The Changing Concept of ‘Family’ and Challenges for Domestic Family Law
Edited by Jens M. Scherpe
Chapter 11: The changing concept of ‘family’ and challenges for family law in Scotland
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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