Guest article: Looking back for the way ahead

The Scottish Law Commission, under the guiding hand of Professor Eric Clive, gave us two great statutes. The Family Law (Scotland) Act 1985 reached its 40^th birthday this year and its younger relation, the Children (Scotland) Act 1995 reached 30. Social conditions have changed. Legal practice has changed. Why have these two statutes stood the test of time?

Taking first the Family Law (Scotland) Act 1985, here are a set of principles capable of being applied to the financial circumstances of all those looking to divorce or (now) dissolve a civil partnership. They are neither left with the unfettered discretion of a court, nor is the framework inflexible. In the well-worn words of Lord Hope in Little v Little 1990 SLT 785 the legislation is “aimed at achieving a fair and practicable result in accordance with common sense.”

Small wonder that when examining in 2015 how the 1985 Act had fared, Mair, Mordaunt and Wasoff concluded that it had been “Built to Last”. The Act, they found, had facilitated movement towards negotiation, reduction in conflict and reduction in court involvement. It had achieved the Law Commission’s objective of making it easier to avoid expensive litigation and to settle disputes out of court.

The process has not been without its hiccups. There have been just three cases taken to the House of Lords/Supreme Court. In Wallis v Wallis 1993 SC (HL) 49 the House of Lords decided that transfers of property should take place at relevant date value, setting the scene for departing spouses to insist on sale, rather than lose the increase in value of their property. This took the Family Law (Scotland) Act 2006 to remedy. Transfer now takes place at the value on the “appropriate valuation date” which is usually current value.

Discretion to adhere to, or depart from, equal sharing received a wide interpretation in Jacques v Jacques 1997 SC (HL) 20. In that case a husband sold his pre-marital home and invested the proceeds in a house in joint names, which he continued to occupy after separation and where he was trying to run a business. He found himself out of a home, with no business and entitled to only half the proceeds. The sheriff was entitled in the exercise of discretion to apply the presumption of equal shares.

In contrast, in McDonald v McDonald 2017 SC (UKSC) 142, when giving a wide interpretation to regulations relating to the part of the value of a pension referable to the period of the marriage, the Supreme Court pointed to the flexibility of the fair sharing provisions, which temper the prescriptiveness of the legislation. Value genuinely attributable to pre-marriage pension contributions does not need to be shared. The message has not been lost. The value of pensions accrued before marriage is regularly disregarded.

We have developed a much more acute sense of fairness over the years. This has been most recently encapsulated in Foster v Foster 2024 SC 99. The wife, for whom Brodies acted, wanted to transfer her shares in a company run by the husband to him, in return for payment of a capital sum. He successfully resisted transfer on the basis of a lack of immediately available resources. The Inner House reversed that decision.

The Court held that the requirement in section 8(2)(b) to consider how fair financial provision will be implemented is an extremely important final stage of the court’s analysis. This is not simply a discretionary exercise, but requires a careful examination of the evidence. It may involve deferred payment, instalments and on occasion reduction of the sum payable. The share were transferred. The wife received a substantial capital sum, payable by instalments.

The Inner House expressly endorsed the decision in Murdoch v Murdoch 2012 SC 271 where it was noted that the plain objective of the Family Law (Scotland) Act 1985 is to give the widest possible powers to courts to effect a fair division of the matrimonial property on divorce. There should be no artificial barriers in the way of achieving that objective.

The watchword is fairness, and court should be willing to take a pragmatic and fair approach.

Part 1 of the Children (Scotland) Act 1995 is now so ingrained in Scottish legal thinking that we forget just how radical it was when passed. It gave the law relating to children a whole new language. It instilled “parental responsibility” as the primary legal concept in relation to children, with “parental rights” put firmly into the supporting role of enabling a parent to fulfil parental responsibilities.

And then parental responsibilities were spelled out, with the primary duty being to safeguard and promote the child’s health, development and welfare. Further, parents could no longer demand “custody” of their child, but could apply to the court for an order regulating the arrangements for the child’s residence.

We were no longer to speak of “access” to a child, instead there was to be “contact. A parent who did not live with a child has a responsibility to maintain personal relations and direct contact on a regular basis. At a stroke the child’s legal relationship with a non-resident parent was recognised. Parents continued to share responsibilities for their children, after separation.

We may not have realised at the time that the responsibility in relation to contact was framed on the basis of article 9(3) of the United Nations Convention on the Rights of the Child, ratified by the United Kingdom on 16 December 1991.

And, of course, the 1995 Act was in the vanguard in imposing a requirement to give children the opportunity to express views and in imposing on parents and courts the obligation to have regard to such views as the child expressed. This reflected article 12 of the United Nations Convention on the Rights of the Child,

In White v White 2001 SC 689 the Inner House was in no doubt that the structure of the Children (Scotland) Act 1995 complied with the requirements of art 8 of the European Convention on Human Rights. The terms of Part 1 respected family life and enshrined provisions for balancing the competing interests of the various members of the family. In making regard for the child's welfare the paramount consideration sec 11 (7) (a) conformed to approach laid down by the European Court of Human Rights.

There has been no Supreme Court challenge to the terms of the 1995 Act. In NJDB v JEG 2012 SC (UKSC) 293 the pace and cost of proceedings drew adverse comment, but not the legislation.

The Children (Scotland) Act 2020 largely focusses on procedure. It does not change the basic structure of parental responsibilities and rights. These are now a key building block in other Scottish legislation.

What does the success of these two statutes tell us? Legislation is more likely to stand the test of time if: