Letter of the Law

The Changing Family

by Richard Frenz, Miller Hendry Solicitors

The Family Law (Scotland) Act 2006 which came into force on 4th May, is a much awaited statute. It disappeared for some time up a parliamentary siding but has now emerged with only a faint heralding toot from the Executive. Yet if you are thinking of marrying, buying property, separating, divorcing, cohabiting, having children or dying it could affect you! It is a seriously complex piece of legislation which amends or repeals nearly 30 other Acts. It is thus far under publicised so here are some of the headlines.

Marriage: You can now marry the parent of a former spouse. Those wanting to marry their former mother-in-law please form an orderly queue!

Separation: If you have been separated for one year you can divorce if your former spouse agrees. If you have been separated for 2 years then you can divorce without that consent. This shortens the periods of separation from 2 and 5 years respectively. These timescales make much more sense.

Divorce: Previously in Divorce proceedings property had to be valued at the date you separated. Now some property may be valued at the date of transfer. This should avoid one person obtaining a windfall where there has been a large increase in value between the two periods.

Cohabitation: If a cohabitant relationship (including same sex couples) breaks down there may be a claim to money, property and household goods. However, if you cannot sort it out you must make application to the Court within 1 year of the date of separation.

Death: If a cohabitant dies during the relationship and does not leave a Will the survivor will be able to make a claim against the deceased's net estate, albeit that they will come second in priority to any rights of an estranged spouse. However, applications to the Court must be made within 6 months of the deceased's death. Indecent haste?

Children: Unmarried fathers now obtain automatic parental rights and responsibilities if they are named on the Birth Certificate. Not before time!
Buying Property: Remember that some of the above may apply!

This Act modernises Scottish family law. The Act has many intricacies which will take time to unravel. I know you expect me to say it, but if any of the above affects you or your family, consult a solicitor, soon.