It is not commonly known that in Scotland a clause can be inserted into a Will appointing a guardian to children who may be under 16 at the time of the parent’s death.
Here are the important points to note:
An announcement was made on 1 October 2021 that child witnesses in criminal court cases would be able to give evidence in pre-recorded interviews, under a new scheme announced by the Scottish Government. In criminal cases the intention is that Police Officers and Social Workers will be able at an early stage to interview children involved in criminal trials at the High Court, to reduce distress in court when recounting experiences.
The Justice Secretary commented that the aim is to gather “the child’s best evidence
The Sheriff Court Rules state that at any stage of a family action, the Sheriff may appoint a Child Welfare Reporter to (a) seek the views of the child and report any views expressed by the child to the court; or (b) undertake enquiries and report to the court.
If you are involved in a court action in which a Child Welfare Reporter is appointed, the Reporter will probably want meet with you and your ex-partner, and with the child(ren). Sometimes the Reporter will go
More than three million couples in the UK live together. For any number of reasons, many do not intend to marry. However, this means if they split up, their rights are limited. If you are considering moving in with your partner, or are already living with a partner but are unmarried, here are some essential points to note:-
There is no such thing in Scotland as “common law marriage” and it should not be assumed that cohabitees have the
Pre-nuptial agreements (or more commonly referred to as a ‘pre-nups’) have become more popular over the years. They are no longer considered to be documents used by only the wealthy or by celebrity couples. More people now are looking to regulate their financial affairs before entering into marriage.
A pre-nuptial agreement is signed before marriage and enables a couple to decide how they wish their assets to be divided should they later decide to separate or divorce. Although it may not be considered the most
The Herald reported earlier this month that domestic abuse charges reported by the police to Scottish prosecutors, which include attempted rape and serious assault, have hit a five year high. Lockdown was described by Scotland’s Law Officer, Advocate Depute Dorothy Bain QC as having a “devastating impact” for domestic abuse victims.
When there is a prosecution for an offence of domestic abuse there are often protective bail conditions put in place. It is important to be aware that there are also a number of remedies
The Law in Scotland says that if anyone has to make a decision about a child involved in a separation or divorce, account must be taken of the child’s views, if the child wishes to express them.
We usually think of this as a child being asked where, or with which parent, they want to live. That can place a huge burden on a child. There are lots of other things that children want their parents to know. Here are some of the things that
You can get divorced in Scotland if your marriage has broken down irretrievably and that can be for one of four reasons:-
Adultery
If your husband or wife has committed adultery you can raise a divorce action immediately. However,
During these unprecedented times, obligations are imposed on families to remain together at home. Keeping the parent and child bond intact is often treated as a given. There can however be circumstances in which the State, in the form of the Local Authority, might seek to interfere with that. Where a child could be removed from the family home, the correct legal advice is crucial.
An individual with parental rights for a child has the right to decide where the child lives. The mother has
As we have entered into a further period of at least 3 weeks ‘lockdown’ with the continued restrictions in place requiring everyone to ‘stay at home’, it can be a frightening time for anyone who is suffering domestic abuse.
If you are experiencing physical, emotional, sexual or financial abuse or being intimidated or threatened by a current or previous partner, you are being subjected to domestic abuse.
The Chief Executive of Scottish Women’s Aid, Dr Marsha Scott, when discussing the impact of the current pandemic
With the current Covid 19 situation and imposed ‘lockdown’, we are experiencing uncertain and challenging times. Normal routines have been severely impacted. Children are being home schooled and are missing out on extra circular activities, and visiting friends and family. Maintaining a level of consistency is key, but it can be very daunting to try to keep to prior agreed arrangements for children when other factors come into play.
It is natural for a parent to be concerned how best to safeguard and protect their
With the latest Government guidance sending the message of ‘staying at home’ in a bid to fight the virus, for many the danger is not only what is outside. The Office for National Statistics reported that 1.6 million women and 786,000 men were the victims of domestic abuse in the year ending March 2019. It is anticipated that figure will rise as the COVID-19 situation continues.
Domestic abuse is not always physical. Abuse can be psychological (including threatening and coercive behaviour), emotional, financial or sexual.
Separation often results in one parent being responsible for the majority of the everyday care of the children. A common result of this is that they also end up being responsible for the everyday costs. Child maintenance payments are financial support paid by the parent who does not have day-to-day care of the children. It can be paid to the other parent, the child or a grandparent or other guardian.
