(1) Subsection (2) applies if the defender—
(a) is entitled to occupy a family home;
(b) is permitted by a third party to occupy it; or
(c) has, by virtue of section 18(1), occupancy rights in it.
(2) Except where subsection (3) applies, the court may not grant a domestic interdict prohibiting the defender from entering or remaining in the family home.
(3) This subsection applies if—
(a) the interdict is ancillary to an exclusion order; or
(b) an order under section 18(1) granting or extending occupancy rights is recalled.”.
(1) Section 1 of the Protection from Abuse (Scotland) Act 2001 (asp 14) (attachment of power of arrest to interdict) shall be amended as follows.
(2) After subsection (1) there shall be inserted—
“(1A) In the case of an interdict which is—
(a) a matrimonial interdict (as defined by section 14(2) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (c. 59)) which is ancillary to—
(i) an exclusion order within the meaning of section 4(1) of that Act; or
(ii) an interim order under section 4(6) of that Act; or
(b) a relevant interdict (as defined by section 113(2) of the Civil Partnership Act 2004 (c. 33)) which is ancillary to—
(i) an exclusion order within the meaning of section 104(1) of that Act; or
(ii) an interim order under section 104(6) of that Act,
the court must, on an application under subsection (1), attach a power of arrest to the interdict.”.
(3) In subsection (2), at the beginning there shall be inserted “In the case of any other interdict,”.
Schedule 1, which contains amendments of the Civil Partnership Act 2004 (c. 33), shall have effect.
(1) Section 18 of the 1981 Act (occupancy rights of cohabiting couples) shall be amended in accordance with subsections (2) and (3).
(2) In subsection (1)—
(a) after “wife” there shall be inserted “or two persons of the same sex are living together as if they were civil partners”;
(b) after “wife (”, there shall be inserted “in either case”; and
(c) for “man and the woman” there shall be substituted “entitled partner and the non-entitled partner”.
(3) In subsection (2)—
(a) for “a man and a woman” there shall be substituted “two persons”; and
(b) in paragraph (b), for the words from “are” to the end of that paragraph there shall be substituted “is any child—
(i) of whom they are the parents; or
(ii) who they have treated as a child of theirs.”.
(1) The Damages (Scotland) Act 1976 (c. 13) shall be amended in accordance with subsections (2) to (5).
(2) In subsection (4) of section 1 (rights of relatives of deceased person), at the beginning there shall be inserted “Subject to subsection (4A),”.
(3) After that subsection, there shall be inserted—
“(4A) Notwithstanding section 10(2) of, and Schedule 1 to, this Act, no award of damages under subsection (4) above shall be made to a person related by affinity to the deceased.
(4B) In subsection (4A), a “person related by affinity to the deceased” includes—
(a) a stepchild, step-parent, stepbrother or stepsister of the deceased; and
(b) any person who was an ascendant or descendant of any of the step-relatives mentioned in paragraph (a).”.
(4) In subsection (2) of section 10 (interpretation), for the words from “sub-paragraph” to “or (c)”, there shall be substituted “any of sub-paragraphs (a) to (cc)”.
(5) In paragraph 1 of Schedule 1 (definition of relative)—
(a) in sub-paragraph (c), for “paragraph” there shall be substituted “sub-paragraph”;
(b) after that sub-paragraph, there shall be inserted—
“(ca) any person not falling within sub-paragraph (b) above who accepted the deceased as a child of the person’s family;
(cb) any person who—
(i) was the brother or sister of the deceased; or
(ii) was brought up in the same household as the deceased and who was accepted as a child of the family in which the deceased was a child;
(cc) any person who was a grandparent or grandchild of the deceased;”;
(c) in sub-paragraph (d), after “person” there shall be inserted “not falling within sub-paragraph (b) or (cc) above”; and
(d) in sub-paragraph (e), after “person” there shall be inserted “not falling within sub-paragraph (cb)(i) above”.
Section 24 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (termination of continuing or welfare power of attorney) shall be amended as follows—
(a) after subsection (1), there shall be inserted—
“(1A) If the granter and the continuing or welfare attorney are in civil partnership with each other the power of attorney shall, unless the document conferring it provides otherwise, come to an end on the granting of—
(a) a decree of separation of the partners in the civil partnership;
(b) a decree of dissolution of the civil partnership;
(c) a declarator of nullity of the civil partnership.”;
(b) in subsection (4), after “(1)” there shall be inserted “or subsection (1A)”.
(1) The Domicile and Matrimonial Proceedings Act 1973 (c. 45) shall be amended in accordance with subsections (2) and (3).
(2) In section 7 (jurisdiction of Court of Session in certain consistorial causes)—
(a) in subsection (1)—
(i) for “(2) to (8)” there shall be substituted “(2A) to (10)”; and
(ii) at the end there shall be inserted—
“(aa) an action for declarator of recognition, or non-recognition, of a relevant foreign decree.”;
(b) in subsection (3A), after “marriage”, where it first occurs, there shall be inserted “or for declarator of recognition, or non-recognition, of a relevant foreign decree”; and
(c) after subsection (8) there shall be added—
“(9) In this section, “relevant foreign decree” means a decree of divorce, nullity or separation granted outwith a member state of the European Union.
