Family Law in Scotland

01.01.07

Family Law in Scotland

The Family Law (Scotland) Act 2006 received Royal Assent in January 2006.

Grounds of Divorce

Any reference to divorce should also be taken as a reference to dissolution of a civil partnership.

The Family Law (Scotland) Act 2006 will change some of the grounds of divorce:

Behaviour - This will remain unaffected.

Adultery - This will also remain unaffected.

Desertion - Desertion will cease to be a ground for divorce on its own once the 2006 Act comes into force.

One year's separation with consent - Currently the law requires a period of two years separation before a consent divorce can proceed. The 2006 Act reduces this period to one year.

Two years separation without the requirement of the other party's consent - Currently the law requires five years separation before divorce can proceed in the absence of any other grounds. The 2006 Act will reduce this period to two years.

Financial Provision upon Divorce

The 2006 Act will make one or two technical changes to the law of financial provision upon divorce. The general principles and their overall effect however will remain unchanged.

The starting point, and in most cases the end point, will be equal sharing of matrimonial property. Matrimonial property is all property acquired during the marriage. Specifically excluded from this definition is property owned before the marriage, or property acquired by way of gift or inheritance. If the property changes in nature during the marriage it is likely to be converted from non-matrimonial property into matrimonial property.

The law allows the Court to take account of special circumstances, and other factors such as any economic disadvantage suffered by one spouse for the sake of the marriage, or the need to provide a house for the children of the marriage. The reality however is that the majority of cases are disposed of on the basis of equal sharing of matrimonial property, and if any account is taken of any of the other circumstances, the uplift is unlikely to be substantial.

Scots Law is not generous with spousal maintenance. In theory, when a divorcing spouse or partner needs time to get back into the job market, they are entitled to maintenance for a period of up to three years post-divorce. The reality is that in the vast majority of cases the divorced spouse/partner can expect very little, if anything, by way of maintenance post-divorce.

In cases where the divorcing spouse/partner cannot work because of age or infirmity, the law will take account of this and they can realistically expect long term maintenance - always provided the other spouse has the necessary means to support them.

The fact that a divorcing spouse/partner has a difficulty in obtaining proper full time employment because they have young children to look after does not in itself guarantee long term maintenance.

In most cases the terms of any extra judicial financial settlement are set out in a Minute of Agreement, i.e. a Separation Agreement - a contract between the parties. A Minute of Agreement does not require the approval of the Court even where there are existing proceedings. A registered Minute of Agreement has the equivalent force of a decree from the Court of Session. Once divorce has passed it is practically impossible to re-open the question of financial provision.

Marriage in Scotland does not invalidate an existing will, although the other spouse will gain the protection of certain rights. Likewise a Scottish divorce does not invalidate a will. Separating and divorcing clients should be aware of the importance of either making a will for the first time, or changing their existing will!

The existence of the CSA means that there is very little involvement by the Courts in relation to maintenance for children. The Court of Session has on occasions made a global award of maintenance for both wife and children whilst a CSA assessment is pending. Top up awards from the Court are virtually unheard of. If there is to be a dispute regarding child maintenance, it will either be because one of the parties is outwith the UK, or because the subject matter of the dispute is school fees.

Pre and Post Nuptial Agreements

The law of Scotland recognises Pre and Post Nuptial Agreements. They require to satisfy various criteria to stand up - the main one being that the Agreement was fair and reasonable at the time it was entered into. Post Nuptial Agreements may be used as part of an Inheritance Tax gifting exercise - the parents requiring their child and his or her spouse to sign such an agreement before passing substantial assets down the family.

Co-habitants' Rights

The 2006 Act will introduce limited co-habitants' rights. These rights will be open to both heterosexual and homosexual couples. The Court may make an order for payment of a capital sum if the defending party has derived an economic advantage from contributions (financial or non-financial) made by the applicant party, and the applicant has suffered an economic disadvantage in the interests of either the defending party or of any children.

A cohabitant is defined as a person who is or was living together with another person as if they were husband and wife. The Act also goes on to provide that in determining whether a person is a cohabitant, the Court shall have regard to the length and nature of cohabitation, the extent to which the cohabitant is financially dependent on the other and whether the cohabitants have a child of whom they are parents. It seems possible therefore that persons who were living together as husband and wife could be deemed not to have been cohabitants if, for example, they had not been living together for long or each was financially independent or they had no children.

There is no guidance as yet to how the Courts will deal with this in practice - how they will look at co-habitation, or how generous or otherwise the Court will be with their financial provision.

The 2006 Act also introduces a provision giving co-habiting couples limited rights to each other's estate upon death, although upon intestacy only. Any application must be made to the Court by the surviving co-habitant within six months of the date of death. The Court will consider various factors including the extent and nature of the deceased's estate and any other claims on that estate. Such a claim will not affect an existing spouse's claims against the estate but could act to prejudice any claim by the children of the deceased.

As a result of these changes in the law, we expect to see a substantial growth in co-habitation agreements.

Children

Currently Scots Law is largely in step with the rest of the UK. However, unmarried fathers have no automatic parental rights or responsibilities. The 2006 Act will give unmarried fathers automatic parental rights or responsibilities if they are registered as the child's father on the birth certificate.

When looking at the issue of parental rights and responsibilities, the Court must have regard to three principles:

1 The welfare of the child is to be the paramount consideration;

2 Orders should only be made if that would be better for the child than making no order at all; and

3 Appropriate account must be taken of the child's views.

One potentially significant change contained in the 2006 Act is the requirement of the Court to have particular regard to the need to protect the child or the parent with care from any abuse or risk of abuse, although it may take some time before we get indication of how this will be applied in practice.

This brief update gives a general overview of the current state of Scots Family Law. As ever, each case will have its own peculiarities which may justify a departure from the very general rules set out in this update. We would be only too happy to clarify any matters if you have any specific queries.

Please contact Scott Cochrane