Back to the Scottish Parliament Business Bulletin No.180/2005: Friday 9 December 2005
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Section G – Bills

New amendments to Bills lodged on 8 December 2005

Family Law (Scotland) Bill – Stage 3

Section 2A

Pauline McNeill

6 In section 2A, page 2, line 21, at end insert—

<(3) Nothing in subsection (1) shall affect the application of the rule in relation to cohabitation with habit and repute where—

(a) the cohabitation with habit and repute began after commencement; and

(b) the conditions in subsection (4) are met.

(4) Those conditions are—

(a) that the cohabitation with habit and repute was between two persons, one of whom, (“A”), is domiciled in Scotland;

(b) that the person with whom A was cohabiting, (“B”), died domiciled in Scotland;

(c) that, before the cohabitation with habit and repute began, A and B purported to enter into a marriage (“the purported marriage”) outwith the United Kingdom;

(d) that, in consequence of the purported marriage, A and B believed themselves to be married to each other and continued in that belief until B’s death;

(e) that the purported marriage was invalid under the law of the place where the purported marriage was entered into; and

(f) that A became aware of the invalidity of the purported marriage only after B’s death.>

Section 5

Cathy Jamieson

7 In section 5, page 3, line 15, after <“sale”> insert <, where it first occurs,>

Section 10

Cathy Jamieson

8 In section 10, page 6, line 8, leave out <“18 months”> and insert <“one year”>

Cathy Jamieson

9 In section 10, page 6, line 9, leave out <“three”> and insert <“two”>

Section 13A

Mike Rumbles

10 Leave out section 13A

After section 15

Cathy Jamieson

11 After section 15, insert—

<Special destinations: revocation on divorce or annulment

Special destinations: revocation on divorce or annulment

(1) Subsections (2) and (3) apply where—

(a) heritable property is held in the name of—

(i) a person (“A”) and A’s spouse (“B”) and the survivor of them;

(ii) A, B and another person and the survivor or survivors of them;

(iii) A with a special destination on A’s death, in favour of B;

(b) A and B’s marriage is terminated by divorce or annulment; and

(c) after the divorce or annulment A dies.

(2) In relation to the succession to A’s heritable property (or part of it) under the destination, B shall be deemed to have failed to survive A.

(3) If a person has in good faith and for value (whether by purchase or otherwise) acquired title to the heritable property, the title so acquired shall not be challengeable on the ground that, by virtue of subsection (2), the property falls to the estate of B.

(4) Subsection (2) shall not apply if the destination specifies that B is to take under the destination despite the termination of A and B’s marriage by divorce or annulment.>

Section 15B

Cathy Jamieson

12 In section 15B, page 10, line 38, leave out from beginning to <conception”> in line 9 on page 11 and insert—

<( ) in subsection (4), in paragraph (a), for the words from “this”, where it first occurs, to the end of that paragraph there shall be substituted “section 15B of the Family Law (Scotland) Act 2005 (asp 00)”;>

Cathy Jamieson

13 In section 15B, page 11, line 15, leave out <After paragraph (c) of> and insert <In>

Cathy Jamieson

14 In section 15B, page 11, line 16, after <provisions)> insert—

<(a) in paragraph (c), at the end, there shall be inserted “(including, in particular, the competence of bringing an action of declarator of legitimacy, legitimation or illegitimacy in connection with such succession or devolution)”; and

(b) after that paragraph,>

Section 17B

Cathy Jamieson

15 Leave out section 17B

Section 18

Fergus Ewing

16 In section 18, page 13, line 28, after <wife> insert <for at least one year>

Fergus Ewing

17 In section 18, page 13, line 30, at end insert <for at least one year>

Cathy Jamieson

18 In section 18, page 13, line 31, leave out from <is> to end of line 35 and insert <(“A”) is a cohabitant of another person (“B”), the court shall have regard to—

(a) the length of the period during which A and B have been living together (or lived together);

(b) the nature of their relationship during that period; and

(c) the nature and extent of any financial arrangements subsisting, or which subsisted, during that period.>

Fergus Ewing

19 In section 18, page 13, line 33, after second <the> insert <cohabiting>

Fergus Ewing

20 In section 18, page 13, line 33, after <relationship> insert <(and it shall be presumed, unless the contrary is shown, that if the couple are (or were) living together for less than one year then the person is not a cohabitant)>

