Our Family Law team help many families on a weekly basis, and over the years have noticed a number of recurring issues that crop up regularly. Here we look at the most common misconceptions that exist regarding Family Law in Scotland, and explain the truth behind the myth.
If you live together for at least five years, you count as being common law spouses.
This isn’t right. We do have a system of common law marriage, unlike England, but only if the cohabitation began before May 2006 and your friends all think you’re married anyway. That can amount to Marriage by Cohabitation with Habit and Repute. You’ve got to go to Court for that and it’d quite difficult to prove. The good news is that since May 2006 we’ve had a system of cohabitation law in Scotland that the English look on with great envy. Basically, if you’ve been living together as if husband and wife (or as if registered civil partners) then either of you may have a very valuable claim against the other at the end of the cohabitation, whether the cohabitation has ended by death or otherwise. There are strict time limits and if you miss those then your claim will not diminish – it will vanish. Speak to a solicitor as soon as possible if you think you may have a claim.
I can only get maintenance from my partner if he really is the biological father of my child.
Technically speaking this is nearly correct – but it’s misleading. Yes, you can only get child support (through the CSA) from the biological or adoptive father, but that’s not the whole story. If your partner lived with you and your child, accepting the child as a member of his family, he picks up an obligation to maintain that child until the child leaves full-time education or training, or reaches the age of 25, whichever is the sooner. He doesn’t have to adopt the child, nor marry you, not take any formal step. And that rule is gender-neutral and orientation -neutral too. There are special rules for a child born by artificial insemination.
I’m a grandparent. I have the right to see my grandchild even if my daughter’s new husband doesn’t like me.
This is one of the most common misconceptions, and one for which some Grandparents’ Rights organisations are to blame. No one – not even a father or a mother – has automatic rights to have contact with any child in the Scottish Courts if there’s a dispute. The Court will apply the criterion of the child’s welfare rather than the criterion of what the grandparents themselves may deserve. Just because they have no automatic rights, however, that doesn’t mean that grandparents can’t ask the Court to grant the right of contact with a particular grandchild if that’s in the best interests of the child. Discussion and negotiation are always better than Court action, but if you think that it would be better for the child to see you in spite of the parents’ own view to the contrary, the Court is there for you. You may have a hill to climb, but it may be worth climbing, so long as it’s for the child’s benefit as well as yours.
