Where families are strong and working well, Scottish Ministers believe that the government should not get involved. Family life should, wherever possible, be a matter for the families themselves. They believe that the government should help families by supporting good values in family relationships (things like trust, tolerance and fairness), not tell people what to do or tell parents how to bring up their children.
Family law helps the government to do this by providing legal rules about responsibilities and rights between couples and between children and their parents and other people who have an interest in the children's welfare. Over the last 20 years or so there have been major changes in the way families are formed and how people think and feel about families. Families now come in all shapes and sizes and every family is important no matter how it is formed. With effect from 4 May 2006, the Family Law (Scotland) Act 2006 (after this we say the 2006 Act) updates the law to reflect the way families live today. Three core principles guided these reforms:
- safeguarding the best interests of children
- promoting and supporting stable families
- updating the law to reflect the reality of family life in Scotland today.
What this booklet is for
This booklet is intended to provide a general idea about the law covering people who live together (cohabitants) and to tell you about the new rights that were introduced by the 2006 Act to protect cohabitants when their relationship breaks down or one partner dies. Knowing in general terms what the law says can be useful in making decisions affecting your relationship. This is especially important if you have, or plan to have, children.
This booklet does not attempt to provide all the detailed answers to all the questions you may have, but points out where you can find out more if you want to. If you are facing serious and pressing problems it is important that you seek legal advice as soon as possible. The Law Society of Scotland will be able to provide you with details of solicitors in your area who are accredited as specialists in family law, telephone number 0131 226 7411 or visit their website at www.lawscot.org.uk. Another source of advice is the Family Law Association website at www.fla-scotland.co.uk. The Family Law Association is a group of solicitors who either specialise in family law or have considerable experience or interest in all aspects of family law.
What is a cohabitant?
In this booklet, a cohabitant is either one of a couple who live together (or lived together) as if they were husband and wife or civil partners. Some of the rules that affect cohabiting couples have some extra conditions that have to be met, this is explained in the part of the booklet that deals with each rule.
Common law marriage
It is a common misunderstanding that a couple will have established a "common law marriage" after living together for a period of time. This is not the case. Common law marriage does not exist in Scotland. Even if you have lived with your partner for many years, you do not have the same rights in law as a married person does. There was a type of irregular marriage called "marriage by cohabitation with habit and repute" which could apply to couples who had lived together and were thought to be married. This was rarely used in practice and, except for very particular circumstances, was abolished by the 2006 Act.
The 2006 Act has introduced a set of basic rights to protect cohabitants, either when their relationship breaks down, or when a partner dies. But the law is very clear: couples living together do not have the same rights as married couples and civil partners. It is very important that you understand this when deciding whether to move in with your partner or to make a formal commitment. The Scottish Executive has produced a booklet on marriage and the Equality Network has produced a booklet on Civil Partnerships in Scotland. Contact details are at the back of this booklet.
Before the 2006 Act
There were some rules already in place under Scots law covering cohabiting couples which continue to be in force. They cover:
Housing and tenancies
There are two types of tenancy in Scotland: Scottish secure tenancies (a tenant of a local authority or registered social landlord (housing association) or a water or sewerage authority) and assured tenancies (tenant of a private landlord). Prior to January 1989 the normal type of letting in the private sector was called a regulated tenancy.
Scottish secure tenancies
Scottish secure tenancies are transferred from a tenant to a cohabiting partner either when one partner dies or a relationship ends as follows:
If a cohabiting partner was living in the house as his or her only principal home throughout the period of 6 months ending with the tenant's death, he or she must get the tenancy. The tenancy can be succeeded to (meaning passed on to another person) twice. For example, if a tenant dies, the tenancy will pass to the cohabitant. If later, that person died, an adult son or daughter of the original couple would have the right to the tenancy. A landlord can transfer the tenancy to a tenant's cohabitant, where one of them no longer wishes to live with the other. The cohabitant must have lived with the tenant for a period of at least 6 months immediately prior to the date of application for transfer. The landlord will offer a suitable alternative house to the person who wishes to leave.
