Section 22 — Application to court by survivor for provision on intestacy

Part of Family Law (Scotland) Bill: Stage 3 – in the Scottish Parliament at 5:00 pm on 15th December 2005.

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Photo of Pauline McNeill Pauline McNeill Labour 5:00 pm, 15th December 2005

Amendment 47 is designed to ensure that we are clear about how section 22 should be applied by the courts when estates are divided up.

There is no doubt that this is a complicated area—it is probably more complicated than the issues that we have previously discussed. The committee got itself into all sorts of knots trying to understand the provisions. The situation is straightforward if there is only the cohabitant to think about. However, if there are husbands, wives and children in the scenario, it becomes harder to understand how the provisions will work in law. Under section 22(11), debts and liabilities and the rights of the spouse are disposed of first. Normally, the children's legal rights would be disposed of next, leaving the rest to the free estate. However, section 22 gives the sheriff the discretion to consider the existence of other rights when deciding what sum to award to a cohabitant.

Amendment 47 tries to draw out whether the court should be required to take account of the length of the relationship for the purposes of determining whether it is a cohabiting relationship, which it has to do under section 18. The sheriff must take into account the size and nature of the deceased's estate, any benefit received by the survivor and the nature of any other rights and any other matter that the court considers appropriate.

The lesson for all of us is that we need to ensure that our constituents realise the importance of drawing up a will in every case, so that they do not die intestate and can avoid arguments and determine where their estate goes. However, where a will does not exist, we need to be clear. I am not arguing that the length of the relationship per se should be included in section 22, but I want to note where sheriffs are expected to take it into account. Section 22(3)(d) refers to "any other matter". If I am told that sheriffs are meant to consider the length of the relationship under that provision, I will be a lot happier. I realise that the consideration will not always apply, but I am concerned about the sheriff having total discretion in the situation in which the cohabitation was short and there are children. I would be concerned if no account was taken of the length of the relationship and a large capital sum was awarded to the cohabitant, but the children received nothing from the estate.

Amendment 48 seeks to avoid doubt. Once the sheriff has done all that, there is the Succession (Scotland) Act 1964, which states the order in which the free estate has to be divided, starting with husbands and wives, children, brothers and sisters and so on. Given that cohabitants are not mentioned in the 1964 act, I want to ensure that any decision that is taken by a sheriff under section 22 cannot be challenged using the 1964 act. I think that the answer from the Executive will be that that is not the intention, which is what I want to hear for the purposes of clarity. It would be wrong if, in giving discretion to the sheriff, we enabled children and brothers and sisters who were concerned about the decision to use the 1964 act. I should make clear that I understand that the legal rights concerned are common-law rights and that we are talking about the remainder of the estate and nothing else. If I hear the answers that I am looking for, I will not press amendments 47 and 48.

I move amendment 47.