WJM Family Lawyer Welcomes New Legal Guidance on Cohabiting Couples

Posted on 12 December 202211 July 2023 by Tom Quail

WJM Family Lawyer Welcomes New Legal Guidance on Cohabiting Couples

A leading family law solicitor has welcomed new guidance for cohabiting couples in Scotland which will entitle partners to financial support in the event of separation.

Tom Quail, head of the family law team at Wright, Johnston & Mackenzie, believes the recommendations made by the Scottish Law Commission in its latest report will simplify the law while offering a broader range of outcomes for unmarried couples whose relationships break down.

Tom, who specialises in areas including divorce, adoption, and custody arrangements, commented following the publication of the Scottish Law Commission’s report on cohabitation, which makes a series of suggestions to improve and update the law.

Tom said: “This area of the law has long been criticised for being outdated, overly complicated, and unrepresentative of the growing numbers of couples in Scotland who choose not to get married, so this report and its recommendations are very welcome.

“I think the key takeaways from the report are, firstly, that parties in an unmarried, cohabiting couple could be required to provide short-term financial support for former partners, and that a clearer formula is required for judges to apply to calculate levels of financial support.

“At present, the law around financial support for cohabiting couples is unclear, and this report reinforces how important it is to have clear guidance enshrined in law.”

Now the report has been published, the recommendations will go to the Scottish Parliament before the Bill is updated, which could take until 2025.

Tom continued: “In some countries such as Australia and New Zealand, couples who are cohabitants largely experience the same legal rights as married couples if they have lived together for a certain period of time, and many expected the Scottish Law Commission to advise a similar approach to be taken in Scotland.

“However, there are plenty of couples who make the choice not to marry, and it’s important for the law to recognise their decision to do so as much as those who choose to get married. If the law makes the rights the same for unmarried couples, they are effectively eliminating those couples’ choices to be unmarried.

“I welcome these findings and believe updated law in this area is vital to better represent how people are living in the modern world.”

Child Arrangements During Christmas Holidays

Posted on 8 December 202211 July 2023 by Tom Quail

Child Arrangements During Christmas Holidays

After the last two years, time with loved ones has never felt so important. However, for separated parents, Christmas can be a time of worry and stress as arrangements need to be put in place as to where and how the children will spend the festive season.

Here are some tips for avoiding any festive unhappiness and how to agree on arrangements for children during Christmas.

What are my rights for seeing my children over Christmas?

It is recognised that it is in the best interest of the children to see both parents and for children to have contact with both parents.

Unless there are issues of domestic violence and/or abuse, neither parent should prevent the other from seeing the children.

It is strongly advisable to agree an arrangement to ensure time is spent with both parents during what is a magical time of year for all children.

Tom Quail shares some tips on agreeing festive contact arrangements, amicably, as follows:-

Be organised

If you do not have agreed plans in place, start a conversation with your ex-partner and agree an arrangement that works best for you and the children.

Parents tend to agree that Christmas Eve, Christmas Day and Boxing Day are the main days and are dealt with separately from the rest of the holiday period.

Suggested arrangements can include:-

Christmas Eve at one home until lunch on Christmas Day;
- Children spending the entire Christmas period with one parent and alternate the following year;
- Share Christmas Day with the handover after lunch or tea time if you live near to one another;
- Share the holidays so one parent has one week with Christmas and the other has New Year, and alternate each year.

Include the children

Include the children, but do not make them choose. Depending on the age of the children, include them in discussions as older children often need to feel they are being heard.

Once a child is older than five, the courts will want to know their views. Avoid court proceedings, but include the children.

Be fair and considerate to the other parent

Ask yourself if you would be happy with the proposed plan. If the answer is “no”, maybe the plan should be reconsidered.

Put the plan in writing

Once you reach an agreement, it is a good idea to put it in writing, email, send it to the other parent. If there are any other issues, these can be resolved in good time before Christmas. This should also help to avoid any misunderstandings as you have committed it to print.

