Chamber and committees

Scottish Law Commission submission of 15 December 2021

PE1904/B - Change Scots law to disqualify estranged spouses from making claims on an estate

Thank you for your letter of 8 December. You ask for the Scottish Law Commission’s views on the actions called on in this petition.

We concentrate on the question of how estrangement is defined in Scots law (if at all) and at which point estrangement is deemed to have occurred. What follows is the work of two of our Commissioners, Kate Dowdalls QC and Professor Gillian Black.

There is no legal definition of “estrangement” for the purpose of Scots family law. The term is not commonly used by Scots family lawyers. When spouses and civil partners separate, there is no change of legal status; they remain married/ civil partners. It is only when they divorce or their civil partnership is dissolved that their status changes (and therefore their rights in succession fall away).

Further, section 1 of the Succession (Scotland) Act 2016 provides that where a person (the testator), by a will, confers a benefit on a person who is or becomes their spouse or civil partner and the marriage or civil partnership is later terminated by divorce, dissolution or annulment, the person on whom the benefit was conferred is treated as if they died before the testator.

The date on which spouses and civil partners cease to cohabit is, however, significant for other reasons. Section 10 of the Family Law (Scotland) Act 1985 sets out the basis upon which the value of matrimonial or partnership property shall be shared on divorce.

It provides that the net value of the matrimonial property shall be the value of the property at the “relevant date” after deduction of any debts incurred by one or both of the spouses/ partners. Section 10(3) defines the “relevant date” as the earlier of (a) the date on which the persons ceased to cohabit (subject to subsection (7), which provides that no account shall be taken of a continuous period of cessation of cohabitation of more than 90 days followed by resumption of cohabitation for less than 90 days) or (b) the date of service of the summons for divorce/ dissolution.

Section 27(2) of the 1985 Act provides that parties to a marriage shall be held to cohabit with one another “only when they are living together as man and wife”.

The date of cessation of cohabitation is also significant for the purpose of establishing whether a ground of divorce is established in terms of section 1(1) and (2)(d) or (e) of the Divorce (Scotland) Act 1976. Subsections (2)(d) and (e) provide that a marriage shall be taken to have irretrievably broken down; (d) where there has been no cohabitation between the parties for a continuous period of one year immediately prior to bringing the action (for divorce) and the defender consents to the granting of decree; and (e) there has been no cohabitation between the parties at any time during a continuous period of two years immediately prior to bringing the action.

In terms of section 2(4), in considering whether either of the periods mentioned in section 1(2)(d) or (e) is continuous, no account shall be taken of any period or periods not exceeding 6 months during which the parties cohabited, but any such period(s) shall not count as part of the periods of non-cohabitation required.

Similar provisions apply in relation to dissolution of civil partnership, in terms of sections 117 and 119 of the Civil Partnership Act 2004.

Section 13(2) of the 1976 Act provides that, for the purposes of that Act, “the parties to a marriage shall be held to cohabit with one another only when they are in fact living together as man and wife and “cohabitation” shall be construed accordingly”. There is no equivalent interpretive provision in the 2004 Act.

The question whether spouses have ceased to cohabit for the purpose of section 10(3)(a) of the 1985 Act was considered in the case of Banks v Banks 2005 Fam LR 116, in which Lord Carloway held that the task of the Court was to determine when the parties ceased to cohabit, having regard to the statutory provision that cohabitation occurs only when parties are “in fact living together as husband and wife”; the Court must look at the matter objectively; the intention of the parties was not determinative; however their intention and any communication may be relevant (para 33).

This approach in was followed in Bain v Bain 2008 Fam LR 81. The formulation of the test in Banks was approved by the Second Division in the Inner House of the Court of Session in S v S 2015 SC 513.

Judicial separation, available to spouses under section 4 of the 1976 Act and to civil partners under section 120 of the 2004 Act, remains available but is rarely used. The grounds upon which decree may be granted are the same as for the granting of decree of divorce or dissolution of civil partnership.

Issues relating to financial provision may not be resolved in proceedings for separation and the granting of a judicial separation does not affect matters of status. The Scottish Law Commission recommended abolition of this remedy in its 1992 Report on Family Law (Scot Law Com No 135, para 12.19), but that recommendation was not implemented.

In practice, many couples who separate reach agreement on financial matters before divorce/ dissolution. These agreements are binding and usually contain a clause in which each member of the couple relinquishes their rights in succession on the death of the other.