Adult Relations: Legal Effects of Marriage (Scotland)

Obligation to support spouse/civil partner financially: Aliment
1. Who owes a duty?
  1. husband to wife
  2. wife to husband (see s.4 Marriage and CP Act 2014 for interpretation)
  3. a partner in CP to other partner
  4. Family Law (Scotland) Act 1985 s.1(1)(c)&(d) concerning children
2. Amount?
  1. Family Law (Scotland) Act 1985 s.1(2) - the obligation of aliment is an obligation to provide such support as is reasonable in the circumstance, having regard to s.4
3. Reasonable amount?
  1. Family Law (Scotland) Act 1985 s.4
    1. s.4(3) the court
      1. (a) may, if it thinks fit, take account of any support ... given by the defender to any person whom he maintains as a dependant in his household
      2. (b) shall not take account of any conduct of a party unless manifestly inequitable to leave it out of account
      3. see s.27 for interpretation
  2. s.4(1) the court shall, subject to ss.(3) have regard to
    1. (a) the needs and resources of the parties
      1. (b) the earning capacities of the parties
        (c) generally to all the circumstances of the case
4. Actions and Defences
  1. Family Law (Scotland) Act 1985
    1. s.2(1) A claim ... may be made, against any person owing an obligation of aliment, in the Court of Session or the Sheriff Court
    2. (6) It shall be competent to bring an action notwithstanding that the [pursuer] is living in the same household as the defender
    3. (8) It shall be a defence to an action [except for the pursuer <16] that the defender is making an offer, which it is reasonable to ... accept, to receive that person into his household and to fulfil the obligation of aliment
5. Orders for Aliment
  1. Family Law (Scotland) Act 1985
    1. s.3(1) Court may, if it thinks fit, grant decree in an action for aliment and has power to
      1. (a) order making of periodical payments, whether for a definite or indefinite period or until happening of a specified event
      2. (b) order alimentary payments of occasional or special nature
    2. s.3(2) no lump sum available
Moveable Property
1. Harper v Adair 1945 JC 21
  1. implied ownership from possession of property?
    1. presumed ownership lost at end of relationship as with possession?
      1. No presumption to arise in terms of marriage
2. Family Law (Scotland Act 1985
  1. s.24 - subject to the provisions of any enactment (including this Act), marriage or civil partnership shall not of itself affect
    1. (a) the rights of the parties to marriage or partners in civil partnership in relation to their property
    2. (b) the legal capacity of those parties or partners
3. Gifts
  1. to one or both of the parties - general rule of property law applies
    1. McDonald v McDonald 1953 SLT (Sh Ct) 36
      1. A husband separated from his wife raised an action against her for delivery of certain items. The items had been bought with £20 given as a wedding present to both husband and wife by his mother
      2. held that the items were the joint property of the parties (gift had been given to both parties)
  2. Between the parties - general rule of property law applies
    1. Jamieson v McLeod (1880) 7 R 1131
      1. presumption against donation in property law
        generally easy to rebut presumption in terms of marriage
        concerning gifts between spouses
  3. Other Moveables
    1. s.25 Family Law (Scotland) Act 1985 - household goods (presumption of right to equal shares)
    2. s.26 Family Law (Scotland) Act 1985 - housekeeping allowance (presumption of right to equal shares)
    3. Bank Accounts
      1. Smith v Smith 1933 SC 701
        partners not restricted in the type of evidence they may bring to substantiate a claim on the exclusion of money and securities from presumption of equal shares in household goods
        Husband owner of savings made by wife from money received as housekeeping allowance as donation cannot be inferred due to the fact that the money has been expected to be used to run the home
      2. Preston v Preston 1950 SC 253
        held that savings from a wife's housekeeping allowance belonged to the husband because the wife was simply acting as his agent
      3. Pyatt v Pyatt SLT (Notes) 73
        housekeeping allowance
        Husband claimed payment from wife of the sum of £7K being one half of a prize of £14K which the defender won in November 1964 from a football results forecast
        Pursuer argued this had been a joint venture, and provided a contrary argument that the £14K total was money derived from the housekeeping allowance and was therefore entitled to an equal share
        no contract between spouses as to the allocation of winnings?
        no averments of a verbal agreement, but not safe to dismiss pursuers case as irrelevant
        money was neither "money derived from any allowance" nor "property acquired out of such money" as per s.1 of the Married Women's Property Act 1964
Occupancy Rights
1. Terminology
  1. s.1 Matrimonial Homes (Family Protection) (Scotland) Act 1981
    1. ss.(1) where, apart from the provisions of this Act, one spouse is entitled, or permitted by a third party, to occupy a matrimonial home (an "entitled spouse") and the other spouse is not so entitled or permitted (a "non-entitled spouse"), the non-entitled spouse shall, subject to the provisions of this Act, have the following rights
      1. (a) if in occupation, a right to continue to occupy the matrimonial home
