law of persons Flashcards
what is the age requirement for testamentary capacity in Scotland?
a person 12 years or older has testamentary capacity to make a will
what is required for a person under 16 to consent to medical treatment?
they can consent of they are capable of understanding the nature and consequences of the procedure.
what understanding is presumed for a person 12 years or older regarding instructing a solicitor?
a person 12 years or older is presumed to have a general understanding of what it means to instruct a solicitor in civil matters
what can a person under 21 do regarding prejudicial transactions?
a person under 21 can apply to the court to set aside a transaction they entered into when they were 16 or 17 years old if it was prejudicial to them.
define the minimum age of criminal responsibility
12
what’s is the courts ruling on wrongful pregnancy and birth claims?
parents can not claim damages for the cost of raising a healthy child born after failed sterilisation, as the benefits of raising a child outweigh the financial burden
under what circumstances may damages be awarded for raising a disabled child
damages may be awarded for the additional costs of raising a disabled child due to failed sterilisation
what is the general rule regarding legal capacity for individuals under 16 in Scotland
the general rule is that a person under 16 years old has no legal capacity to enter into any transaction
at what age does a person gain legal capacity to enter into transactions in Scotland?
16 years or older
what are common transactions that a person under 16 can enter
buying something from a shop
explain the nasciturus principle
a child who is born alive can have rights related to events that occurred before their birth, only if born alive
give an example of how the nasciturus principle applies to succession
a child who is born after their parents death can inherit from their parents estate
what is the legal stance on ante natal injury claims?
a child can recover damages for injuries for injuries sustained before birth, including those caused by a third party, but it is unclear how this applied to injuries caused by the mother
what are the conditions under which an abortion can lawfully be performed according to the abortion act 1967?
if two medical practitioners agree that pregnancy has not exceeded 24 weeks and poses risks to the woman’s health, that its necessary to prevent grave permanent injury, risk to life, or if the child would suffer serious handicaps.
what legal rights does the father have regarding abortion?
no legal rights over termination
describe two types of persons recognised by Scots law
natural persons: individual human beings
legal persons: entities such as cooperations that can have legal rights and duties
how does a natural person acquire legal personality?
upon live birth
what happens to a natural persons legal personality upon death?
loses it
define legal personality and legal capacity
legal personality: status of being recognised as a person under the law
legal capacity; ability to exercise legal rights and duties
what are the divisions of private law in Scots law?
private law ; obligations, persons, property and actions
legal percentage status in surrogacy arrangements
surrogate is legal mother and surrogates husband or civil partner is the legal father
what is parental order in the context of surrogacy
intended parents can apply for a parental order under the human fertilisation and embryology act 2008
what conditions must be met for a parental order to be granted?
conditions include that the pregnancy must result from artificial means, an applicant must have a genetic connect to the child, the application must be made within six months of birth, the child must be living with the applicants, the surrogate and other parent must consent, no payment made to surrogate beyond reasonable expenses.
what future reform has been proposed regarding legal parentage in surrogacy?
Scottish law commission has proposed that intended parents become the legal parents at birth
what types of marriage exist in Scotland
regular (civil or religious, same sex or opposite sex)
who can apply for adoption
made by a relevant couple of an individual
consent in adoption process?
required from child if 12 years or older and birth parents with parental responsibilities and rights, unless court dispenses with consent
list grounds for dispensing with consent adoption cases
the parent being dead
cannot be found
incapable of consenting
unable to discharge their parental responsibilities or if the Childs welfare requires it
legal status of commercial surrogacy
criminal offence
status of adoption order
irrevocable
what is the paramount consideration in adoption cases
the Childs welfare and adoption should only be granted if nothing else will suffice
which act governs adoption in Scotland
adoption and children Scotland act 2007
describe the role of an adoption agency in the adoption process
investigates, assesses and reports and is the only entity that can place a child for adoption
legal conditions for a child to be adopted
under 18 and not have been married or in a civil partnership
list some actions the reporter can take beside arranging a hearing
the reporter can take no further action or refer the child to the local authority for voluntary assistance
how is a children’s hearing structured
consists of three panel members, the child, the relevant persons, representatives, the reporter and professionals
what type of orders Can a children’s hearing make
compulsory supervision order with measure attached, discharge the ground, make an interim order, order a medical examination or issue a warrant to secure attendance
what principles guide decision making in children’s hearings
the welfare principle, minimum intervention principle and the Childs right to express views
definer adoption in the context of legal intervention
radical legal intervention in a Childs life, destroying the child relationship with birth parents and creating a new one with adoptive parents
how can court orders related to parental responsibilities and rights PRRS be applied for
section 11 of 1995 act by a person with PRRS, a person with an interest int he child, or a legal person with an interest in a specific outcome
sig of welfare principle in court decisions regarding children?
emphasises that the Childs welfare is paramount in all decisions regarding parental responsibilities and rights
what is encouraged for resolving family disputes according to the context?
alternative dispute resolution such as mediation, is encouraged for disputes
describe the process of referral to the children’s reporter
anyone can refer a child to the children’s reporter if they believe a ground applied and a compulsory supervision order is necessary
what happens if the reporter decides a compulsory supervision order is necessary
the reporter must arrange a children’s hearing
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What is the local authority’s role in promoting children’s welfare?
