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 Stewart Stevenson Stewart Stevenson Scottish National Party 5:00 pm, 15th December 2005

Section 22(6), to which amendment 49 applies, states:

"Any application under this section shall be made before the expiry of the period of 6 months beginning with the day on which the deceased died."

Therefore, on intestacy, a cohabitant must apply within six months of the death. Amendment 49 would change "deceased died" to

"death of the deceased was established".

That seems like a small change, but it covers the situation where the cohabitant is a fisherman whose boat is presumed lost with all on board, but there is still hope. The death might not be established for seven months or seven years. The rights of the surviving cohabitant would be lost because the person would not be legally dead until more than six months from the actual date of death had elapsed. Amendment 49 aims to protect people who are in the position where death is established on a date that is significantly distant from the date on which the death is determined to have happened.

I accept that the minister wrote to the Justice 1 Committee on that point to explain that, notwithstanding what section 22(6) says, everything is okay. I confess to the minister that on that occasion I was unable to award a clear English award for the Executive's response—I did not understand more than three words and they were "Dear Stewart".