A "wholesale review" of how family law in Scotland operates may be required, according to a report published today by the Scottish Parliament’s Justice Committee.
The MSPs took the view after conducting post-legislative scrutiny of aspects of the Family Law (Scotland) Act 2006, hearing evidence from academics, legal practitioners and representatives of different interest groups.
Focusing on cohabitation and parental rights and responsibilities, they heard a range of concerns about current provisions, and recommend that the next Justice Committee use the report as a starting point when considering its future work in this area.
Committee convener Christine Grahame MSP commented: “Everyone agrees that the welfare of children should be of paramount importance within family law. However, it appears that the current legislative framework can give rise to adversarial disputes which can make a bad situation worse. Whether that is down to how the law is framed or how it is applied is open to debate.
“Overall, though, it is clear that the way in which the Scottish legal system handles family law cases involving children raises strong and conflicting views.
“With the main legislation on child law now arguably beginning to show its age, it may be time for a wholesale review, focused as much on how the law is applied, and the mechanism used to resolve disputes, as on what the law says."
The report also considers that cases would benefit from increased use of mediation and, if necessary, from being heard by specialist family law sheriffs.
On cohabitation, Ms Grahame said the new rights for cohabitants in the Act had been welcomed, but concerns had been raised "that the legislation is insufficiently clear and that lawyers sometimes struggle to tell separating couples what they can actually expect from the provisions". The report further suggests that limiting claims to a financial award "may be too prescriptive".
The report also records that one of the main criticisms was the short six month time limit for claiming financial provision following the death of the claimant's cohabitant, but notes that a review is taking place as part of the wider review of succession law.
Ms Grahame added: “More generally, we have heard of confusion from the general public about the state of the law on adult relationships – cohabitation, marriage and civil partnerships, which have changed significantly in recent years. It has been argued that changes have been piecemeal to the extent that the law now lacks coherency and purpose."
The committee had only been able to conduct a brief examination of the Act and its report offered a "snapshot" of stakeholders’ opinions. It was, in effect, "a report to our successors on the next Justice Committee. It sets out views on aspects of family law covered in the 2006 Act they may wish to consider in more depth in the next session”.