      2. (b) if not in occupation, a right to enter into and occupy the matrimonial home
      3. (1A) ... without prejudice to their generality, the right to do so together with any child of the family
2. Occupancy rights in what?
  1. s.22 Matrimonial Homes (Family Protection) (Scotland) Act 1981
    1. In this Act "matrimonial home" means any house, caravan, houseboat, or other structure which has been provided or has been made available by one or both of the spouses as, or has become, a family residence
      1. but does not include a residence provided or made available by a person for one spouse to reside in, whether with any child of the family or not, separately from the other spouse
3. Application for Occupancy Rights
  1. s.3 Matrimonial Homes (Family Protection) (Scotland) Act 1981
    1. ss.(1) a court can (a) declare (b) enforce (c) restrict (d) regulate and/or (e) protect occupancy rights
    2. ss.(3) court shall grant an application under (a) if it appears that the application relates to a family home; and if (b) to (e) may make such order as appears to it to be just and reasonable having regard to all the circumstances of the case including
      1. (a) conduct of the partners to each other or otherwise
        (b) respective needs and financial resources of partners
        (c) needs of any child of the family
        (d) extent to which family home ... is used in connection with trade, business or profession
        (e) whether entitled partner offers to make available to non-entitled partner suitable alternative accomodation
4. Subsidiary and Consequential Rights
  1. s.2 Matrimonial Homes (Family Protection) (Scotland) Act 1981
    1. Making payments owed by entitled spouse e.g. rent, mortgage etc.
      1. Carry out essential and non-essential repairs
        Have court apportion expenditure
5. Exclusion Orders
  1. s.4 Matrimonial Homes (Family Protection) (Scotland) Act 1981
    1. ss.(2) subject to ss.(3) the court shall make an exclusion order if it appears ... that the making of the order is necessary for the protection of the applicant or any child of the family from any conduct or threatened or reasonably apprehended conduct of the non-applicant spouse which is or would be injurious to the physical or mental health of the applicant or child
      1. ss.(3) the court shall not make an exclusion order if it appears to the court that the making of the order would be unjustified or unreasonable
        (a) having regard to all the circumstances of the case
        (b) where the matrimonial home (i) is or is part of an agricultural holding (ii) is let ... by an employer as an incident of employment
6. Courts Reluctancy at First?
  1. purpose of 1981 Act to protect people in difficult family circumstances BUT made a fundamental change tp property law in that the owner of property could be excluded from (usually) his home in favour of a non-owner
    1. Bell v Bell 1983 SC 182
    2. Smith v Smith 1983 SLT 275
    3. In both cases it was indicated that an exclusion order should not be made if a matrimonial interdict prohibiting the molestation of the applicant would be a sufficient enough protection
7. Lord Dunpark in McCafferty
  1. "in my opinion the words of s.4(2) are clear and do not require interpretation or gloss"
  2. The court must consider at least four questions:
    1. 1. What is the nature and quality of the alleged conduct?
    2. 2. Is the court satisfied that the conduct is likely to be repeated if cohabitation continues?
    3. 3. Has conduct been or, if repeated, would it be injurious to physical or mental health of the applicant spouse or any child of the family?
    4. 4. If so, is the order sought necessary for the future protection of physical or mental health of the applicant or child?
8. Duration of ss.(3) and ss.(4) orders
  1. s.5(1) the court may, on application of either spouse, vary or recall any oder made by it under s.3 or s.4 of this Act, but ... any such order shall, unless previously so varied or recalled, cease to have effect
    1. (a) on the termination of the marriage
    2. (b) subject to ss.6(1) of this Act, where there is an entitled and non-entitled spouse, on the entitled spouse ceasing to be an entitled spouse in respect of the matrimonial home to which the order relates
    3. (c) where both spouses are entitled, or permitted by a third party, to occupy the matrimonial home, on both spouses ceasing to be so entitled or permitted
9. Powers of Arrest
  1. s.1 Protection from Abuse (Scotland) Act 2001
    1. power of arrest must be attached to an exclusion order if an applicant asks
      1. for any other interdict the power of arrest may be attached if the court is satisfied this is necessary to protect the applicant from the risk of abuse
10. s.14 Matrimonial Homes (Family Protection) (Scotland) Act 1981
  1. WARNING
    1. interdict may be sought despite living together as husband and wife or as civil partners
      1. BUT s.14 cannot be used on its own
        "no s.14 interdict" Tattersall v Tattersall
11. Other Points
  1. Matrimonial Homes (Family Protection) (Scotland) Act 1981
    1. s.6 - selling house to a third party
      1. s.9 - where both parties have title
        s.13 - transfer of tenancy
        s.19 - rights in occupancy in "division and sale"
        s.18 - Cohabitants

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Adult Relations: Legal Effects of Marriage (Scotland)

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