Assured/regulated tenancies are transferred from a tenant to a cohabiting partner when one partner dies in the following circumstances. If the cohabiting partner of an original tenant ( i.e. someone who has not himself or herself succeeded on the death of a tenant to the tenancy) of an assured tenancy was living in the house immediately before the tenant died, he or she must get the tenancy.
The rules of succession can be complex and anyone unsure about their rights should seek legal advice. Further information on private renting is available on: www.betterrentingscotland.com Shelter Scotland also has a website: www.scotland.shelter.org.uk which contains information about different housing issues.
Housing and occupancy rights
An opposite sex cohabiting partner who does not have "occupancy rights" can apply to the court for the right to occupy the home. You may have occupancy rights if you are the tenant, the owner of the home, or are permitted by a third party to occupy the home. In considering whether a person is a cohabitant for these purposes, the sheriff will look at how long the couple have been living together, and whether the couple have any children (this was extended to include same sex couples by the 2006 Act).
A cohabiting partner can apply to the court for a number of different orders to protect him/herself if their partner is violent. See page 6 for more information.
Immediate family are entitled to claim compensation where a person has been injured or has died through someone else's carelessness.
A cohabiting partner who has lived with their partner for at least
6 months is considered to be immediate family for these purposes.
Adults with incapacity
If a person loses the ability to make decisions for themselves (perhaps through illness or an accident) a cohabitant partner who has lived with their partner for at least 6 months may be treated as their nearest relative. The nearest relative's views are taken into account when decisions are being made about whether special arrangements need to be made to manage the person's affairs and if so what these arrangements should be.
Mental health care and treatment
Where a person has, or is perceived to have, a mental disorder they can appoint someone including an adult carer to represent them, this person is called a "named person". A nearest relative is appointed where there is no named person or adult carer available and they have the same rights as a "named person". A cohabitant who has lived with the person for at least 6 months or, if the person is in hospital, had been living with them for 6 months before the admission to hospital can be the nearest relative.
After the 2006 Act
The Scottish Parliament decided that the law should be updated to reflect the way families live today and that any rights that already existed for cohabiting couples but were restricted to opposite sex couples only should now be extended to include same sex couples. This has been done by the 2006 Act.
The 2006 Act also provides a set of basic rights for cohabitants whose relationship ends covering:
- the sharing of household goods, bought during the time the couple lived together. This means that if you cannot agree about who owns any household goods, the law will assume that you both own it jointly and must share it or share what it is worth;
- an equal share in money derived from an allowance made by one or other of the couple for household expenses and/or any property bought out of that money. It is important to understand that this does not apply to the house that the couple live in;
- financial provision when, as a result of the decisions the couple made together during the relationship, one partner has been financially disadvantaged. This means, for example, if the couple decided that one partner would give up a career to look after their children, they can ask the court to look at the effect that decision had on that partner's ability to earn money after the relationship has ended;
- an assumption that both parents will continue to share the cost of childcare if they had children together; and
- a right to apply to the court for an award from the estate (property)
if their partner dies without leaving a will. Before this, if a cohabiting partner died without leaving a will the surviving partner was not entitled to anything from the deceased partner's estate. Sometimes this meant that they had to move out of the house they had lived in together. The surviving partner will now be able to ask the court to consider giving them something from the estate. If the deceased partner was still married at the time of death, the spouse will still be legally entitled to a share of the estate.
These are not the same as the responsibilities and rights that a couple have if they get married or register their civil partnership. Scottish Ministers wanted to protect adults and children when a relationship breaks down, but they also wanted to make sure they protected, as far as possible, the rights of adults to live free of any obligations towards partners if that is what they choose to do.
When someone asks the court to consider making them an award under these rules the sheriff will consider a number of things including:
- how long the couple had lived together
- what sort of relationship they had (this means was it like a marriage or a civil partnership)
- what sort of arrangements they had made about money (for example, did they have a joint bank account and did they support one another).
This will help the sheriff decide whether the person making the application is entitled to get an award under these rules.
