Families and Family Law
Marriage and cohabitation
The area of family law which used to be called the Law of Husband and Wife, has changed significantly in recent years. Civil partnership was introduced in 2004. Marriage, previously strictly heterosexual, was redefined by the Marriage and Civil Partnership (Scotland) Act 2014 to include both same sex and different sex couples. Irregular marriage – marriage by cohabitation with habit and repute - was abolished by the Family Law (Scotland) Act 2006 which, at the same time, introduced new rights for cohabitants to apply for financial provision on the breakdown, through death or otherwise, of their relationship. While marriage statistics continue to show a general decline, weddings have seen something of a revival of interest in Scotland, particularly the growth of humanist and other ‘belief’ weddings.
The law relating to adult or couple relationships is a dynamic area of research and policy in Scotland. In the School of Law we are engaged in a range of work which seeks to inform future development in policy and practice. We submitted evidence to the Justice Committee of the Scottish Parliament as part of their post-legislative review of the Family Law (Scotland) Act 2006 in which we highlighted the need for reform of the law relating to cohabitation.
We are also committed to public engagement in an area of law which is of great personal significance to individuals and their families. During the ESRC Festival of Social Science 2016 we were stallholders for the day at the Barras Social, inviting the public to play ‘The Game of Love’. By spinning the tombola and choosing a ticket – winning or losing – we were aiming to highlight the legal lottery which couples encounter on relationship breakdown depending on whether they were married or cohabiting: (The Legal Rules of) The Game of Love.
Marriage and the regulation of weddings
In the Media
The Herald: Agenda: Scotland leads the way in humanist weddings
Mair, J. (2016) Marriage: a meaningful relationship? In: Eekelaar, J. (ed.) Family Law in Britain and America in the New Century. Brill Nijhoff: Leiden ; Boston, pp. 17-29. ISBN 9789004304918 (doi:10.1163/9789004304925_003)
Mair, J. (2012) Marriage: a lasting legal relationship. In: Mulhern, M.A. (ed.) The Law. Series: Scottish Life and Society: Scottish Life and Society:, 13 (13). John Donald in association with the European Ethnological Research Centre, pp. 704-722. ISBN 9781906566043
Mair, J. (2007) Public ceremony and private belief: the role of religion in the Scots law of marriage.Juridical Review, 2007(4), pp. 280-292
Mair, J. (2003) A sham marriage or a proper wedding?: Hakeem v Hussain.Edinburgh Law Review, 7(3), pp. 404-409. (doi:10.3366/elr.2003.7.3.404)
You can read more about our work on cohabitation through The Cohabitation Hub - https://cohabitationhub.wordpress.com/about/
McCarthy, F. (2011) Progress towards principles on the breakdown of cohabitation: Selkirk v Chisholm. Edinburgh Law Review, 15(2), pp. 270-274. (doi:10.3366/elr.2011.0028)
McCarthy, F. (2009) Rights in succession for cohabitants: Savage v Purches. Edinburgh Law Review, 13(2), pp. 325-329. (doi:10.3366/E1364980909001504)
Financial provision on divorce
Minutes of Agreement and Private Ordering: Investigates the legally binding separation agreements and private ordering in family law in Scotland within the context of the emerging debate around the 'contractualisation' of family law.
Financial provision on divorce in the courts: This project focuses on how the existing statutory framework for financial provision on divorce operates in practice.