Then and now - family law through the decades: what's changed since 1985 and 1995?

1985 – a significant summer in more ways than one

It's July 1985, 'Frankie' by Sister Sledge is topping the UK chart, Live Aid has just become the most famous concert in history, a loaf of bread cost 40p (40p!) and Her Majesty Queen Elizabeth II grants Royal Assent to "an act to make fresh provision in the law of Scotland regarding aliment; regarding financial and other consequences of decrees of divorce and of declarator of nullity of marriage, regarding property rights and legal capacity of married persons; and for connected purposes."

With the Family Law (Scotland) Act 1985 entering into force a year later, so began the operation of the scheme of financial provision on divorce that Scots family lawyers have advised on day in and day out for the last 40 years.

A very different Scotland

Scottish society in the mid-1980s was, of course, markedly different to the current day. National Records for Scotland statistics disclose that in 1985 there were 36,385 marriages, and in 2023, 25,713. Same sex marriage was introduced in Scotland in December 2014, so of those 25,713 marriages in 2023, 1,040 of those were to same sex couples. In addition, 719 couples entered into Civil Partnerships in 2023, a status that was only introduce in 2005. Interestingly, the number of divorces has been slowly decreasing from 13,365 in 1985 to 7,744 in 2022, which seems likely to be linked to the general downward trend in marriages across the same period.

Cohabiting relationships have increased over the same period. There were 1,251,600 households containing couples in Scotland in 2022. This is an increase of 54,000 or 4.5% since 2011 and an increase in 8.1% since 2001. This was reflected in future legislative change in the Family Law (Scotland) Act 2006, providing limited rights for cohabiting couples in certain circumstances.

The purpose of the 1985 Act

The aim of the Act was to provide certainty and to replace a system described by the Scottish Law Commission Report on Aliment and Financial Provision as one of "unfettered discretion" causing difficulty for lawyers in reliably advising clients. Prior to this, the legislation underpinning judicial decision making was section 5(2) of the Divorce (Scotland) Act 1976 which enabled courts to make an order "as it thinks fit, having regard to the respective means of the parties to the marriage and to all the circumstances of the case". This broad judicial discretion was replaced by a framework of clear underlying principles and orders available to the court.

Child law developments

Having made radical changes to the scheme for financial provision, almost exactly 10 years later child law legislation was significantly overhauled by the Children (Scotland) Act 1995 which received Royal Assent in July 1995. This built upon the adoption by the UK in 1989, and then ratification in 1991, of the United Nations Convention on the Rights of the Child. The 1995 Act was the first Scottish Act underpinned by the general principles of the UNCRC.

The 1995 Act

As well as setting out the statutory statement of parental responsibilities and rights it established the legislative framework for the current child protection system in Scotland. The notion of children's views having importance was a fundamental factor of the 1995 Act. As Lord Clyde put it in the case of Sanderson v McManus (1997 SC 55) "The development of the law relating to parents and children in Scots law over the last hundred years has seen a movement away from a consideration of the rights of parents to the custody of or access to their children to a recognition that priority has to be given to the interests and welfare of the child." Indeed, the 1995 Act replaced the terms "custody" and "access" with orders regulating "residence" and "contact". The welfare of the child was enshrined as the paramount consideration in decision-making in respect of children.

The evolving composition of families

Societal change has also been significant in the realm of parents and children. It is difficult to source statistics for the number of unmarried parents, but it is believed that at the time of the Act becoming law only about 5% of births were to unmarried parents, whereas in 2023 just over half (53%) of all births in Scotland were to unmarried parents. This aligns with the fall in the numbers of marriages. The Scottish Household Survey estimated that 22% of households with children were single-parent households in 2023. The number of births in 2023 was the lowest ever recorded level, a falling birth rate being a long-term trend in Scotland.

Child law has seen developments in the intervening decades to reflect some of these changes, with a modernisation of the law regarding unmarried parents in the Family Law (Scotland) Act 2006, including an abolition of the status of "illegitimacy". The continuing evolution of children's rights and the importance of children's views has been recognised in the Children (Scotland) Act 2020.

Conclusion

It is clear that there has been enormous societal change over the last 40 years. At times, the law can be slow to keep pace, but parliament has sought to ensure that there is certainty for separating couples, a recognition of the evolving relationships between adults, and that children at the centre of disputes regarding their welfare. I will leave others in this series to comment on whether these aims have been successfully achieved.