European Family Law Volume II
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European Family Law Volume II

The Changing Concept of ‘Family’ and Challenges for Domestic Family Law

Edited by Jens M. Scherpe

This four-volume set maps the emerging European family law. It is intended to serve as a resource for anyone interested in this area of law, as well as a basis for teaching on comparative and international family law courses. The first volume examines the impact of institutions and organisations on European family law. While there is no European body that could actually legislate definitively on family law, there are some institutions that have a direct impact on European family law, while the impact of others is more indirect. In the second volume the changing concept of ‘family’ and challenges for domestic family law are analysed in 21 different jurisdictions, in 16 chapters. All contributions look at ‘horizontal’ family law (the law concerning the relationships between adults), ‘vertical’ family law (the law concerning the relationships of adults and children) as well an ‘individual’ family law (the law on names and gender identity). In the third volume the contributions take a comparative view on specific issues from a European perspective. The fourth volume, which works as a stand-alone monograph, draws on all of the previous chapters, and discusses the present and future of European family law. It establishes areas where ‘institutional’ European family law exists – in the sense that there are binding legal rules for all European jurisdictions – for example, as a result of a decision by the European Court of Human Rights. It also identifies areas where, as a result of common legal and social developments for ‘horizontal’, ‘vertical’ and ‘individual’ family law, an ‘organic’ European family law is emerging and suggests how family laws in Europe are going to develop in the future.
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Chapter 11: The changing concept of ‘family’ and challenges for family law in Scotland

Kenneth McK. Norrie


Scots law, no less than the law in any other European country, both reflects the society it serves and, by setting out a hierarchy of family forms that it preferences, serves to influence the way in which family life is led. Scottish family law, like social attitudes, has been in a state of almost constant flux since the mid-1970s, and it is noteworthy that the major driver of legal change has been legislative rather than judicial. In the 1970s the major political debates around marriage concerned its termination and, in particular, the place of fault within the termination process. No-fault divorce was (partially) introduced into Scots law by the Divorce (Scotland) Act 1976, which restructured the grounds for divorce. Technically, between 1976 and 2004, there was only one ground for divorce – that the marriage had broken down irretrievably – though in reality there were five grounds since irretrievable breakdown could be shown only by establishing one or more of five stated circumstances. Three of these circumstances were fault-based – adultery, desertion and unreasonable behaviour – and could justify immediate divorce. The innovation came with the other two circumstances, which could be shown irrespective of fault: (1) that the parties had not cohabited for a period of two years and agreed to divorce, and (2) that the parties had not cohabited for a period of five years but the defender did not agree to the divorce.

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