Consequences Of Marriage And Civil Partnership

Question 1

Johnstone, petitioner 1899

Answer 1

Any person in Scotland can call themselves what they please, without leave of the court but in practice a name change should be recorded with the registrar general

Question 2

Horsburgh v horsburgh 1949

Answer 2

Wife successfully sued husband in contract for the cost of furniture and furniture in the family home after the couple split up
Spouses have the same contractural capacity and can sue each other in contract

Question 3

S v HM Advocate 1989

Answer 3

This case finally rejected the idea that a husband can legitimately rape his wife

Question 4

Pyatt v pyatt 1966

Answer 4

Winnings of a lottery ticket bought with housekeeping allowance belongs to both spouses/civil partners in equal shares
Court ruled that winnings be shared equally between both parties
(Special rules for housekeeping allowances e.g. joint bank account for bills)

Question 5

Millar v millar 1940

Answer 5

Old position where one spouse was the sole tennant of family home he or she could evict the other party to the marriage (abolished by Matrimonial Homes (Family Protection) (Scotland) Act 1981)

Question 6

Bell v bell 1983

Answer 6

(Initially 1981 act interpreted restrictively)
Seeking an exclusion order to exclude husband from matrimonial home
Led in evidence that husband was physically and sexually violent
Lower courts granted interdict to prevent husband molesting wife, also made exclusion ordrnto get him out of the home
Court of session reversed this on appeal
The test is whether exclusion order is necessary to protect applicants health
It is very high and severe test
Because an interdict also put in place then an exclusion order as well was not necessary

Question 7

Mcafferty v mcafferty 1986

Answer 7

(Courts now adopt more liberal approach to 1981 act on exclusion orders)
Order was granted and upheld
Accusations made against husband- physically and psychological abuse directed at wife and daughters, incest, theft, adultery
Court was satisfied that the exclusion order was nesessary to protect the wife and daughters in this case
The court should ask itself 4 questions when faced with exclusion application:
What is nature and quality of alleged conduct?
Is conduct likely to be repeated if cohabitation continues?
Has the conduct been or likely to be injurious to the applicant or any child in the home?
If so, is the order necessary to protect applicant or child to prevent abuse from taking place?