The Family Law (Scotland) Act 2006 was passed by the Scottish Parliament at the end of last year and received Royal Assent on 20 January 2006. Of course the Act deals predominantly with matters of family law such as marriage, divorce, cohabitation, aliment and legitimacy but there are some provisions which are relevant to conveyancing practice, in respect of matrimonial homes and special destinations in property titles.
Declaration to replace an affidavit
The rules relating to occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Civil Partnership Act 2004, and the documentation needed in relation to those rights, are changed by the Family Law Act. These provisions are not yet in force, but when they are brought into effect, the current affidavit, which is given on the occasion of a sale, will be replaced with a simple declaration by the seller, which it will be possible to incorporate into the disposition itself. The wording of the declaration is likely to be very similar to the current form of affidavit (which is not a prescribed form in any event), but with the advantage that the statement no longer needs to be sworn or affirmed in the presence of a notary public. Strictly speaking there is no need for the declaration to be witnessed either, although this is probably a practice that is to be recommended, to achieve a self-proving effect (and will be necessary if the declaration is to be registered for preservation). If the declaration is incorporated within the body of the disposition transferring the title then this document is being witnessed in any event.
Affidavits for the purposes of the Matrimonial Homes legislation and the Civil Partnership Act are also required, in the appropriate circumstances, when granting a security over the property. The declaration procedure in the Family Law Act does not apply to these transactions, at least not yet. It is not clear if this is merely an oversight, in which case an amendment to the legislation would be required to allow the declaration procedure to also apply in these circumstances. There would appear to be no good reason to draw a distinction between the two procedures for this purpose.
The Act also provides that affidavits can be signed under a power of attorney.
Special destinations
The Act also makes provision for survivorship destinations in dispositions to be revoked by divorce. At the moment, if the title to a property is held in joint names of two individuals and the survivor of them, further conveyancing is required to effectively cancel or "evacuate" that special destination. Survivorship destinations can also occur in the case of a title in favour of one spouse with provision for it to pass on their death to the other. If the destination is not cancelled by further conveyancing, then even though a couple divorce, the survivor of them would still benefit from the survivorship provision in the title, even if that took effect many years after the parties divorced. The effect of Section 19 of the Family Law Act will be that a survivorship provision will cease to have any effect, upon the divorce of the parties in the title to which it applies. A purchaser in good faith and for value will be protected in the event that he buys the property from the surviving spouse, when in fact the destination had ceased to apply due to the divorce of the parties.
The full text of the Family Law (Scotland) Act 2006 is available from the Office of Public Sector Information website at: http://www.opsi.gov.uk/legislation/scotland/acts2006/asp_20060002_en.pdf