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3-D Vision is Difficult: Dissolution, Death, Divorce

Document Cited authorities 3 Cited in Related
Vincent
Published date01 January 2020
Pages132-137
Date01 January 2020
DOI10.3366/elr.2020.0610
THE SCOTTISH GOVERNMENT IN AN AWKWARD POSITION

It often happens that there is a majority for the view that a particular area of law is unsatisfactory. But a majority against the current law is one thing: a majority in favour of a specific alternative is another. Most people would sign up to the proposition that the current law of succession – both testate and intestate – is unsatisfactory and should be reformed. But agreement as to what the new law should be is hard to attain. Thus the current law, which few like, lives on. Of course, since the debate over reforming the law began in the 1980s there have been some changes, such as the introduction of a possible award to a cohabitant (Family Law (Scotland) Act 2006) and the raft of “technical” changes contained in the Succession (Scotland) Act 2016. But the basic structure of the law, both in testacy and in intestacy, remains what it has been since the Succession (Scotland) Act 1964.

Perhaps the Scottish Government will be able to build general support for specific change. But if – as is likely – it cannot, then the choice is: (i) impose major change without such support, or (ii) do nothing. The Scottish Government has already –alas – chosen the second option as to testate succession, and it may well be feared that the same will happen for intestate succession.

Basic policy choices in this area are difficult. But there are also technical considerations, which, while they cannot dictate what should be the substance of the new law – if there is to be new law – can at least point out constraints that have to be understood if the new law is to be rational and coherent. (And likewise the existing law can be looked at technically to see what existing incoherence there may be.) This paper looks at the relationship of the concept of “matrimonial property” in the context of succession.

 OVERVIEW OF THIS PAPER

The recent Scottish Government consultation1 touches on the possibility of using some sort of idea of “matrimonial” or “community” property idea as a basis for intestate succession where there is a surviving spouse, taking as its starting point the system in operation in the state of Washington,2 and using the divorce rules of Scots law to apply that system to Scots law. But the exposition of the Washington system is brief, and little is said about how it might play out in a Scottish context. The present paper looks at this idea in more detail – but only a little, for a comprehensive examination would have to be on the scale of a doctoral thesis.3 Whilst the focus of this paper is intestacy, the approach taken means that testate succession must also be considered. Finally, what of conclusions, or recommendations? This paper offers none. It seeks only to explore.

 DISSOLUTION OF MARRIAGE: DEATH OR DIVORCE

Marriage is dissolved in two ways: death or divorce. There is no dictate of reason (as the natural lawyers would put it) that the patrimonial consequences of dissolution must be unitary. But at the same time the law on the one should, at least preferably, not operate as if the other did not exist – which is what happens currently in Scotland.

The patrimonial consequences of divorce

The patrimonial consequences of divorce can be complex; the following is a simplified account. The couple's “matrimonial property” is to be “shared fairly” between the spouses.4 That means it should be shared “equally” unless there...

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