Archive for the ‘Family Law’ Category
Monday, October 5th, 2009
The Adoption and Children (Scotland) Act 2007 came into force on the 28th September. This Act allows gay and lesbian couples to adopt and brings Scottish law into line with that of England and Wales.
The Act was passed after some controversy and opposition from certain groups including the Church of Scotland and the Catholic Church although it was supported by a number of adoption bodies who believe it will increase the number of potential parents capable of adopting. Under this legislation couples living in “an enduring family relationship” whether heterosexual or homosexual will be entitled to apply to adopt. The capability of applying for adoption will not require parties in a gay or lesbian relationship to be civil partners. Church groups have described gay relationships as “profoundly unstable” but the act seeks to address that by comparing the relationship between the parties to be “as if” they were married or civil partners.
Whether the controversy surrounding the passage of the act spills over into subsequent practical cases remains to be seen. The Act does however represent a significant overhaul of Adoption law with most of the 1978 Adoption act repealed. A completely new “Permanence Order” is introduced for children who cannot live with their families. Under such an order the Local authority may be granted parental rights and responsibilities over residence and guidance with other parties including the child’s parents being granted other responsibilities. The authorities believe this will provide a more flexible framework for some children.
Martin Monaghan, accredited family law expert at Caesar and Howie believes the act significantly modernizes adoption law “There are improvements here, notably the provision of better adoption support and I can see the relevance of Permanence Orders. As to the politics of this Act – it is not for me to comment. Come back in a couple of years and I’ll let you know if same sex adoption has become commonplace”
Tags: Adoption
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Monday, January 19th, 2009
Caesar and Howie have recently been on the winning side in a case dealing with the right of unmarried Cohabitants under the Section 29 of the Family Law (Scotland) Act 2006. This act gives cohabitants the right to apply for payments out of the deceased’s estate. In this case Caesar and Howie successfully represented a family member entitled to inherit the estate against the claim of a person who had lived with the deceased for just over two years. That claim was rejected by the Sheriff. Martin Monaghan family law partner at Caesar and Howie commented “I think this is a good common sense result and it shows the Act does not give cohabitants who live a relatively short time with someone excessive rights to their estate. My client and I were very pleased with this result”.
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Thursday, March 13th, 2008
Thousands of people in Scotland are bearing a financial burden they could avoid if they were more familiar with new laws relating to couples who have lived together but not married.
An increasing number of couples are co-habiting without tying the knot and a Scottish law now has regulations designed to ensure the fair distribution of assets in the event of a relationship break-down.
However, most people are as yet unaware that these changes to the legal system in Scotland have been introduced and as a result are not claiming payments they might be entitled to, a recent repot for Scotland on Sunday has explained.
Awareness of the rules could lead many people to seek out legal services in Scotland and for many unmarried co-habiting couples the issues that arise will relate to the appropriate allocation of debts between a couple who have gone their separate ways.
The Observer reported recently that more and more couples in the UK are signing a pre-nuptial agreement prior to being married in order to avoid lengthy and difficult divorce proceedings.
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Monday, March 10th, 2008
The potential benefits of prenuptial agreements have been highlighted as Sir Paul McCartney and Heather Mills prepare to finalise their divorce settlement.
Consumers north of the border who are considering marriage and see such contracts as only relevant for those who are very affluent or celebrities may find that they could benefit from obtaining legal advice in Scotland on the matter.
Author of the Which? Guide to Living Together Imogen Clout states that in the run-up to a wedding a prenuptial agreement can be a useful way of "concentrating minds", in news that may interest engaged couples seeking legal advice in Scotland.
However, Denise Knowles, a counsellor at marriage guidance service Relate, tells the Observer that prenuptials only serve to preserve inequality in a union.
"Financially, there might be an incredible inequality, but does that mean there is an inequality running through the relationship? Is that the idea? You need to be very clear because, emotionally, that can be very damaging," she states.
The BBC reports that the Sir Paul and Ms Mills announced the end of their four-year marriage in 2006.
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Friday, December 14th, 2007
Couples planning a divorce should make a list of their combined assets and try to agree on an amicable split, an independent financial adviser (IFA) said today.
Graeme Mitchell, managing director of Lowland Financial, explained that in law, money is theoretically split equally between the two parties.
He added that if there are children involved, then "whoever’s earning" should contribute fiscally towards their upbringing.
Mr Mitchell concluded his advice on divorce in Scotland by stating that if a couple cannot agree on figures then it is a matter of dividing everything.