Child support payments are usually agreed between the parents or through the Child Maintenance Service
We are often asked, can collaborative law help me? The collaborative law process offers separating couples a non-confrontational way of agreeing the legal and practical arrangements for their separation and divorce. By reaching agreement in a collaborative way, couples are able to come to a respectable arrangement together through supported discussions.
At its simplest, the collaborative process is all about reaching solutions together. Sometimes talking things through can seem the hardest challenge of all. When relationships break down, hurt, bitterness and anger are often the
You might have heard somebody mention mediation before but what is mediation? Mediation is a form of alternative dispute resolution that involves two (or more) parties and a mediator. Mediation provides parties with the opportunity to have an open and honest discussion about a range of family law issues in a neutral environment. Everything that is said during a mediation session is confidential and the parties have control over any decisions that are made during the meeting.
What sort of issues can be dealt with
Often clients tell us that they want to get divorced quickly so that they can move on with their lives. For some divorcing couples, they will be able to use the simplified divorce procedure. But what is this? The simplified divorce procedure involves completing the necessary form and satisfying the sheriff court that you and your spouse meet the criteria for a simplified divorce.
The criteria for a simplified divorce is as follows:
We are often asked the question - how do I get divorced in Scotland? In order to obtain a divorce you must raise an action in a Court which has jurisdiction. Jurisdiction normally means that you raise the action in the Court nearest to you. Before contemplating where to raise an action you must determine whether you can raise a divorce action or not. In order to raise a divorce action, you must have the legal ground to do so. In Scotland there is one
So just what are parental rights and responsibilities? Parents have the responsibility to look after their children:
- to help them to be healthy
- encourage their growth, development and welfare
- to ensure attendance at school and an opportunity to develop to their full potential
Parents have the responsibility and the right to say how their children should be brought up. This includes:
The Hague Convention on the civil aspects of International Parental Child Abduction 1980 regulates the international relocation of children. However, when parents are planning on moving abroad with children they often overlook the Hague Convention or think that it will not apply to them. Do you need the consent of the other parent? What happens if you have moved abroad and then want to return to Scotland but the other parent doesn't?
According to a recent study, 50% of married men find their mother-in-law attractive. As unlikely as that seems, it perhaps comes as no surprise that a significant number of marriage breakdowns occur when one spouse engages in an extra marital relationship with another man or woman. We are often told - my spouse has cheated on me! Our clients then want to know what they can do.
The questions we are often asked by clients reflect their hurt and anger at this emotionally difficult time.
You might have heard somebody mention mediation before but what is mediation? Mediation is a form of alternative dispute resolution that involves two (or more) parties and a mediator. Mediation provides parties with the opportunity to have an open and honest discussion about a range of family law issues in a neutral environment. Everything that is said during mediation is confidential and the parties have control over any decisions that are made during mediation.
What sort of issues can be dealt with at mediation?
A
The collaborative law process offers separating couples a non-confrontational way of agreeing the legal and practical arrangements for their separation and divorce. By reaching agreement in a collaborative way, couples are able to come to a good arrangement together through supported discussions.
At its simplest, the collaborative process is all about reaching solutions together.? Sometimes talking things through can seem the hardest challenge of all. When relationships break down, hurt, bitterness and anger are often the strongest feelings.
From the outset parties and their agents
Arranging contact post-separation is important for children, to ensure they have an opportunity to see both parents. It can be difficult for parents to set aside their own feelings and make contact arrangements in the best interests of their children. Unfortunately, many parents are unable, or unwilling, to have direct contact with their former partner. These parents often consult lawyers for help. Family lawyers often use the excellent service provided by contact centres to resolve such difficulties.
What is a contact centre?
Contact centres are
Are actions of division and sale fair? If one or more persons have title to a property in Scotland all of them need to consent if there is to be a sale of that property. If the parties cannot agree on a sale or one or more of them simply 'disappears' then Scots law provides a remedy for a co-owner who wants to dispose of their interest. The remedy is an action of Division and Sale. In circumstances where the property cannot be divided, as
Research by Glasgow and Edinburgh universities has suggested that many women separating from their husband are deciding against making a claim on their partner's pension. This may be because pension holders tend to be extremely reluctant to relinquish a substantial part of their retirement fund or simply due to the fact that it can be a complex area of law. But what rights do you have to pension sharing and how do you go about enforcing those rights?
Since 1 December 2000 separating spouses, and
The economic downturn has had a dramatic impact on financial settlements on divorce and has even affected those once considered financially stable.