Stick with the plan whenever possible

Be prepared to be flexible with arrangements for the children and willing to adapt your plans to an extent.

Last minute changes

Last minute changes to the plan often cause feelings of disruption, uncertainty and anxiety. Whilst flexibility is important, it is equally important to have stability.

If you need any advice on child arrangements during Christmas, or any other family law issues, contact Tom Quail for a free minute case review.

The Law on Cohabitation – Proposals for Change

Posted on 14 November 202211 July 2023 by Tom Quail

The Law on Cohabitation – Proposals for Change

Couples could receive financial support from their partners if relationships break down, a report aimed at reforming the law for cohabitants in Scotland has suggested.

In the report published on 2^nd November, the Scottish Law Commission reviewed the existing law for cohabitants and found it was “out of date, unclear and overly complicated.”

They found attitudes to relationships and families had changed in Scotland since this was introduced as part of the Family Law (Scotland) Act 2006.

The Commission recommended reforms aimed at “achieving fairer outcomes” for cohabitants by simplifying the law as well as a broader range of remedies for when relationships break down.

The report suggest a more modern and inclusive definition of “cohabitant” that does not rely on comparison with married couples or civil partners.

A clearer test for courts to apply when separated cohabitants make a claim for financial provision and guiding principles to achieve fair outcomes for both parties was also suggested.

Parties could provide short-term financial support for former partners in the case of serious hardship, the report suggested, with courts being required to take notice of existing agreements between cohabitants.

Kate Dowdalls, KC, Lead Commissioner on the project, said:- “Problems in this area of law were identified shortly after the 2006 Act came into force. Reform is long overdue.”

The report has now been submitted to the Scottish Government, together with the draft Bill. It may well be that the Scottish Government would wish to consult on the proposed changes and recommendations. A possible date for the Bill to become law is 2025.

Until the law is changed, cohabitants have to rely for financial provision on a law which is unclear and complicated. There is a strict one year time limit after separation for making a financial claim, after which the claim is time barred. Until the law is changed, it is important to obtain specialist legal advice in this area.

Please get in touch if you would wish to know how to make a claim for financial provision within the one year time limit.

WJM Solicitor Gains Trauma Awareness Accreditation

Posted on 28 October 202211 July 2023 by Margaret Hoisington

WJM Solicitor Gains Trauma Awareness Accreditation

A solicitor from Wright, Johnston & Mackenzie LLP has been accredited for her competency and knowledge on the complexity and impact of trauma.

Emma Letham, Associate at WJM, has gained the Trauma-Informed Lawyer Certification from the Law Society of Scotland at a time when trauma-awareness and trauma-informed practice are forming the heart of a fairer justice system.

Emma has worked in family law for over seven years, becoming a specialist in adoption and permanence cases.

The prominent member of the Association for Fostering, Kinship & Adoption Scotland was certified after completing the specialist course that has been in high demand, despite it only launching a year ago.

Emma said: “It is a privilege to have been given the opportunity to undertake this course. Upskilling in how to spot signs of trauma is so important in effectively handling cases that require an extra level of sensitivity.

“I have always been interested in psychology and human behaviour and it is therefore no surprise that I chose to practice in a human-centric area of the legal sector.

“I now feel better equipped to assist my clients through a trauma-informed practice and I am of the view this course is invaluable for all family lawyers.”

Tom Quail, head of the WJM family law team, said: “Emma has shown high levels of compassion and integrity throughout her career and this course will stand her in good stead for providing the best possible support to her clients.

“Our firm is committed to supporting the team in pursuing the CPD and training opportunities that will help them to continually upskill and provide the best possible level of service.”

It adds to Emma’s other specialist training, as she has previously undergone Domestic Abuse Training for Solicitors provided by Scottish Women’s Rights Centre.

Warning Issued Over ‘DIY’ Sperm Donation Agreements

Posted on 19 July 202211 July 2023 by Tom Quail

Warning Issued Over ‘DIY’ Sperm Donation Agreements

Tom Quail, family law specialist at WJM, has issued a warning to those considering a ‘DIY’ sperm donor agreement instead of going through regulated clinics.