The local authority has a duty to promote social welfare by providing advice, guidance, and assistance to children ‘in need’ or ‘looked after’.
How does the Children’s Hearings system approach children who commit offenses?
The Children’s Hearings system treats children who commit offenses as children in need of care and protection, focusing on welfare rather than punitive measures.
List some grounds for intervention under the Children’s Hearings (Scotland) Act 2011.
Grounds for intervention include lack of parental care, child abuse, offending behavior, substance misuse, being beyond parental control, and truancy.
What measures can states take to protect children from abuse and exploitation?
States must take measures to protect children from all forms of abuse and exploitation, including applying for Child Protection Orders in emergencies if the child is at risk of significant harm.
How is the interim gender recognition certificate used in court?
This certificate is presented to the court to establish grounds for divorce or dissolution.
This certificate is presented to the court to establish grounds for divorce or dissolution.
The law aims to limit judicial discretion, encourage a ‘clean break’ between parties, remove fault from property calculations (unless exceptional circumstances), and recognize non-financial contributions.
List the types of court orders that can be made in divorce cases.
The court can make orders for payment of a capital sum, transfer of property, payment of a periodical allowance, pension sharing orders, and incidental orders.
What factors does the court consider when making financial orders?
The court considers the principles set out in Section 9 of the Family Law (Scotland) Act 1985 and the resources of the parties.
Define matrimonial property according to the
Family Law (Scotland) Act 1985.
Matrimonial property includes all property belonging to either party acquired before or during the marriage/civil partnership, excluding gifts and inheritances from third parties.
Describe the defences available in divorce cases.
Defences include lenocinium (enticement)
and condonation (forgiveness).
How does the defender’s behavior affect cohabitation expectations?
The defender’s behavior, whether active or passive, makes it unreasonable to expect the pursuer to continue cohabiting.
Define non-cohabitation in the context of divorce.
Non-cohabitation means the couple has not lived together as ‘man and wife’ for one year with consent, or for two years.
What does the law say about reconciliation periods in divorce?
The law allows for reconciliation periods during which couples may attempt to resolve their differences.
Explain the purpose of an interim gender recognition certificate.
An interim gender recognition certificate is issued under the Gender Recognition Act
2004 if one or both parties do not want the marriage/civil partnership to continue after one party transitions gender.
What rights do surviving spouses or civil partners have under Scottish law?
Surviving spouses or civil partners have legal rights to the deceased’s estate and can claim damages if the deceased died due to negligence.
How can a marriage or civil partnership be legally terminated?
The grounds include irretrievable breakdown of the marriage or civil partnership, or issuance of an interim gender recognition certificate.
How is irretrievable breakdown established in a marriage?
Irretrievable breakdown is established by proving adultery, among other factors, as defined in the Divorce (Scotland) Act 1976.
What is the definition of adultery in the context of Scottish marriage law?
Adultery is defined as a sexual relationship between a man and a woman, and can only occur between a man and a woman, even in same-sex marriages.
What is a void marriage?
A void marriage is one that is legally invalid from the outset, such as those involving forbidden relationships or lack of consent.
What constitutes a voidable marriage?
A voidable marriage is one that can be declared invalid due to specific reasons, such as incurable impotence at the time of marriage.
How does the formation of a civil partnership differ from marriage in Scotland?
The formation of a civil partnership follows the same six steps as marriage but includes terminology changes and allows for same-sex partnerships.
What legal consequences arise from marriage or civil partnership regarding property?
Marriage or civil partnership does not automatically affect property rights, but there are exceptions like equal ownership of household goods and right of occupation of the family home.
What is the duty of aliment in marriage or civil partnership?
Spouses and civil partners have a duty to maintain each other under the Family Law
(Scotland) Act 1985.
What is the significance of the Marriage
Schedule in the marriage process?
The Marriage Schedule is issued a maximum of 7 days before the ceremony and is necessary for the legal recognition of the marriage.
List the requirements for a marriage ceremony in Scotland.
Both parties must be present, there must be two witnesses over 16, both parties must consent, and an authorized celebrant must declare them spouses.
