About Fiona Wayman

Fiona studied law at Glasgow University and graduated in 1997. She joined Mitchells Roberton in 1998 and served her traineeship here. She quickly became a very good court lawyer and now handles family law cases, divorce and separation. She has a steely determination to get the best for her clients and is a skilled negotiator. She takes the time to listen to clients with a view to seeking pragmatic solutions wherever possible.

Whose Home Is It Any Way?

When a relationship ends one of the most vexing concerns for many is whether one person can force the other to leave a shared family home.

There are three typical scenarios.

  • Firstly if a couple are married or in a civil partnership and the property is owned by only one person or the tenancy is in the name of only one person, the person who owns the house or holds the tenancy has the right to stay there. That said they cannot force their spouse or civil partner to leave, as a “non-entitled” spouse or civil partner has the right to continue to live there. If the property owner wants to sell they would need to obtain the consent of their spouse or civil partner .If that consent was unreasonably withheld then a court order would be required to waive the need for consent. The only way in which a spouse or civil partner can remove a former partner is to raise a court action and seek an exclusion order. The threshold needed for success in this is very high and an exclusion order is only granted for the protection of any spouse or civil partner or child of the family. It is frequently granted in cases of domestic abuse.
  • Secondly if both parties are joint owners or tenants then both have the right to occupy the home and again neither can evict the other unless an exclusion order is obtained. If one person wants to sell and the other does not then an action of division and sale needs to be raised for the court to order a sale. The other party can ask the court to postpone or delay the sale and sometimes the court will do this if there are children of the marriage and there is no alternative accommodation.
  • Thirdly if a couple are cohabiting and only one person is the owner or tenant the other is still protected and cannot be locked out or forced to move. However the cohabitant’s right to occupy is not automatic and he or she has to have the right declared by the court with a right to occupy, if granted, only lasting for six months although the court can extend it for another six months. Where cohabitants are joint owners or tenants then neither can force the other to move out and if one party wishes to sell and the other does not then an action of division and sale will need to be raised. Unlike spouses or civil partners cohabitants do not have the same rights to ask the court to postpone or refuse a decree of sale.

If you would like advice on any of the issues raised above please contact Fiona Wayman on 0141 552 3422 or by email fhw@mitchells-roberton.co.uk.

Family Law –Some Urban Myths

I have been practising family law for quite some time now and over the years it never fails to surprise me that many people still hold strongly to a number of misconceptions about family law in Scotland.

The woman will automatically get custody of the children- NO

In Scotland, the Children (Scotland) Act 1995 replaced the words “custody” or “access” with the words “residence” and “contact”. Basically when parents separate there is no legal requirement to have any orders granted in relation to children unless there is genuine dispute in which case a Sheriff or Judge will decide on the basis of what is in the best interest of the child. If it is considered that it is better for a child to stay with his/her father then residence will be awarded to the father.

Child maintenance stops when a child becomes 16- NO

A parent’s responsibility to financially maintain a child lasts until that child is 25 years of age if the child is still in full time education or vocational training. The duty is owed by both parents towards the child, so that a child over the age of 16 who is at college can seek maintenance from both parents. Normally when a child of separated parents lives at home, one parent fulfils the obligation to aliment by providing bed and board whilst the other parent pays child maintenance.

If a divorce is your fault you will be punished for that financially-NO

In Scotland the only ground of divorce is the irretrievable break-down of marriage. The breakdown may be proved in a number of ways, for example non-cohabitation for a period in excess of two years or one year if your spouse consents, or unreasonable behaviour on the part of the other spouse or adultery. A spouse’s behaviour even if unreasonable has no relevance to a financial settlement unless it can be shown that the behaviour has impacted adversely on the couple’s finances, such as a serious gambling habit.

A pension is not matrimonial property-NO

A pension has a monetary value and is counted as part of a married couple’s matrimonial property in the same way as money in the bank is treated as matrimonial property. The pension has a value based on how much is held within the fund at the date of separation. A pension can be divided on divorce by way of a pension sharing order and if such an order is implemented a portion of one spouse’s pension is removed from his or her pension fund and placed in a pension fund nominated by the other spouse. The sums are not paid out until retirement. Alternatively the value of the pension can be offset against another aspect of the matrimonial property, for example, the former matrimonial home so that one spouse receives less from the house because they have a larger pension.

My husband and I separated a couple of years ago – he has now inherited a large sum from his late father and I want half- NO

Money inherited or gifted from a third party is not matrimonial property. In addition any money or assets accumulated by a spouse after the date that the parties separated is not matrimonial property. You are therefore not entitled to any of your father in law’s estate.  Money that is inherited or gifted can be converted into matrimonial property if received during a marriage and for instance is used to buy a family car. In that event, upon divorce the money is not automatically reimbursed but account of the source of the funds can be taken account of, when negotiating how a couple’s assets are to be divided.