Doctor holding urine sample cup. Medical test in hospital.

As the unregulated sperm donation market continues to grow and more people opt for private arrangements, greater awareness of the legal implications is needed.

He said: “While it is illegal to sell sperm in the UK, there is a growing trend of people obtaining sperm through unofficial and unregulated channels, whether that’s by using online marketplaces or making arrangements with close friends.

“However, as well as the lack of screening for medical conditions or background checks on donors, there is also a host of legal implications which it’s vital to consider.

“Some people going down this route may decide to draw up and sign a ‘donor’ or ‘co-parenting’ agreement to set out in writing what is agreed between all parties, believing these are legally binding. They’re not, nor are they a guarantee about the role a donor will or won’t have in the child’s life.”

He warned that the consequences of donating sperm through a licensed clinic and donating through a private arrangement differ considerably.

Donors who donate their sperm through a licensed clinic are not treated as the legal father of any child they help conceive. This means that a clinic donor cannot be held financially accountable for their genetic children, nor will any donor-conceived children have any rights of inheritance from the donor. Furthermore, the donor will also not have any say in the upbringing of the child.

By contrast, a donor who donates sperm outside of a licensed fertility clinic will not acquire the same automatic protection, and will be considered the legal father of the child.

Tom added: “A sperm donor should think carefully about the role they may wish to play in the child’s life and whether they want to have any contact with the child in future. If they don’t, there is the potential for disputes further down.

“Going down the non-licensed route can lead to major problems and exposes all those involved to potential legal battles in future.

“Some people may feel the licensed clinic route is cost prohibitive, but in reality going down the route of a DIY donor legal agreement could have considerable consequences so it is important to take this into consideration and plan carefully from the outset.”

What Changes will The Children(Scotland) Act Make for Children and Young People

Posted on 26 May 202211 July 2023 by Margaret Hoisington

What Changes will The Children(Scotland) Act Make for Children and Young People

October 26 2022, Virtual Seminar

2pm – 5pm: £180

Speaker : Tom Quail, Wright, Johnston & Mackenzie LLP

The Children (Scotland) Act 2020 received royal assent in August 2020. The changes have not yet been brought into force as the Government, Local Authority Courts and Children’s Hearings prepare for the changes before they have to start delivering them.

The new Act brings the law into line with children’s rights under the United Nations Convention on the Rights of the Child (UNCRC).

This seminar will consider the main changes for children and young people being:-

• Children and young people having more opportunity to give their views to court;
• The courts having to explain decisions to children;
• Children having Support Advocacy Workers in family court actions;
• Measures to keep children safe in contact centres;
• Registration of Child Welfare Reporters and Curators ad litem and rules of how they should carry out their duties;
• The court having to investigate the reason contact arrangements are not working
• Rules to avoid legal proceedings taking too long

The seminar will look at the potential impact, the changes the new Act will bring and the advice which requires to be given by family law/child law practitioners.

Book your place here: http://ccpdtraining.co.uk/booking/booking-childrenscotlandact

Most Important Factor when Relocating is what is Best for Children

Posted on 19 May 202211 July 2023 by Tom Quail

Most Important Factor when Relocating is what is Best for Children

With international travel back on the cards after two years of significant restrictions, it stands to reason that we’re going to experience an increase in the number of people relocating to new countries.

Some who live in Scotland but are originally from elsewhere may have been hoping to move back to their home country for some time but have been unable to do so until now as a result of travel restrictions.

For those who are parents, this also means facing the challenge of relocating children. This can be a lengthy process at the best of times, but for separated parents, it can be incredibly complex from a legal standpoint.

The decision to relocate can be incredibly emotional and complicated and when children are involved, another layer of complexity is added, especially when the parents are separated and have differing opinions on the relocation.

When this is the case, it can be near enough impossible for the other parent to relocate to their selected country.

