In contemporary Scottish society, with increasing rates of separations and divorces, the "blended family" with step-parents is increasingly common. Many individuals choose to cohabit or marry others who have a child or children from a previous relationship or marriage who live in their household. In many cases, the step-parent assumes a hands-on role in assisting with the care and development of that child.
As a matter of law, step-parents do not have automatic parental rights and responsibilities in respect of the child of the partner or spouse who is not biologically related to them - even upon marriage. In order to obtain formal recognition of the relationship with that child, many step-parents choose to raise an action for parental responsibilities and rights or seek an adoption order. In circumstances where such orders are granted, financial obligations towards the child are created.
Curiously, however, a step-parent who has no formal legal rights in relation to a step-child can still have an obligation to support that child financially. In terms of Section 1(1)(d) of the Family Law (Scotland) Act 1985, an obligation of aliment shall be owed by "a person to a child...who has been accepted by him as a child of his family."
Acceptance as a child of the family probably requires some intention for the arrangement to be a permanent one or at least indefinite. Acceptance is primarily a state of mind, though this can manifest itself in actions and words. This could, for example, include their "parenting role" and assistance in care arrangements, whether the step-child is treated the same as the step-parent's natural child or children (where relevant) or testamentary writings (such as a will) in which financial provision is made in respect of that step-child. Although aliment paid by another parent will no doubt be relevant, it is not a decisive factor in whether a step-parent has a legal obligation to aliment that child also, given that the obligation arises from acceptance of the child as a child of the family.
It is, therefore, very important for those planning cohabiting or marrying individuals with a child or children from a previous relationship or marriage to consider the financial obligations that may arise from this. One way of making clear the parties' intentions in that regard could be through a cohabitation or pre-nuptial agreement. Such agreements could include that the step-parent wishes to record that they do not accept financial responsibility for the step-child. Whilst it may not completely contract out of the obligation of aliment, it could be a factor for a court to consider if the matter were litigated upon following the ending of a relationship or marriage.
Brodies LLP has a team of family law solicitors across Scotland with considerable experience in advising on cohabitation and pre-nuptial agreements. If you do wish further advice on this, please contact Garry Sturrock, Senior Solicitor (on 01224 392278 or email [email protected]) or any other member of the team.