(10) References in subsection (3A) to a marriage shall, in the case of an action for declarator of recognition, or non-recognition, of a relevant foreign decree, be construed as references to the marriage to which the relevant foreign decree relates.”.
(3) In section 8 (jurisdiction of sheriff court in certain consistorial causes)—
(a) in subsection (1)—
(i) for “(4)” there shall be substituted “(6)”;
(ii) the words from “an” to the end shall become paragraph (a) of that subsection; and
(iii) at the end there shall be added “and
(b) an action for declarator of recognition, or non-recognition, of a relevant foreign decree.”;
(b) in subsection (2), after “divorce” there shall be inserted “or for declarator of recognition, or non-recognition, of a relevant foreign decree”; and
(c) after subsection (4) there shall be added—
“(5) In this section, “relevant foreign decree” has the meaning given by section 7(9).
(6) References in subsection (2) to a marriage shall, in the case of an action for declarator of recognition, or non-recognition, of a relevant foreign decree, be construed as references to the marriage to which the relevant foreign decree relates.”.
(1) Subject to the Foreign Marriage Act 1892 (c. 23), the question whether a marriage is formally valid shall be determined by the law of the place where the marriage was celebrated.
(2) The question whether a person who enters into a marriage—
(a) had capacity; or
(b) consented,
to enter into it shall, subject to subsections (3) and (4) and to section 50 of the Family Law Act 1986 (c. 55) (non-recognition of divorce or annulment in another jurisdiction no bar to remarriage), be determined by the law of the place where, immediately before the marriage, that person was domiciled.
(3) If a marriage entered into in Scotland is void under a rule of Scots internal law, then, notwithstanding subsection (2), that rule shall prevail over any law under which the marriage would be valid.
(4) The capacity of the person to enter into the marriage shall not be determined under the law of the place where, immediately before the marriage, the person was domiciled in so far as it would be contrary to public policy in Scotland for such capacity to be so determined.
(5) If the law of the place in which a person is domiciled requires a person under a certain age to obtain parental consent before entering into a marriage, that requirement shall not be taken to affect the capacity of a person to enter into a marriage in Scotland unless failure to obtain such consent would render invalid any marriage that the person purported to enter into in any form anywhere in the world.
(1) Any question in relation to the rights of spouses to each other’s immoveable property arising by virtue of the marriage shall be determined by the law of the place in which the property is situated.
(2) Subject to subsections (4) and (5), if spouses are domiciled in the same country, any question in relation to the rights of the spouses to each other’s moveable property arising by virtue of the marriage shall be determined by the law of that country.
(3) Subject to subsections (4) and (5), if spouses are domiciled in different countries then, for the purposes of any question in relation to the rights of the spouses to each other’s moveable property arising by virtue of the marriage, the spouses shall be taken to have the same rights to such property as they had immediately before the marriage.
(4) Any question in relation to—
(a) the use or occupation of a matrimonial home which is moveable; or
(b) the use of the contents of a matrimonial home (whether the home is moveable or immoveable),
shall be determined by the law of the country in which the home is situated.
(5) A change of domicile by a spouse (or both spouses) shall not affect a right in moveable property which, immediately before the change, has vested in either spouse.
(6) This section shall not apply—
(a) in relation to the law on aliment, financial provision on divorce, transfer of property on divorce or succession;
(b) to the extent that spouses agree otherwise.
(7) In this section, “matrimonial home” has the same meaning as in section 22 of the 1981 Act.
Subject to the Maintenance Orders (Reciprocal Enforcement) Act 1972 (c. 18), a court in Scotland shall apply Scots internal law in any action for aliment which comes before it.
Any question arising as to the effect on a person’s status of—
(a) the person’s parents being, or having been, married to each other; or
(b) the person’s parents not being, or not having been, married to each other,
shall be determined by the law of the country in which the person is domiciled at the time at which the question arises.
It shall not be competent to raise an action for declarator of freedom and putting to silence.
In this Act—
“the 1976 Act” means the Divorce (Scotland) Act 1976 (c. 39); and
“the 1981 Act” means the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (c. 59).
(1) The Scottish Ministers may by order made by statutory instrument make such consequential, transitional or saving provision as they consider appropriate for the purposes of, in consequence of or for giving full effect to this Act or any provision of it.
(2) An order under subsection (1) may modify any enactment (including this Act).
(3) The power conferred by subsection (1) on the Scottish Ministers to make orders may be exercised so as to make different provision for different purposes.
(4) A statutory instrument containing an order under subsection (1) shall, subject to subsection (5), be subject to annulment in pursuance of a resolution of the Scottish Parliament.
(5) A statutory instrument containing an order under subsection (1) which includes provision modifying an Act or an Act of the Scottish Parliament shall not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.
(1) Schedule 2 (which contains minor amendments and amendments consequential on the provisions of this Act) shall have effect.
(2) The enactments mentioned in the first column in schedule 3 (which include enactments that are spent) are repealed to the extent set out in the second column.
(1) This Act may be cited as the Family Law (Scotland) Act 2006.
(2) The provisions of this Act (except this section) shall come into force on such day as the Scottish Ministers may by order made by statutory instrument appoint.
(3) An order under subsection (2) may—
(a) appoint different days for different purposes; and
(b) include such transitional or saving provision as the Scottish Ministers consider necessary or expedient in connection with the coming into force of the provisions brought into force.