What is the timeframe for registering a Marriage Schedule after the ceremony?
The Marriage Schedule must be registered within 3 days of the ceremony.
Identify some impediments to marriage in
Scotland.
Impediments include forbidden degrees of relationship, prior subsisting marriage or civil partnership, being under 16 years old, lack of consent, error regarding the ceremony or identity, and duress.
Explain the concept of forbidden degrees of relationship.
Forbidden degrees of relationship include consanguinity (blood), affinity (marriage/civil partnership), and adoption, with specific exceptions for affinity.
Describe the Marriage (Scotland) Act 1977.
It is the legislation that governs the requirements and regulations for marriage in
Scotland.
Define irregular marriage in the context of
Scottish law.
Irregular marriage refers to marriage by cohabitation with habit and repute, which was abolished by the Family Law (Scotland) Act 2006, but not retrospectively.
How is a valid regular marriage formed in
Scotland?
A valid regular marriage is formed through six steps: submitting a Notice of Intention to Marry, displaying names in the Marriage Notice Book, addressing objections, issuing a Marriage Schedule, conducting a marriage ceremony, and registering the Marriage Schedule.
What is the purpose of the Marriage Notice
Book?
The Marriage Notice Book displays the names of the parties intending to marry and their proposed date publicly.
How are objections to a marriage handled in
Scotland?
Minor obiections are rectified by the Registrar, while major objections based on legal impediments are referred to the Registrar General for Scotland.
What does the Presumption of Death
(Scotland) Act 1977 establish?
It sets out the grounds for presuming a person’s death if they are missing and thought to have died or have not been known to be alive for at least seven years.
Who can raise an action of declarator of death under the Presumption of Death
(Scotland) Act 1977?
Anyone with an interest can raise an action of declarator of death in these circumstances.
What case demonstrates the application of the Presumption of Death (Scotland) Act
1977?
The case of LM, AD and JM v AM demonstrates the application of the Act.
How do courts determine whether to withdraw life-sustaining treatment for incompetent adults?
The courts use a ‘best interests’ test to determine whether treatment should be withdrawn.
What was clarified in the case of Law Hospital
NHS Trust v Lord Advocate regarding the ‘best interests’ test?
The ‘best interests’ test should be viewed negatively, meaning treatment can be withdrawn if keeping the patient alive by artificial means is not in their best interests.
What does Article 2 of the European
Convention on Human Rights state about the right to die?
It protects the right to life but does not include the right to die.
What is the legal status of euthanasia and assisted suicide in Scotland?
Euthanasia and assisted suicide are illegal in
Scotland.
What recent legislative attempt was made regarding assisted dying in Scotland?
The Assisted Dying for Terminally III Adults (Scotland) Bill was introduced in March 2024.
What principle is emphasized as the test for financial provision in the Scottish Law
Commission proposals?
Fairness is emphasized as the test for financial provision, balancing advantages and disadvantages.
What new orders are proposed in the Scottish
Law Commission’s recommendations?
The proposals allow for a wider range of orders, including property transfers.
Define legal personality and its significance in
Law
Legal personality is the legal recognition of an
individual as a person with rights and duties.
When does legal personality end for natural persons?
Legal personality ends at death.
What does the Adults with Incapacity
(Scotland) Act 2000 allow individuals to do?
It allows individuals to appoint a Welfare
Power of Attorney to make decisions about their care if they become incapable.
Summarize the implications of the case
Savage v. Purchas on awards to survivors.
The court may award nothing if the survivor benefited from insurance and pension.
What does the case Windram, Applicant illustrate about awards to survivors?
The court may award the family home to the survivor for raising children.
Identify the limitation on claims against property according to Kerr v Mangan.
Claims cannot be made against property outside Scotland.
What proposals did the Scottish Law
Commission make in 2022 regarding financial provisions for separating couples?
They support separate financial provision regimes for divorcing couples and separating cohabitants.
How is cohabitation redefined in the Scottish
Law Commission proposals?
Cohabitation is redefined as ‘living together in an enduring family relationship.
Explain the court’s position on balancing disadvantages and benefits in property claims.
The court can make no award if disadvantages and benefits balance out.
How can claims made outside the time limit be pursued according to Pert v McCaffrey?
Claims made outside the time limit may be pursued under unjustified enrichment.
Define the powers granted to the court under
Section 29 of the 2006 Act regarding succession claims.
The court can award a capital sum or transfer property to the surviving cohabitant from the deceased’s estate.
What factors does the court consider when making awards to surviving cohabitants?
The court considers the size and nature of the estate, benefits received by the survivor, and other claims on the estate.
