Family Law Services from Paris Steele in East Lothian

In terms of the Family Law (Scotland) Act 2006 unmarried couples who live together now have certain legal rights and obligations. These rights are:

There is a presumption that all household goods and furnishings acquired during the period of cohabitation are owned by both parties.If one party provides a monetary allowance to the other for joint household expenses this allowance is treated as belonging to both parties equally.
Where the cohabiting couple separate, either party has the right to apply to the Court for the payment of a capital sum and/or the payment of a further sum of money which will reflect the cost of having to care for the children that the cohabitants may have.
On the death of a cohabitant the surviving partner may claim certain rights of inheritance to the deceased partner’s estate providing the deceased partner died without leaving a will.

Therefore, couples who are planning to live together should always consult with a solicitor and receive advice on what their rights and obligations will be. It is possible for parties to enter into a Cohabitation Agreement which will allow the cohabitants to agree what may happen if they separate. The cohabitants may also wish to instruct the preparation of new wills.

Paris Steele W.S. has many years of experience in dealing with the issues affecting cohabitating couples and would be happy to advise and assist you.

Regrettably, many marriages still end in divorce. The breakdown of any relationship is difficult and parties will need detailed professional advice on their rights and obligations. Our Edward Danks is a member of the Family Law Association which promotes good practice in the field of Family Law and encourages the terms of any separation to be agreed in a non-confrontational manner.

There is one overall ground of divorce and that is the irretrievable breakdown of marriage. This is proved in one of four ways:

If you have been separated for more than one year and your spouse is prepared to consent to divorce you can apply to be divorced after one year
If your spouse is not prepared to consent to divorce, you can raise proceedings after two years have passed from the date you separated.
If your spouse has subjected you to behaviour that you cannot tolerate, you can apply for a divorce at any time, subject to having appropriate evidence.
If your spouse has committed adultery, you can apply for a divorce at any time, subject to having appropriate evidence.

If you are considering raising divorce proceedings you should consult your solicitor. There are important legal consequences which follow from a divorce.

If there are no children under the age of 16 and neither party wishes to make any financial claims on the other the divorce proceedings can be raised under the Simplified Divorce Procedure. You can obtain the appropriate application form from your local Sheriff Court. However, it is still recommended to consult a solicitor before making your application.

Paris Steele W.S. has many years experience in dealing with divorce and would be happy to advise and assist you in that connection.

The breakdown of any relationship can be traumatic and stressful. Your solicitor can help and our Edward Danks is a member of the Family Law Association which is committed to the constructive resolution of family law disputes in Scotland.

There will be a number of issues which arise. The main issues are as follows:

Residence of Children – When couples separate it is essential that agreement is reached on where their children will live and who will act as the Primary Carer. It is also normal for the Primary Carer to confirm that they will consult with and take account of the views of the Absent Parent in any matters of importance affecting the welfare, health, education or well-being of the children.
Contact Arrangements – It will be in the best interests of the children that there is a regular routine for them to continue to have contact with the Absent Parent. Contact can be either “residential”, that is contact periods with an overnight stay, or “non-residential” where the children spend a period of time with the Absent Parent throughout the day and the children are returned to the Primary Carer before their bedtime. You may be able to agree on fixed periods for example non-residential contact after school every Tuesday and Thursday with residential contact every second weekend or you may simply agree that contact will be by mutual agreement and agreed seven days in advance of any period taking place. The agreement that you reach will very much depend on your individual personal circumstances.
Child Maintenance – The Absent Parent will be liable to provide financial support for the children. If the level of this financial support cannot be agreed privately, the Primary Carer is entitled to apply to the Child Support Agency for a financial assessment.
Personal Aliment – One of the most important legal consequences of marriage is that subject to certain conditions, spouses are bound to aliment or support each other. Usually the main income provider during the period of marriage will be obliged to continue to provide financial support to his or her spouse until they are able to adjust to living from their own resources. An award of aliment is intended to be a temporary payment but it would be reasonable to expect one spouse to aliment the other for a period of two to three years. If there is still a question of financial hardship either at the end of this period or when divorce proceedings may be coming to their conclusion, it may still be appropriate for an order for periodical allowance to be made extending this aliment payment for a further two to three year period. The level of aliment can be calculated by reference to the level of financial support provided throughout the period of marriage and the parties’ current financial demands and liabilities.
Rights to Succession – Irrespective of the terms of your Will and in particular where no Will exists, spouses have automatic prior and legal rights of succession. Where couples separate it would be usual for both parties to discharge these rights of succession and for both parties to draft new Wills.
Division of Capital Estate – The principles which we need to apply in deciding the division of the matrimonial estate are as follows:-

(a) The net value of the matrimonial property should be shared fairly between the parties to the marriage;

(b) Fair account should be taken of any economic advantage derived by either party from contributions by the other and of any economic disadvantage suffered by either party in the interests of the other party or of the family;

(c) Any economic burden of caring after divorce for a child of the marriage under the age of sixteen should be shared fairly between the parties;

(d) A party who has been dependent to a substantial degree on the financial support of the other party should be awarded such financial provision as is reasonable to enable him or her to adjust over a period of not more than three years from the date of the Decree of Divorce to the loss of that support on divorce; and

(e) A party who at the time of the divorce seems likely to suffer serious financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him or her of hardship over a reasonable period.

Most separating couples manage to resolve matters by negotiation. This is normally by an exchange of correspondence between the parties’ solicitors or attendance at family mediation. Where negotiations are successful a Separation Agreement will be completed. If matters cannot be agreed Court proceedings will have to be raised.

Paris Steele W.S. has many years experience in separation work and would be happy to advise and assist you.

When a couple separates careful consideration must be given to the care and upbringing of their children.

The Children (Scotland) Act 1995 created the principles of parental rights and responsibilities. In terms of the 1995 Act parental rights and responsibilities are defined as:

The right to have your child live with you or regulate where the child lives.
The right to have contact with any of your children that do not live with you.
The obligation to provide guidance on your child’s upbringing.
The ability to act as your child’s legal representative.

Married couples have automatic parental rights and responsibilities for their children. For unmarried fathers the procedure depends on when the child was born. Where the child was born before 4^th May 2006 you can only have your parental rights and responsibilities recognised by completing a prescribed agreement with the child’s mother or by raising successful Court proceedings. Since 4^th May 2006 an unmarried father will have automatic parental rights and responsibilities providing he is named on the child’s birth certificate.

Most couples are able to agree where the children should live and arrange for the children to spend time with each parent. Matters are normally agreed by the exchange of correspondence between each party’s solicitor or through family mediation. The arrangements are then embodied into the Separation Agreement.

If the parties cannot agree either party can apply to the Court for a decision on where the child will live and how the absent parent will have contact with the child. In making its decision the Court will primarily consider what is in the best interests of the children. It may seek the opinion of the children if this appropriate.

Parents have an obligation to financially support their children. This obligation will subsist until the child is aged 25 providing the child remains in full-time education. If an absent parent refuses to make a financial contribution to the children's upbringing an application can be made to the Child Support Agency.

Paris Steele W.S. have many years of experience in dealing with the issues affecting children of separating couples and would be happy to advise and assist you.