The law in Scotland relating to financial settlements on divorce can be found in the Family Law (Scotland) Act 1985. But when looking at the effect of bankruptcy (or sequestration) on separating spouses, it is necessary to also consider the terms of the Bankruptcy (Scotland) Act 1985.
When advising clients of the effect of their spouse's bankruptcy following separation, it is important to
As university fees increase and part-time jobs become increasingly scarce, students are relying on their parents more than ever to fund their academic studies. But what legal options are available to students who feel they are not receiving the necessary financial support from a parent? Can students sue parents for financial support in Scotland?
Parents have a legal obligation to support a child financially until they are 25 if the child is 'undertaking instruction at an education establishment, or training for employment or for a
What are grandparents rights to see their grandchildren following the breakdown of a relationship. While most parents have parental rights and responsibilities which allows them to seek a court order for contact with their children, what options are available to other family members who feel excluded from a child's life.
Applying for parental rights and responsibilities
Almost anyone can apply for parental rights and responsibilities provided they have an interest in the child's life. In practice they will have to show it will be in
Who is eligible for child maintenance payments following separation?
Separation often results in one parent being responsible for the majority of the everyday care of the children. A common result of this is that they also end up being responsible for the everyday costs. Child maintenance is financial support paid by the parent who does not have day-to-day care of the children. It can be paid to the other parent, the child or a grandparent, or other guardian.
Child support payments are usually agreed between
Guest blog by Dr John Pollock, Pollock & Galbraith Consulting Actuaries
Little in the pensions and divorce landscape has changed in recent years but there remain pitfalls for the unwary. Two key issues which are problematic are the valuation and sharing of pensions in payment and the apportionment of Cash Equivalent Values to exclude that part of the value attributable to membership of the scheme prior to marriage.
The valuation of pensions is covered in Regulation 3 of the Divorce etc (Pensions) (Scotland) Regulations 2000.
If you are looking for divorce settlement advice, do you want to know why hiding assets doesn't pay? The law in Scotland relating to separation and divorce settlements requires a split of all property that is 'matrimonial' in nature. Each spouse must openly and honestly disclose all assets held by them as at the date of their separation. Unfortunately, it seems that some people can't resist the temptation to lie or cheat in order to keep at least a portion of those assets to themselves.
When your marriage ends, do you know how to find a divorce lawyer you trust, to advise and represent you during the divorce process? Online search engines or recommendations from friends are an increasingly popular way to find a divorce solicitor.
To maximise this method however you should carefully consider the following before finding a divorce lawyer who's right for you.
Are there particular areas of your divorce/separation that will benefit from particular expertise? E.g. do you need a lawyer with extensive child law
According to Scottish Government divorce statistics in 2012, a total of 13,679 family cases were initiated in the civil courts during 2011/12, a decrease of 6% on 2010/11. Divorce actions accounted for 78% of the total figure, with actions concerning parental rights and responsibilities accounting for 17%.
A total number of divorces granted during 2011/12 was 9,453, a decrease of 2% compared to the previous year.
What was the most common procedure?
Of those 9,453 divorces granted, 62% used the Simplified Procedure ("quickie divorce") and
Legal separation in Scotland can be a difficult step to take but it is important to prepare yourself for what happens next. Here are 5 things you need to know.
1. How do we separate?
Couples usually separate when someone moves out of the matrimonial home. A solicitor can provide clarity on this by producing a separation agreement for spouses, civil partners or couples who have been cohabiting.
2. Who needs to know we have separated?
After separating you may have a responsibility to inform
As family lawyers we are regularly asked the question: Can I change the locks on my spouse? This is probably one of the most common questions I am asked when dealing with a client's separation or divorce.
The short answer is no. Regardless of whose name the property is in, each spouse has the right to occupy the property. These rights are known in Scots Law as 'occupancy rights'.
The only way to legally exclude your spouse from the family home is by
The law of Scotland on cohabitation rights provides that when an unmarried couple who live together separate, then one or either of the former partners may make a financial claim on the other. There remain differences between this regime and the applicable system when spouses divorce and they should not be viewed as one and the same. This is in stark contrast to the law of England where only married couples may seek financial provision from a spouse. The law when it first came into
It is not uncommon for divorce settlements to include a person's pension, as it can be more valuable than your house. It is therefore important not to disregard pension rights when determining how matrimonial property is to be divided on divorce.
In Scotland, only pension assets which have accrued during the period of marriage comprise matrimonial property.
There are three ways in which your pension can be dealt with on divorce:
Do you need separation or divorce legal advice?
