A “wholesale review of Scottish family law” may be needed in the future according to a report from the Scottish Parliament’s Justice Committee.

The report from the group comes following some concerns expressed about the effectiveness of the Family Law (Scotland) Act 2006. As part of the investigation into the effectiveness of the Family Law Act, the committee took feedback and information from representatives of different family groups and representatives as part of the scrutiny of the current state of affairs in family law matters.

Focus on Cohabitation and Parental Rights

The review into family life in Scotland focussed significantly on cohabitation and parental rights and responsibilities, with the committee hearing some concerns about the current set up of family law in Scotland.  With cohabitation being the fastest growing type of family type in the UK, many experts and family groups had expressed concern that the current laws in place did not do enough to protect those who were living together but were not married.

Such was the findings of the report that it is now recommended that the next Justice Committee analyse some of the issues with the law using the results from the current investigation as a start off point.

Justice Committee Convener Christine Grahame MSP said: “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, focussed as much on how the law is applied, and the mechanism used to resolve disputes, as on what the law says.   

“In particular, we consider that cases would benefit from increased use of mediation and, where possible, being heard by specialist family law sheriffs.”

She added: “We heard concerns that the legislation is insufficiently clear and that lawyers sometimes struggle to tell separating couples what they can actually expect from the provisions.

“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.

“By necessity, this has been a brief examination of the Family Law (Scotland) Act 2006, and it offers a snapshot of stakeholders’ opinions ten years on.    

“This short report is, in effect, a report to our successors on the next justice committee.  It sets out views on aspects of family law covered under the 2006 Act they may wish to consider in more depth in the next session.”

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