There are time limits for making applications to the court for these rights. The time limit is a year from the date the relationship breaks down or 6 months from the date of the death of the partner. If you think you might have a claim for these rights then you should not delay in seeking advice from a family lawyer.
This booklet covers Scots law. There are a number of things that are covered by rules made for the whole of the United Kingdom. These cover things like national insurance, taxation, social security and other benefits like child tax credit and child support.
For more information about the rules regarding cohabitation contact your local Citizens Advice Bureau or visit their website at: www.adviceguide.org.uk.
Or you may wish to consult a solicitor for legal advice.
If your partner or an ex-partner is being abusive to you, then you have the right to go to court to get protective orders for your and/or your children's safety.
You can apply to the court for an order excluding your abusive partner from your home but you and your partner must have the right to occupy the home (usually by being the tenant, the owner, or permitted by a third party to occupy the home). If your partner does not have occupancy rights, there are other ways to remove him or her from the house and you should consult a solicitor about your rights in this situation.
Interdicts (also known as protective orders)
You can apply to the court for an interdict (a court order) which can protect you if a partner or ex-partner is being violent, by restricting that person's behaviour or prohibiting them from coming to your house, your place of work or your children's school.
Domestic abuse is a very serious issue and you may decide that you wish to contact someone to give you support, information or safe temporary accommodation. Or you may decide to seek legal advice from your solicitor.
The Scottish Executive provides a secure website with information about domestic abuse at www.domesticabuse.co.uk or you can phone the free helpline number in confidence at any time: 0800 027 1234. The helpline can put you in contact with local support and give you immediate practical advice on the options available to you. Victim Support also run a helpline in Scotland: 0845 603 9213.
Also, the emergency number for your local Scottish Women's Aid office can be found in the phone book.
You and your children - Parental Responsibilities and Rights ( PRRs)
PRRs - what are they?
Family Law is an area of the law which affects everybody. No two families are the same, and the problems every family faces will be different. Family law provides rules to help sort out these problems. But it isn't just about solving problems - the law also says how family members should treat each other, and lays down rules about how this should happen.
There are certain things that parents are expected to do for their children while they are growing up. These are known as parental responsibilities. To help parents meet these responsibilities, they are given rights. These are known as parental rights. Rather than being two separate things, these two sets of rules work together. Parents are expected to use these rights to do things which are in their children's best interests.
Parents have the responsibility to look after their children, to help them to be healthy and encourage their growth, development and welfare. In order to do this, they have the right to have their children live with them, or to decide where their children will live. They have both the responsibility and the right to say how their children should be brought up. This includes being in charge of, and directing, their behaviour until they are 16 1 and advising and guiding them until they are 18. Certain responsibilities extend until the age of 25 if the child is in education or training. If the children are not living with them, parents have both the responsibility and the right to stay in touch with, and be involved with the lives of their children. Finally, they have both the responsibility and the right to act for their child in legal proceedings.
Who has PRRs?
Following the changes made in the 2006 Act (from 4 May 2006), regardless of whether the parents are married to one another or not, a child's parents are both given PRRs if they register the child's birth together, i.e. both of their names appear on the birth certificate. It is not necessary for both parents to be at the registration office at the time the birth is registered, as long as the parent registering the birth has written authorisation from the other to do so, and certain forms are completed.
If the mother and father do not agree to jointly register the child's birth, then the father could obtain PRRs by one of the methods outlined in the next paragraph.
Children born in Scotland prior to the changes made by the Family Law (Scotland) Act 2006, will not be affected by these changes. If the child's parents were married to each other at the time of the conception or got married later, then both parents automatically got PRRs. If a child's parents were not married, then only the mother got PRRs. An unmarried father can get PRRs by:
- marrying the child's mother;
- signing and registering a Parental Responsibilities and Parental Rights Agreement ( PRPRA) with the mother. (The mother needs to agree and the form needs to be registered in the Books of Council and Session, a public register kept in Edinburgh); or
- by asking the court to give them to him.