This presents a legal issue and one that should be handled as soon as possible when planning a significant move.

Taking a child out of the country without having the other parent’s consent, can be considered wrongful removal or abduction. Getting the child back from this situation is also dependent on where the child has been moved to.
If a child has been moved permanently to a country that is part of The Hague Convention on the Civil Aspects of

International Child Abduction, then there are procedures in place to ensure the safe return of the child to the UK.

If, however, the country is not part of this convention, a different approach must be taken. This involves getting consular and diplomatic services involved including the Foreign and Commonwealth Office.

In Scotland, it is not a criminal offence to take your own child abroad without the permission of the other parent unless there are certain court orders in place. The legislation differs in England and Wales where a single parent is prevented from taking children abroad without another parent or carer’s permission.

The Children (Scotland) Act 1995 does not require a signature from the other parent as proof of consent to the child being moved away, however, it is generally a wise course of action to obtain this anyway.

It is important to keep in mind that other countries may have different regulations, and these should be thoroughly researched before travel.

Some countries will require signed affidavits from the other parent as proof of consent to travel, where others will want to see the child’s birth certificate, or even an extract decree of divorce if that is the current state of the relationship.

Border controls are very thorough when an adult is travelling with a child, and most family lawyers can assist with organising all the relevant documents and paperwork that may be required.
If one partner does not want their child to move to another country, they may raise a court action, which would prevent the other parent from taking the child out of the UK.

They may even go one step further and ask the court to have the child’s passport surrendered and their whereabouts declared at this point.

The most important factor to consider before moving abroad is what is best for the child. Of course, there are lots of factors to consider and weigh up.

Arrangements must be made to ensure parents will be able to remain in regular contact with their child, as well as what their schooling situation will be when they relocate, amongst other factors such as living circumstances.

Courts are also likely to take the child’s feelings on the situation into account but will balance this with the proposal of the parent who wishes to relocate and determine if they have a genuine motivation to move and that they do not wish to sever any contact between the other parent and the child(ren) in question.

It is always advisable to seek legal advice, whether you are the parent hoping to move abroad or the other parent in the scenario before the relocation process is too far along.

A solicitor will be able to talk you through each step and advise on the process to ensure the child’s best interests are taken into consideration at every turn.

This article first appeared in The Scotsman

Kinship Care Orders – FAQs

Posted on 11 March 202211 July 2023 by Emma Letham

Kinship Care Orders – FAQs

Kinship Care Week in Scotland runs from 14-20^th March 2022 and the Kinship Care Advice Service for Scotland is running events all week. You can find out what is on using this link – https://kinship.scot/kinship-care-week-2022/

To mark Kinship Care Week, our Emma Letham has answered some of the Frequently Asked Questions about Kinship Care Orders.

The general principle is that children should be brought up by their parents without intervention from their local authority. However, if this cannot happen, a child should be placed with kinship carers where appropriate and possible.

What is a Kinship Care Order?

A Kinship Care Order is applied for under Section 11 of The Children (Scotland) Act 1995. Under a Kinship Care Order, the Court can grant some or all Parental Rights and Responsibilities to Kinship Carers.

Parental Rights and Responsibilities are held by the child’s birth mother and sometimes the birth father. The important point to note is that under a Kinship Care Order, the Parental Rights and Responsibilities are not completely removed from the parents; they are shared with the Kinship Carers.

Who can apply for a Kinship Care Order?

A Kinship Carer is someone who is related to the child or has known the child and with whom the child has a pre-existing relationship.

Under the Looked After Children (Scotland) Regulations 2009, a Kinship Carer is defined as a “person who is related to the child (through blood, marriage or civil partnership) or a person with whom the child has a pre-existing relationship”.

How much does a Kinship Care Order cost?

The cost of a Kinship Care Order can depend on a number of matters, including whether the application is likely to be contested by the child’s birth parent(s).

If the child’s birth parent(s) are in agreement with the Kinship Care Order, this means the Court process will likely be straightforward and a solicitor who specialises in these matters can offer a fixed cost for the legal work to be undertaken.

