cohabitation for up to six months withing the two-year period does not go against the action. The husband must consent to the action.

the non-cohabitation of the spouses for five continuous years, irrespective of the consent of the non-applicant

The only defence against such an application is where the divorce will result in grave financial hardship. In practice, since the poor have little or nothing to provide and the rich can make financial provision without difficulty, it is principally middle-class women who might make such a defence, particularly where their husband will receive an occupational pension payable to his widow. In fact, under the Family Law (Scotland) Act 1985, such pension rights acquired during the marriage must be shared fairly on divorce, so this defence is likely to succeed only in exceptional cases.

On obtaining financial provision in case of divorce

This is regulated under the Family Law (Scotland) Act 1985. One advantage of the Act for women is that, for example, the courts can compensate a wife for any economic disadvantage she suffered as a result of the marriage. Where there are children, however, the court generally supports the status quo, which in the great majorityof cases consists of the mother de facto looking after the children on the breakdown of the marriage. The children’s claim to maintenance must be met before those of the wife are considered.

In the great majority of cases of divorce, there is little income or capital to be divided, but where there is, financial provision is determined by a set of principles. The courts, however, retain a considerable degree of discretion to take into account the circumstances of each particular marriage and of each partner in the marriage. The court’s powers include the following:

• Where the matrimonial home is the only substantial capital asset, its sale may be delayed until the youngest child becomes 18.
• If the wife is co-owner of the matrimonial home and the children remain with her, the court can order the husband to transfer his share to the wife.
• The law prefers a capital settlement, to allow a ‘clean break’. The capital payment may be made in a fixed number of instalments. The court may make orders for periodical allowances, but only in exceptional cases.

The principles on which the courts act are set out in §9 of the Act, but it must be remembered that these have little effect in the majority of cases, given the relative poverty of many divorcing spouses.

9(1)(a) The net value of the matrimonial property should be shared fairly between the spouses. This includes all property acquired by the spouses during the marriage up to the breakdown of the marriage (that is, the cessation of cohabitation or the divorce action), including money, vehicles, domestic animals, any business owned by a spouse, life policies and pension rights. It excludes gifts or inheritance from a third party unless these or any part of them have been used to buy property. The division of the property is not affected by the conduct of either spouse unless that conduct reduced the couple’s property.

9(1)(b) Fair account should be taken of any economic advantage or disadvantage accrued by one spouse because of the marriage. For example, if a wife acts as unpaid secretary to her husband, or has given up a good career in order to raise children or before marriage has supported her future husband through his education, this will be taken into account. The division of the property is not affected by the conduct of either spouse.

9(1)(c) Any economic burden of caring, after divorce, for a child or children of the marriage under the age of 16 should be shared fairly between the parties. Even though the children must receive aliment, the wife who keeps them will suffer economic disadvantage if her earning capacity is restricted or if she has to pay for childcare. In the United Kingdom childcare is on average expensive and scarce, as Table 16 shows.

Table 16. Education and day care of children under five: by age and type of day care, United Kingdom, 1991

1 Data and ages at 31 December 1990 for England. Data at January 1991, ages at 31 December 1990 for Wales. Data at September 1990, ages at 31 December 1990 for Scotland. Data at January 1992, ages at 31 December 1991 for Northern Ireland

Sources: Department For Education; Department of Health; Welsh Office; The Scottish Office Education Department; The Scottish Office Social Work Services Group; Department of Education, Northern Ireland; Department of Health and Social Services (in Regional Trends 1993)

Although private sector child care provision is growing fast in Scotland, local authority nursery school places have started declining, and fewer than 5% of children under the age of three have access to public-funded services. The need for childcare does not end when the child goes to school, especially when a mother is working full time; but less than one in 12 children have access to Out of School care. Although some employers are sympathetic to the needs of carers, only 27% of Equality Exchange employers in Scotland offer any form of child care support. Most employers offer none (ENGENDER 1997).

In theory she should be compensated for this disadvantage, but the court takes into account not only her circumstances, the age of the children and so on, but also the husband’s. If he is supporting a mistress and her children, the court can decide that this reduces the amount available to the wife. This is not affected by the conduct of either spouse.

9(1)(d) If one spouse has been substantially dependent on the financial support of the other, s/he may be awarded a periodical allowance for a maximum of three years in order to adjust. This is in addition to sums awarded under (a), (b) and (c). In the case of (d), marital misconduct may be taken into account.

9(1)(e) If one spouse at the time of divorce appears likely to suffer serious financial hardship because of the divorce, for example, because the applicant is old or seriously ill at the time of the divorce, financial provision should be awarded for a reasonable period. Marital misconduct may be taken into account.