Other people with an interest in the child can also apply to the courts for PRRs, for example step-parents, grandparents, aunts or uncles. When making a decision about a child, the sheriff will be concerned about what is best for the child not for the adults in the child's life. The sheriff will ask the child what they would like to happen and will take the child's views into account.
Where more than one person has PRRs, they don't have to ask each other about everything they want to do for the child only about major decisions. But they must agree if one of them wants to take the child away from Scotland, even on holiday. It is expected that people with PRRs will always do what's best for the child.
Where any big decisions likely to affect the child are being taken, parents should ask their children what they think and listen to what they have to say. As children get older, parents need to listen carefully to their views.
This doesn't mean that parents have to agree with what their children say. It also doesn't mean that children should be made to make decisions or say what they think if they don't want to. It does mean that parents have to give their children the chance to say what they think and then they have to consider their children's point of view.
The law says that young people over 12 are old enough to have a view about, and will increasingly take responsibility for, things that affect them. However, children under 12 should still be listened to. How much importance their parents give to their views should depend on how much the children understand about what is going on.
For more information about registering a birth contact your local registration office or visit the General Register Office for Scotland website, www.gro-scotland.gov.uk . For more information about PRRs contact your local Citizens Advice Bureau or visit their website at www.adviceguide.org.uk. Or you may wish to consult a solicitor for legal advice.
Importance of making a will
If you do not make a will your estate (property) may not be divided up as you would want after your death. If there is no will, the law lays down certain rules about what is to happen to your estate. It now gives the court the power to make an award to a cohabitant. In some cases, these rules could cause problems for your family or for a close partner. Or they may just not be what you would want to happen. Making a will is usually quite simple and need not cost a lot.
You can use your will to leave something to a close friend or body such as a charity. If you own a house with someone else, then it may be necessary for you to state in your will what is to happen to your share of the house after your death. Otherwise, your share of the house may not go to the person you want it to go to and this can cause problems.
In your will, you can appoint an executor, a person who will be responsible for taking care of your estate after your death. You can appoint your spouse, your partner, your adult children or close friends or relatives to be your executor. In some cases, it may be advisable to appoint a solicitor as executor.
For more information you may wish to seek advice from a solicitor. It is usually advisable to seek the help of a solicitor to complete a will. The Scottish Executive produces leaflets: What to Do After a Death in Scotland and Rights of Succession which can be requested by phoning 0131 244 2193.
What happens if there are problems
Every family has arguments at some time and all relationships go through difficult times. Often, these problems are resolved but sometimes they are not. There are organisations which can provide advice or support, either to the couple together or one partner on their own. These organisations have counsellors who are experienced relationship experts and are professionally trained to work with families to help them resolve their problems.
Support organisations in Scotland that you can speak to in confidence are listed at the back of this booklet.
When parents separate
Sometimes couples are unable to resolve their differences and may decide to end their relationship. When a cohabiting couple decide to end their relationship they can do so simply by separating, they don't have to do anything legal.
Parents and their children would normally come to an agreement together about the future arrangements for their children. They will need to decide things like who the children will live with, what contact the children will have with both parents and how their relationships with both parents will be maintained.
Sources of help for separating parents
This is a difficult and emotional time for everyone involved, for which the Scottish Executive has produced a Parenting Agreement pack. This helps parents to put aside their problems with one another and focus on their children and their children's needs and wishes. The pack guides parents through some of the difficult decisions that they may need to make and highlights some of the issues that they might want to think about.
Parents will also want to consider who in the wider family (grandparents, aunts and uncles, etc.) is important to their child and how they will help them to stay in touch. The Scottish Executive has produced a Charter for Grandchildren to highlight the important role grandparents and the wider family can play in a child's life and how during difficult times, they may be a source of support and stability.
Family Mediation is a service for family members to help them make arrangements for their children through meetings with a trained mediator. Mediators can also help couples to reach agreement on property matters. There are a number of organisations who can help, and details are to be found at the back of this booklet.