Fergus Ewing

21 In section 18, page 13, line 35, after <the> insert <cohabiting>

Section 21

Fergus Ewing

22 In section 21, page 14, line 30, leave out <after having regard to the matters mentioned in subsection (3)> and insert <if it considers that either of the matters referred to in subsection (3) applies>

Fergus Ewing

23 In section 21, page 14, line 39, leave out from beginning to end of line 17 on page 15 and insert—

<( ) that, because of the cohabitation ending, the applicant is suffering, or will suffer, financial hardship and that the making of an order under subsection (2) would be necessary to relieve the applicant of that hardship;

( ) that the welfare of any relevant child is, or will be, endangered as a result of the cohabitation ending and that the making of an order under subsection (2) would be necessary to protect the welfare of the child.>

Fergus Ewing

24 In section 21, page 15, leave out lines 33 to 40

After section 26A

Cathy Jamieson

25 After section 26A, insert—

<Amendments of Adults with Incapacity (Scotland) Act 2000

Termination of power of attorney on separation, dissolution or nullity of civil partnership

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)”>.

Schedule 1

Cathy Jamieson

26 In schedule 1, page 26, line 11, after <“sale”> insert <, where it first occurs,>

Cathy Jamieson

27 In schedule 1, page 28, line 14, leave out <“one year”> and insert <“18 months”>

Cathy Jamieson

28 In schedule 1, page 28, line 15, leave out <“two”> and insert <“three”>

Cathy Jamieson

29 In schedule 1, page 28, line 28, at end insert—

<After section 124 there shall be inserted—

Special destinations: revocation on dissolution or annulment

124A Special destination: revocation on dissolution or annulment

(1) Subsections (2) and (3) apply where—

(a) heritable property is held in the name of—

(i) a person (“A”) and A’s civil partner (“B”) and the survivor of them;

(ii) A, B and another person and the survivor or survivors of them;

(iii) A with a special destination on A’s death, in favour of B;

(b) A and B’s civil partnership is terminated by dissolution or annulment; and

(c) after the dissolution or annulment A dies.

(2) In relation to the succession to A’s heritable property (or part of it) under the destination, B shall be deemed to have failed to survive A.

(3) If a person has in good faith and for value (whether by purchase or otherwise) acquired title to the heritable property, the title so acquired shall not be challengeable on the ground that, by virtue of subsection (2), the property falls to the estate of B.

(4) Subsection (2) shall not apply if the destination specifies that B is to take under the destination despite the termination of A and B’s civil partnership by dissolution or annulment.”>

Schedule 2

Cathy Jamieson

30 In schedule 2, page 29, line 25, at end insert—

<The Land Registration (Scotland) Act 1979 (c.33)

In subsection (3) of section 12 of the Land Registration (Scotland) Act 1979 (Keeper’s indemnity in respect of loss), at the end there shall be added—

“(r) the loss is suffered by the estate of a deceased former spouse in respect of heritable property falling to it where the title to the property or to any interest in the property has been acquired by another person and is unchallengeable by virtue of section (Special destinations: revocation on divorce or annulment) of the Family Law (Scotland) Act 2005 (asp 00);

(s) the loss is suffered by the estate of a deceased former civil partner in respect of heritable property falling to it where the title to the property or to any interest in the property has been acquired by another person and is unchallengeable by virtue of section (Special destinations: revocation on dissolution or annulment) of the Civil Partnership Act 2004 (c.33).”>

Schedule 3

Cathy Jamieson

31 In schedule 3, page 31, line 9, at end insert—

<The Sheriff Courts (Scotland) Act 1907 Section 38B. (c.51)>

Cathy Jamieson

32 In schedule 3, page 31, line 35, leave out <and subsection (3)> and insert <, subsection (3) and, in subsection (4), paragraph (c)>

Cathy Jamieson

33 In schedule 3, page 31, line 38, at end insert—

<The Court of Session Act 1988 (c.36) Section 19.>

Cathy Jamieson

34 In schedule 3, page 32, line 11, at end insert—

<Section 129.>

Contents An A B C D E F G H I J