If the child’s birth parent(s) are going to contest the application, then the Court process will take longer and there will be an increase in costs.

We would recommend checking if you are eligible for Legal Aid to assist with the cost of obtaining a Kinship Care Order. Most local authorities would require you to check your position in relation to Legal Aid in the first instance.

If you are not eligible for Legal Aid, then the local authority may contribute to the legal costs involved in applying for a Kinship Care Order; they may meet some or all of the costs.

It may be beneficial for you to obtain information from the local authority in relation to their contribution towards legal costs in writing.

It is important to remember that the Court will not automatically grant a Kinship Care Order – the Order will only be granted where it is in the best interests of the child. In reaching a decision, the Court’s paramount consideration will be the welfare of the child.

If you have any questions about Kinship Care or applying for a Kinship Care Order, please do not hesitate to contact our Emma Letham at ell@wjm.co.uk for a free, confidential chat.

Why the date of separation matters when couples split

Posted on 4 March 202211 July 2023 by Roger Mackenzie

Why the date of separation matters when couples split

Whether you are married or in a cohabiting relationship, one of the first things your solicitor will focus on during your initial meeting will be to establish the date you separated from your spouse or partner.

In divorce, the date of separation is important because the value of matrimonial property will be determined on the date you separated. In essence, you are looking to obtain the balance sheet of the marriage at the date of separation – that is the total of all assets which make up the matrimonial property after deducting any debts.

If you are cohabiting, when you cease to cohabit is critical because you only have one year from the date you separate to bring your claim to court. If you fail to meet this deadline, the financial claim you may have against your former partner will fall.

How then is the date when you stop cohabiting established?

In many situations the date will be obvious and not subject to dispute.

But sometimes parties to a relationship will have differing views as to when a relationship broke down. A couple may still live in the same house but have stopped cohabiting for legal purposes long before one of you moves out.

The issue will be determined objectively so your solicitor will ask you questions about the nature of your relationship and changes in the normal pattern of behaviour. This will include sleeping and eating arrangements, holidays and social activities, and whether there was any change in the usual financial arrangements which operated between you.

For couples in a cohabiting relationship which may be breaking down it is imperative to get early legal advice on this issue to alleviate the risk of losing your right to make a claim against your ex.

If you have any questions following a separation, please contact our Roger Mackenzie at rlm@wjm.co.uk

Inflation bites twice on separated families

Posted on 22 February 202211 July 2023 by Roger Mackenzie

Inflation bites twice on separated families

As the cost of living crisis hits households across the country, separated families may need to revisit maintenance arrangements agreed at a time when inflation was subdued.

When married couples split spouses owe a duty of financial support to one another. This will often see the higher earning party provide maintenance or aliment in the form of monthly payments to the spouse who requires support to meet their needs.

Typically, both spouses will draw up a schedule of income and outgoings to assess the needs of the receiving party and the resources of the paying party to meet any shortfall. Frequently where children are involved the dual obligations to maintain a spouse and children will be wrapped up in one payment, or perhaps by continuing to meet certain costs of the household where the children mainly reside, such as the mortgage and council tax.

If the arrangement or court order was reached based on costs which have since spiralled it may be possible to seek to vary the level of aliment to be paid by reference to a new schedule of outgoings.

However, if the paying party also has mounting fuel and food costs, but without a comparable increase in their available income, they may argue they do not have the resources to offset the rising costs of living which impacts on both households.

Some long-term maintenance arrangements will include reference to regular review with reference to the Retail Prices Index or Consumer Prices Index. This can shelter the receiving party from inflationary pressures.

Financial support is usually one of the most pressing issues to be agreed when couples separate. Agreements reached in the early days after separation can have important consequences further down the line and early advice on your financial requirements or obligations can be crucial in setting the stage for the longer term arrangements which follow.

If you have any questions about financial support or child maintenance following a separation, please contact our Roger Mackenzie at rlm@wjm.co.uk

Menu

family law