Legal changes have allowed couples to divorce earlier in marriage. These changes came into effect in January 1971 and October 1984 and their effect can be seen in the statistics. Thus in 1992, 9 per cent of divorces were of marriages which had lasted up to 2 years compared with only 2 per cent in 1981 before the Divorce (Scotland) Act 1976 and the Matrimonial and Family Proceedings Act 1984. At the other extreme only 9 per cent of divorces in 1992 were after 25 years of marriage, compared with 21 per cent in 1961. Over a quarter of divorces took place between the fifth and ninth years of marriage (see Table 17).

Table 17. Divorce in the United Kingdom by duration of marriage, 1961 - 1992, percentages (and numbers for 1992)

@ Included in the last figure in the same column

Source: Office of Population Censuses and Surveys; General Register Office (Scotland); General Register Office (Northern Ireland)(in Social Trends 1995)

Although a minority of divorces are between people who have been married for 20 or more years, this nevertheless involves tens of thousands of women per year in the United Kingdom in general. The majority of these may have no dependent children, but some will have been separated for some years and carried the burden of childcare. Some will already have careers; others will not. For the latter, hardship is possible. Table 18 shows that the dangers for an older woman of losing financial support in a climate of high unemployment.

Table 18. Unemployed claimants: by age and sex, United Kingdom, January 1995, percentages and numbers

1 Not seasonally adjusted.

Source: Employment Department (Regional Trends 1995)

The greatest percentage of female claimants is aged 20-29, a group with higher average educational qualifications than older women and more able to compete for scarce jobs. The 7,500 women aged 50-59 in Scotland, for example, are at a disadvantage in the labour market and would be more seriously affected by divorce than younger women.

Despite some disabilities for a woman arising from divorce, more than two and a half times as many divorces were granted to women as men in England, Wales and Northern Ireland in 1992, and the rate for Scotland is similar.

On being a lone parent: the Child Support Act

As table 5 shows, this is not an uncommon situation, and the incidence of lone parenthood is increasing. Most are women, few are in employment and the majority depend on social security. Many lone mothers receive no financial support from the father of their children.

Under the Child Support Act 1991 a mathematical formula was laid down for the assessment of the amount of maintenance due from the father. This assessment was carried out in most cases by the Child Support Agency (CSA) (under the aegis of the Department of Social Security). Where the ‘parent with care’ - usually the mother - is receiving income support, family credit or disability working allowance, she must authorise the CSA to recover support maintenance from the absent parent, unless she can persuade them that to do so would risk harm or distress for her or the child. If she refuses, her benefit can be reduced for 78 weeks. If she agrees and money is successfully extracted from the father, her state benefit is reduced by the amount she receives from him. Thus, only if the father has sufficient means - which is rare - is the mother likely to benefit from an increased income. It has, furthermore, been reported in the Press that some women have suffered distress from the process.

Dissatisfaction with the results - particularly because of the effect on men who felt they were paying unreasonable amounts, especially when they had a second family - led to the Child Support Act 1995. Under this Act the absent parent may claim further allowable expenses and thus reduce the amount of maintenance he is ordered to pay.

In the United Kingdom as a whole (separate figures for Scotland are not available) the effect of the legislation 1995/6 was to take 2,277 parents off benefit and totally dependent on maintenance from the absent partner (with the risk of such payments being delayed or irregular). On the other hand, 73,000 absent parents were paying only between £0.01 and £2.35 in weekly maintenance (ENGENDER 1997).

Conclusion

Scots law appears enlightened as regards the legal status of women: it is principally the de facto economic inequality of women and their greater share of the burden of childcare that militates against them. There is, however, a further inherent disability for women that is encompassed in the law: the primacy of the interests of any children of necessity militates against the interests of the parent where those interests are not identical. (In the case of unwanted pregnancy, however, the health of the mother overrides any supposed interests of the foetus.)

It certainly cannot be presumed that the interests of the parent and children are identical, and the de facto situation that women, especially but not only after divorce, generally care for their children, gives rise to the real possibility that a woman’s interests will be set aside. Paradoxically, a woman caring for children has greater protection from the law than the man or than a woman without children; but when a marriage or relationship breaks down, she is in greater danger of living and raising her children in poverty than is a man.

Although §9(1)(b) of the Family Law (Scotland) Act 1985 was intended to recognise the economic contribution of non-earning wives and mothers, in practice, according to Professor Thomson, it has not worked. This is for two reasons:

• it is hard to quantify unpaid services and these may be set against her alimentation by her husband;
• only capital sum payments and/or transfer of property orders are available under this principle, and many husbands have no capital assets.

