I have been practising family law for quite some time now and over the years it never fails to surprise me that many people still hold strongly to a number of misconceptions about family law in Scotland.
The woman will automatically get custody of the children- NO
In Scotland, the Children (Scotland) Act 1995 replaced the words “custody” or “access” with the words “residence” and “contact”. Basically when parents separate there is no legal requirement to have any orders granted in relation to children unless there is genuine dispute in which case a Sheriff or Judge will decide on the basis of what is in the best interest of the child. If it is considered that it is better for a child to stay with his/her father then residence will be awarded to the father.
Child maintenance stops when a child becomes 16- NO
A parent’s responsibility to financially maintain a child lasts until that child is 25 years of age if the child is still in full time education or vocational training. The duty is owed by both parents towards the child, so that a child over the age of 16 who is at college can seek maintenance from both parents. Normally when a child of separated parents lives at home, one parent fulfils the obligation to aliment by providing bed and board whilst the other parent pays child maintenance.
If a divorce is your fault you will be punished for that financially-NO
In Scotland the only ground of divorce is the irretrievable break-down of marriage. The breakdown may be proved in a number of ways, for example non-cohabitation for a period in excess of two years or one year if your spouse consents, or unreasonable behaviour on the part of the other spouse or adultery. A spouse’s behaviour even if unreasonable has no relevance to a financial settlement unless it can be shown that the behaviour has impacted adversely on the couple’s finances, such as a serious gambling habit.
A pension is not matrimonial property-NO
A pension has a monetary value and is counted as part of a married couple’s matrimonial property in the same way as money in the bank is treated as matrimonial property. The pension has a value based on how much is held within the fund at the date of separation. A pension can be divided on divorce by way of a pension sharing order and if such an order is implemented a portion of one spouse’s pension is removed from his or her pension fund and placed in a pension fund nominated by the other spouse. The sums are not paid out until retirement. Alternatively the value of the pension can be offset against another aspect of the matrimonial property, for example, the former matrimonial home so that one spouse receives less from the house because they have a larger pension.
My husband and I separated a couple of years ago – he has now inherited a large sum from his late father and I want half- NO
Money inherited or gifted from a third party is not matrimonial property. In addition any money or assets accumulated by a spouse after the date that the parties separated is not matrimonial property. You are therefore not entitled to any of your father in law’s estate. Money that is inherited or gifted can be converted into matrimonial property if received during a marriage and for instance is used to buy a family car. In that event, upon divorce the money is not automatically reimbursed but account of the source of the funds can be taken account of, when negotiating how a couple’s assets are to be divided.
Unmarried couples have pretty much the same rights as married couples – NO
While many income related benefits and tax credits may not take account of the married status of a couple, this does not mean that cohabiting couples have the same rights as married couples on the breakdown of their relationship. The Family Law (Scotland) Act 2006 did bring in a number of changes to the law of cohabiting couples including rights to make a financial claim against your former partner if you can show that you have suffered economic disadvantage in the interests of the family. This is not the same as being able to claim a share of matrimonial property acquired during the period of the marriage. In addition it is only a capital sum that can be claimed and not maintenance, unlike married couples. On death the differences are also substantial. Married couples have an automatic right to inherit certain parts of their spouse’s estate on death, irrespective of whether there is a will or not. In the case of a cohabiting couple however, there is no automatic right and if there is a will which does not mention the surviving partner then they have no right to inherit at all. If there is no will, the surviving partner can make a claim against the estate of their deceased partner but must raise a court action to do so.