"It’s a matter of saying: ‘Right, we’ll just draw a line around the middle. We’ll split the pension, split the house – which has to be sold’," he stated.
According to the latest government figures, the divorce rate is now at its lowest level since 1984.
Lowland Financial is a general practice IFA based in Galashiels which is regulated by the Financial services Authority.
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Thursday, December 13th, 2007
One of the first couples to get a civil partnership in Scotland has filed for divorce after the pair suffered a number of homophobic attacks.
Bryan Morgan states that he has sought legal advice on divorce and has elected to legally separate from his civil partner, Richard Brown, after they were driven out of their home in Ayrshire.
He tells the Sunday Mail: "Gangs of up to 15 youths were outside shouting abuse, throwing bricks and trying to break my door down."
Mr Morgan adds that the attacks had a "massive influence" on the breakdown of their relationship.
He concludes that his partner currently has legal rights over him and vice versa and that he wishes for this situation to be resolved.
Mr Morgan and Mr Brown became civil partners at Irvine Registry in May 2006.
Civil partnerships have been legal in Scotland since their introduction on December 5th 2005.
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Wednesday, November 14th, 2007
Despite many females being in control of their monetary situation, there are signs that a considerable amount of women do not give their finances enough attention.
Recent figures from Scottish Widows suggests that while 54 per cent of men who "could and should" be saving for their pension, less than half (41 per cent) of women are doing so.
The Scotsman reports that some 13,000 divorces are granted in Scotland on an annual basis and as such an increasing number of women may face having to fend for themselves financially.
Poor money management could leave such females in danger of running into trouble with finance.
As such, it may be advisable for women to seek legal and financial advice before seeking a divorce to ensure that they are not left in the red, especially if there are children or other dependents to support.
Figures from Scottish Widows suggest that 7.3 million women are financially dependent on their husbands or partners.
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Monday, October 15th, 2007
The belief in common-law marriage is a "massive misnomer" held by a large number of people, according to a financial planning company.
Kelvin Lillywhite, financial consultant with Best Advice, stated that a large number of the population think that if they live together for a number of years, they are in a common-law marriage.
He added that his understanding was that such a practice was discontinued "in the Middle Ages."
Mr Lillywhite added that marriage clarifies a range of topics such as benefits that individuals are entitled to with regard to pensions.
"There are a lot of pension schemes that will give benefits to spouses. They may not pay that to a long-term partner," he said.
Figures released by the Office for National Statistics released figures last week which indicated that the number of unmarried but cohabiting couples has increased by some 65 per cent in the last ten years.
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Thursday, October 4th, 2007
Justice secretary Kenny MacAskill has welcomed a paper’s proposals for increased payment to criminal lawyers in the early stages of cases, it has been reported.
The Scottish government states that Mr MacAskill welcomed the proposition for payment increases with the overall aim of saving money through the early resolution of cases, thus avoiding excessive and unnecessary work.
Mr MacAskill stated that Scotland’s criminal justice system is going through its largest reforms "in at least a generation" and the reforms will mean that fewer cases needlessly go to court and those that do are dealt with more efficiently.
"As part of that work, this government wants solicitors to be appropriately and fairly paid and wants public funds to be used to support an efficient and fair summary justice system," he added.
Mr MacAskill concluded that the proposals – made together with the Scottish Legal Aid Board (Slab) – were aimed to avoid wasted effort and expense as well as reducing pressure on victims and witnesses of crimes.
Proposals in the paper bolster the summary justice reforms set out in the Criminal Proceedings etc (Reform) (Scotland) Act 2007, reports the authority.
Slab is responsible for the management of legal aid – which allows people who could not otherwise be able to gain assistance – in Scotland.
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Friday, September 14th, 2007
First minister Alex Salmond has hinted at possible changes to the Scottish judicial system, including the ‘double jeopardy’ law.
The principle allows suspects to be tried for the same crime twice and Mr Salmond stated in first minister’s questions that he would address the issue, but careful consideration was needed and that there should be no "knee-jerk" alterations to laws.
Mr Salmond added that there were a number of potential changes in Scotland’s legal system that could be considered.
Leader of the Scottish Conservatives Annabel Goldie told the Courier: "This will mean that victims of serious crime in Scotland – and their families – will have access to the same level of justice as currently available in England and Wales, which they have been denied for the past four years."
It was recently reported that calls for reform of the Scotland’s trial system were made in a report by retired high court judge Lord Coulsfield.
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