Unless she has the good fortune to have married a wealthy man, a woman is unlikely to profit from divorce and, especially if she has children, she is likely to lose by a marriage that ends in divorce. There is probably little that the divorce law can do about this, and more stringent provisions will not prevent marriage breakdown and separation. Wide-ranging and radical social legislation, including the provision of free or subsidised childcare for children of all ages, as well as access to adequately-paid employment, is needed to protect married women from the consequences of divorce. There is no sign in the UK that such legislation is contemplated.

Bibliography

ENGENDER (1997). Gender Audit 1997: putting Scottish women in the picture. Edinburgh: ENGENDER

Equal Opportunities Commission (1996). Facts about Women and Men in Great Britain 1996. Manchester: Equal Opportunities Commission

Equal Opportunities Commission (1996). Facts about Women and Men in Scotland 1996. Glasgow: Equal Opportunities Commission

The Guardian, 30 September 1997, ‘Safe as our own houses’, by the Lord Chancellor, Lord Irvine of Lairg, and ‘Let’s all get in on the Act’, by Clare Dyer

Office for National Statistics (1996). Social Trends 1970-1995. London: HMSO

Office for National Statistics (1996). Regional Trends 1965-1995. London: HMSO

Thomson J M (1996). Family Law in Scotland (third edition). Edinburgh: Butterworths/Law Society of Scotland

Relevant Acts of Parliament

Nota bene: Some Acts pertaining to family law apply only to Scotland, others to the United Kingdom as a whole, a few only to Northern Ireland.

Great Britain consists of England, Wales and Scotland. The United Kingdom consists of Great Britain and Northern Ireland.

Acts no longer in force

Married Women’s Property (Scotland) Act 1881

Divorce (Scotland) Act 1938

Relevant Acts currently in force in Scotland

Married Women’s Property (Scotland) Act 1920

Married Women’s Property Act 1964

Abortion Act 1967 [United Kingdom]

Domicile and Matrimonial Proceedings Act 1973

Damages (Scotland) Act 1976

Divorce (Scotland) Act 1976

Marriage (Scotland) Act 1977

Matrimonial Homes (Family Protection) (Scotland) Act 1981

Administration of Justice Act 1982 [United Kingdom]

Law Reform (Husband and Wife) (Scotland) Act 1984

Rent (Scotland) Act 1984

Family Law (Scotland) Act 1985

Bankruptcy (Scotland) Act 1985

Law Reform (Parent and Child) (Scotland) Act 1986

Human Fertilisation and Embryology Act 1990 [United Kingdom]

Child Support Act 1991 [United Kingdom]

Social Security Administration Act 1992 [United Kingdom]

Succession (Scotland) Act 1994

Children (Scotland) Act 1995

Child Support Act 1995 [United Kingdom]

Family Law Act 1996 (England and Wales)

 List of tables

Table 1. Economic activity, percentage, of persons aged 16 and over, by sex, in Scotland and England/Wales, Spring 1995

Table 2. Employment status of persons aged 16 and over, by sex, in Scotland and England/Wales, percentages, Spring 1995

Table 3. Average gross hourly earnings, excluding overtime, and weekly earnings, full-time employees on adult rates, by sex, 1995, female earnings as a percentage of male earnings, Scotland and Great Britain

Table 4. Teaching staff in Scotland 1994 and England/Wales 1993, by sex and seniority, numbers and percentages

Table 5. Total marriages in the United Kingdom, 1971-1992 (thousands)

Table 6. Marriages by type, United Kingdom, 1971-1992, thousands

Table 7. Remarriages in the United Kingdom, 1971-1992 as a percentage of all marriages

Table 8. Percentage of women cohabiting, by age, 1992-3, Great Britain, percentages

Table 9. Legal abortions performed to residents, 1981 to 1996, England, Wales and Scotland (thousands)

Table 10. Legal abortions performed to residents, by weeks of gestation, 1993, England, Wales and Scotland, percentages of total abortions

Table 11. Live illegitimate births, rate per 1,000 live births: by age of mother, 1976 and 1986, United Kingdom

Table 12. Families: by type in the United Kingdom, 1988-1989 and 1992-1993, percentages

Table 13. Lone parent households, Great Britain, 1991

Table 14. Family composition in Scotland and Great Britain, 1995

Table 15. Marriage and divorce rates in the United Kingdom compared with the EC average, 1981 and 1992, rates per thousand population

Table 16. Education and day care of children under five: by age and type of day care, United Kingdom, 1991

Table 17. Divorce in the United Kingdom by duration of marriage, 1961 - 1992, percentages (and numbers for 1992)

Table 18. Unemployed claimants: by age and sex, United Kingdom, January 1995, percentages and numbers