A Modern Marriage?

Abstract

A. INTRODUCTION The last two centuries have produced radical change in the legal regulation of marriage in Scotland, and, much more recently, developments in relation to civil partnership and legal rights and obligations for unmarried cohabitants have once again focused attention on the relationship of husband and wife. The process of statutory reform, begun in the nineteenth century, has been carried on and extended by the Scottish Law Commission and now the Scottish Executive to the extent that the law relating to marriage is almost entirely contained within legislation. Much of this change, and the need for continuing reform, have been presented in terms of a process of modernisation: of making the law fi t with the needs of contemporary families. In tracing the pattern of statutory reform we can discern a shift from the “traditional” marriage of Scots law to a “modern” marriage relationship. Contemporary family legislation principally regulates the process of formation and then retreats until the point when marriage comes to an end, through death or divorce. Statutory reform has removed prescriptive rules as to the legal roles of husband and wife with the effect that they are left free to negotiate their own relationship. Even where the relationship becomes untenable