Family law
38.Paragraphs 1 to 4 of schedule 2 amend various family law acts, principally so that they accommodate different sex civil partnerships and the possibility of reproduction between civil partners.
Paragraph 1: Modification of the Registration of Births, Deaths and Marriages (Scotland) Act 1965
39.Paragraph 1 of schedule 2 amends Part 2 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (“the 1965 Act”). Part 2 of the 1965 Act provides for the registration of births. Section 13 sets out the particulars of birth to be registered.
40.Section 14 specifies which persons have a duty to give those particulars of birth, including certain fathers. Section 14(5) excludes fathers who are not married to the mother and have not been married to her since the child’s conception. It would therefore not apply the duty to a father who had been in a civil partnership with the mother. Paragraph 1(2) of schedule 2 of the Bill amends section 14 to limit that exclusion to fathers who are neither married to nor in a civil partnership with the mother and have neither been married to nor in a civil partnership with her since the child’s conception. The overall effect of section 14, once amended, is to apply the duty to a father who has been either married to or in a civil partnership with the mother at some point since the child’s conception.
41.Section 18 provides that the name of a child’s father is only to be entered in the register of births if the father is married to the mother, or has been married to her since the child’s conception, or if certain conditions are satisfied (generally requiring the mother to ask for the father’s name to be entered). The effect of the amendment to section 18 made by paragraph 1(3) of schedule 2 of the Act is to require the name of a child’s father to be entered in the register if the father is in a civil partnership with the mother, or has been in a civil partnership with her since the child’s conception.
42.Section 20 of the 1965 Act provides for re-registration in certain cases, including where the register suggests that a person was born at a time when the person’s parents were not married but they have subsequently done so. Paragraph 1(4) of schedule 2 amends section 20 and extends this case to include the case where a person’s parents subsequently enter into a civil partnership.
Paragraph 2: Modification of the Family Law (Scotland) Act 1985
43.Paragraph 2 of schedule 2 amends the Family Law (Scotland) Act 1985 (“the 1985 Act”). Section 9 of the 1985 Act sets down the principles to be applied by the court in deciding what order to make for financial provision on divorce or dissolution. Section 9(1)(c) of the 1985 Act provides that the economic burden of caring for certain children should be shared equally between the parties.
44.In the case of marriage, section 9(1)(c)(i) provides that it is any “child of the marriage” under the age of 16 that is taken into account. Section 27 of the 1985 Act states that the expression “child of the marriage” includes a child (other than a child who has been boarded out with the parties, or one of them, by a local or other public authority or a voluntary organisation) who has been accepted by the parties as a child of the family.
45.In the case of civil partnership, section 9(1)(c)(ii), on its face, provides that it is a child under the age of 16 who has been accepted by both partners as a child of the family or in respect of whom the partners are parents by virtue of the Human Fertilisation and Embryology Act 2008 (“the 2008 Act”) that is taken into account.
46.There is therefore an asymmetry between the drafting concerning children of a marriage and that concerning children of a civil partnership. The Act takes the opportunity to remedy that asymmetry by aligning the drafting treatment of each. This is possible given that both marriage and civil partnership will now be available to both same sex and different sex couples.
47.The Act also takes the opportunity to remove references to the deeming provisions of the 2008 Act. Like those who adopt, it goes without saying that those who are parents under the 2008 Act, are parents for the purposes of the 1985 Act.
48.Paragraph 2(2) of schedule 2 amends section 9(1)(c)(ii) so that it echoes section 9(1)(a)(i) and simply refers to children of the civil partnership under the age of 16.
49.Paragraph 2(3) of schedule 2 amends section 27 of the 1985 Act (interpretation).
50.Sub-paragraph (a) amends the definition of “child” so that it includes a child whether or not its parents have ever been in a civil partnership with one another and that it now refers to “a child of the civil partnership” and makes clear that this includes a child who has been accepted by the parties as a child of the family.
51.Sub-paragraph (b) amends the definition of “family”. The definition currently spells out that “family” in relation to a civil partnership means the members of the civil partnership together with any child accepted by them both as a child of the family. The specific reference to civil partnership is repealed on the basis that those words state the obvious and are therefore unnecessary, particularly in light of the amendment to the definition of “child” in section 27, outlined above.
Paragraph 3: Modification of the Law Reform (Parent and Child) (Scotland) Act 1986
52.Paragraph 3 of schedule 2 amends the Law Reform (Parent and Child) Scotland Act 1986. It amends section 5 (presumptions) so that the conditions under which a man will be presumed to be the father of a child are extended to where he was in a civil partnership with the mother of the child at any time between conception and birth, even in the case of a void or voidable civil partnership.
Paragraph 4: Modification of the Children (Scotland) Act 1995
53.Paragraph 4 of schedule 2 amends the Children (Scotland) Act 1995 (“the 1995 Act”). Section 3 of the 1995 Act sets out the circumstances in which a parent will automatically acquire parental responsibilities and rights in relation to a child.
54.Paragraph 4(2) of schedule 2 amends section 3 of the 1995 Act to extend those circumstances to where the father was in a civil partnership with the mother at the time of the child’s conception or subsequently.
55.Paragraph 4(2) of schedule 2 also amends section 3 of the 1995 Act to make clear that a purported civil partnership will suffice for this purpose, if conditions are met.
56.Paragraph 4(3) of schedule 2 amends the definition of “child of the family” in section 12 of the 1995 Act. That definition defines “child of the family” in two different ways, one relating to the parties to a marriage and the other relating to the parties to a civil partnership. The introduction of different sex civil partnerships affords the opportunity to streamline that definition. Paragraph 4(3) repeals the existing two limbs of the definition in section 12 and replaces it with a single global definition, which captures children of both of the parties or children treated by both of them as a child of the family. The provision is silent as to the means by which the child came to be a child of both of them for the reasons set out above.