If separating parents can't agree about the arrangements for their children, one of them can ask the court to make a decision. Usually this would involve applying for a residence and/or contact order, either to have the child live with them or to decide how much time the child should spend with the parent the child does not live with. Where this happens, the court will normally hold an early "Child Welfare Hearing" so that the difficulties can be discussed. In practice Child Welfare Hearings tend to be quite informal occasions. They are held in private. Although their legal representatives will be present, the parents are required to appear and take part. The sheriff will normally try to encourage the parents to reach agreement. The sheriff may appoint an independent person to make inquiries and report to the court to assist early decisions.
Where there is a dispute which affects the welfare of a child, the law says that the child must be given the chance to express their views. They don't have to say anything if they don't want to but they must be asked. If they do say what they think, then the sheriff will take what they have said into account when making a decision.
When making a decision the most important thing for the sheriff will be to make sure the arrangements are best for the child, not for the adults in the child's life. The normal age for a child to be asked his/her views is 12, but younger children are often asked too.
For more information about couple counselling or mediation, see the contact points at the back of this booklet. You may wish to consult a solicitor for legal advice.
Legal aid is intended to help individuals on low and modest incomes gain access to the legal system. In relation to family matters, there are two main types of legal aid. These are Advice and Assistance and Civil Legal Aid. Advice and Assistance enables persons of limited means to obtain legal advice from a solicitor, or where appropriate, from counsel, on any matter of Scots law. Applications for this type of legal aid must be made to a solicitor. The solicitor will carry out a test to see if you are financially eligible to receive Advice and Assistance. You may have to pay a contribution to your solicitor. Your solicitor will let you know the size of any contribution when the financial eligibility test is carried out.
Civil Legal Aid may be available for a solicitor to represent you in most civil proceedings in courts and in a number of proceedings before tribunals. Applications for Civil Legal Aid must be made through a solicitor who will assist in the completion of the application form and send this to the Scottish Legal Aid Board ( SLAB). SLAB carries out statutory eligibility tests for Civil Legal Aid. You may be may be required to pay a contribution to SLAB. The opponent in any case where you receive Civil Legal Aid will be informed and given the chance to object to the application.
Information on eligibility limits can be found on the SLAB website: www.slab.org.uk.
FAMILY MATTERS PUBLICATIONS
The Scottish Executive has produced a range of Family Matters booklets which give information on family law in Scotland. They are Family Matters: Marriage in Scotland; Family Matters: Living together in Scotland and Family Matters: Family law and young people in Scotland. They can be downloaded from www.scotland.gov.uk/familylaw or copies can be obtained by phoning 0131 244 3581.
To get copies of the Equality Network leaflet, Civil Partnerships in Scotland phone 07020 933 952 or visit the website at www.equality-network.org .
To get copies of the Parenting Agreement for Scotland or the Charter for Grandchildren visit the Scottish Executive website at www.scotland.gov.uk/familylaw , phone 0131 244 3581 or contact your local Citizens Advice Bureau.
Main contacts for more help and advice in Scotland
Children 1 st
0131 446 2300
Children in Scotland
0131 228 8484
Couple Counselling Scotland
0845 119 6088
07020 933 952
Families Need Fathers
0207 613 5060
Helpline - 08707 607 496
Family Mediation Scotland
0845 119 2020
General Register Office for Scotland
0131 334 0380
Self Help Group Scotland
0141 882 5658
One Parent Families Scotland
0131 556 3899
Helpline - 0808 801 0323
0141 333 1450
Scotland's Commissioner for Children and Young People ( SCCYP!)
0131 558 3733
Scottish Child Law Centre
0131 667 6333
Helpline - 0800 328 8970
Scottish Marriage Care
0141 222 2166
Scottish Women's Aid
0131 514 9981
0808 800 4444
0131 514 9981
Helpline - 0845 122 8655
The Law Society of Scotland
0131 226 7411
The Scottish Legal Aid Board
0131 226 7061
0131 313 2488
BBC Parenting Homepage
Citizens Advice Scotland
The Family Law Association
ParentLine: 0808 800 2222
ChildLine: 0800 11 11
Domestic Abuse: 0800 027 1234