The recession has meant that many couples who are going through a separation or divorce cannot afford for one of them to move out of their matrimonial home. This situation is far from ideal and can cause conflict and tension within the household.
A question routinely asked by clients is "can they ask their spouse to move out of the matrimonial home?" The answer is yes but the spouse has to agree. This is because married couples
We are often asked by clients??what kind of financial support is available to me post-divorce/post-separation/post-civil partnership??
Husbands and wives/civil partners have a legal duty to aliment one another during marriage or whilst in a civil partnership.? This means that they have to financially support one another.? This duty continues in the form of aliment after separation until divorced or the civil partnership is dissolved.? After divorce/dissolution there may also be a duty to pay a periodical allowance for a period up to 3 years after
A new rule came into effect on 1 August 2012 for the divorce process. In divorce cases with a financial element, whether it is a claim for a capital sum or sale of the matrimonial property, both parties must complete a Form 13A.
This form must be completed by the party raising the action before the action is raised in Court. The form asks for details of matrimonial property and debts as at the relevant date.
What is matrimonial property and debts?
Cohabitation law including cohabitation rights, came into force in 2006 through the Family Law (Scotland) Act 2006 (the Act). The Act contains provisions for dealing with financial issues when an unmarried couple separate. Cohabitation is a less formal relationship than marriage and the legal rights available to each person when they separate are not nearly as extensive as if they divorced.
There are a number of common myths amongst cohabiting couples:
Children's Services are provided by the Social Work Department in each Local Authority (Council) - you may want to know why children's services are involved with your child. Children's Services deal with concerns about a child's welfare and provide assistance and protection for children in need.
A child in need is one:
As a divorced parent do you know if you need consent before you can take your child abroad for a holiday? When looking forward to a summer holiday, it is a question that often arises for separated or divorced parents. Do you need both parents to consent?
This can be a fraught issue and unfortunately the law does not help. The Children (Scotland) Act 1995 states that when both parents of a child have parental responsibilities and rights, the consent of both is required prior
What do you know about prenuptial agreements. Donald and Melania Trump have one, as do Michael Douglas and Catherine Zeta-Jones. But what are they? Should you have prenuptial agreement. Are they enforceable in Scotland? Or are they just for the rich and famous?
There were 29,070 marriages in Scotland during 2014. Considering this, and the fact that the average age at which people marry for the first time has increased by over two years in the last decade (to 32.9 years for men and 31.0
At exam times we are regularly asked - when does financial support end? This question is asked by both custodial and non-custodial parents.
Tense teenagers and anxious parents are thinking about important qualifications. Good results can secure places at colleges and universities - but that can lead to worries about the cost of further education and how to protect children from debt.
Separated and divorced parents should not make the mistake of thinking that they only have an obligation to pay for their child until
We are frequently asked - do I need to change my Will after divorce? The focus is usually on immediate worries, such as the arrangements for the children, the household bills and the family home. Although it is necessary to get advice about such matters, it is equally important to think not just about the past, the present and the immediate future, but also to plan ahead and think about how divorce and separation can affect your Will.
Child maintenance support changes will come into effect in 2012 which will dramatically alter the way child support is collected. The objective is to give both parents a financial incentive to make voluntary arrangements.
The options are:-
1 A Family Based Arrangement - parents agree the amount and frequency of payments. This can mean alternatives to monetary payments e.g. child care vouchers.
2 A Minute of Agreement in Scotland or a Consent Order in England and Wales. Both reflect that parents have come to a
Occupancy Rights and the Matrimonial Home - legal advice following separation.
Many people are concerned about their occupancy rights, i.e. their right to remain in the matrimonial home.
Do I have to move out of the property?
Where couples are married, a spouse is under no obligation
A separation agreement in Scotland is often a useful document as during separation most couples want to initiate some discussion in relation to the division of the marital assets, or have put in writing what has already been agreed between them.? Either way, your solicitor is likely to recommend entering into a Separation Agreement.? So, what is a Separation Agreement in Scotland and what needs to be agreed before one is entered into?
What is a Separation Agreement?
Sometimes referred to as a ?Minute of
We have published a number of blog articles dealing with the legal consequences of a separation, divorce and child contact matters but you may want to know 'how do I get married in Scotland'
In Scotland, prior to the marriage ceremony, both parties must submit a Marriage Notice form to the registrar of the district where the marriage is to take place. Once the Registrar is satisfied that there are no legal impediments to the marriage (i.e. if someone has been married previously, that a