Unmarried couples have pretty much the same rights as married couples – NO

While many income related benefits and tax credits may not take account of the married status of a couple, this does not mean that cohabiting couples have the same rights as married couples on the breakdown of their relationship. The Family Law (Scotland) Act 2006 did bring in a number of changes to the law of cohabiting couples including rights to make a financial claim against your former partner if you can show that you have suffered economic disadvantage in the interests of the family. This is not the same as being able to claim a share of matrimonial property acquired during the period of the marriage. In addition it is only a capital sum that can be claimed and not maintenance, unlike married couples. On death the differences are also substantial. Married couples have an automatic right to inherit certain parts of their spouse’s estate on death, irrespective of whether there is a will or not. In the case of a cohabiting couple however, there is no automatic right and if there is a will which does not mention the surviving partner then they have no right to inherit at all. If there is no will, the surviving partner can make a claim against the estate of their deceased partner but must raise a court action to do so.

If you need advice on any family law matters I can help. Please contact me Fiona Wayman on 0141-552-3422 or by email fhw@mitchells-roberton.co.uk

Cohabitants beware! Some legal considerations of living together

Marriage by cohabitation with habit and repute (otherwise referred to as “common law marriage”) was abolished ten years ago. And whilst it is true that the Family Law (Scotland) Act 2006 ushered in some protection, it by no means provides cohabiting couples with the same rights as their married counterparts. Consequently, when two people move in together, they should consider whether they need to set down in writing what should happen in the event that they split up or one of them dies.

Unlike married couples, where assets acquired by either party during the marriage are generally considered matrimonial property, cohabiting couples do not have such a common pot. There are equal rights in certain household goods, money and property used for the running of the household, but otherwise property is not deemed to be shared. If one party has on balance suffered an economic disadvantage as a result of the relationship, there is a possibility that they will have a claim against their former cohabitant but it can still be difficult to predict whether a claim will be successful as each case must be considered by the courts on its merits. A claim must be raised within one year of the couple’s separation and unlike married couples is for a capital sum only and does not include maintenance. So while it may seem unromantic, it is worth a couple considering entering into a cohabitation agreement when moving in together, to avoid any arguments at a later date.

Likewise, cohabitants should consider how they wish their property to be dealt with in the event of their deaths.  If there is no will, a cohabitant still living with the deceased up until their death, can apply to the court for an order for payment or a transfer of property, provided their application is submitted within six months of the deceased’s death. If the deceased has made a will and simply left their surviving partner out of it, no claim can be made. Making a will and keeping it up to date could therefore save unnecessary heartache and potential family disputes when one of the parties dies.

If  you require any further advice regarding the above then please contact Fiona Wayman by phone on 0141 552 3422 or by email on fiona@mitchells-roberton.co.uk

Contact With Your Grandchild If Their Parents Divorce or Separate

“Surely, two of the most satisfying experiences in life must be those of being a grandchild or a grandparent.”  Donald A. Norberg

Around 10,000 couples divorce every year in Scotland and adoring grandparents may be the biggest losers, as contact with much loved grandchildren may be lost. In fact recent research carried out by some family focused charities has shown that 40% of grandparents lose contact with their grandchildren after divorce or separation, a quite disturbing statistic, given that a new Growing Up in Scotland survey undertaken for the Scottish Government reveals that as many as 69% of families rely on grandparents for childcare in one way or another. There are various reasons why grandparents may become involved in the care of children these days: parents may need to work full-time and the cost of independent childcare may be prohibitive and there are of course marital breakdowns. Also older people are living longer with good health and taking pleasure in more active retirements giving them time to care for their grandchildren.

Unfortunately grandparents do not as yet have automatic rights to see their grandchildren in the event of a divorce or separation. At present grandparents wishing to see their grandchildren must make an application to court for a contact order. The court will apply the same criteria as they would to an application from a parent-namely they will focus on the welfare of the child and the child’s best interests.

Losing contact is a difficult and heart breaking situation and it is vital that anyone facing this should get proper qualified advice.  It is best to try and reach an informal agreement with the parents first. Only if that fails should you ask the court to intervene. Going to Court should be used as a final resort as it can be expensive, take a lot of time and be disruptive for the child. But do, however avoid too much passage of time without seeing your grandchildren. The longer you leave it before taking steps to get satisfactory arrangements put in place, the harder it may become to achieve this.

If you are an estranged grandparent who is seeking contact with your grandchild I can help. Please call me on 0141-552-3422 or email me at fhw@mitchells-roberton.co.uk.- Mitchells Roberton family lawyers in Glasgow

Clare’s Law

A scheme that gives people the right to know if their partner has a history of domestic violence will be piloted in Aberdeen and Ayrshire. It will start in late November and run for six months.

The Scottish Disclosure Scheme, also known as Clare’s Law, is named after Clare Wood, a mother of one, who was murdered five years ago by her ex-boyfriend George Appleton at her home in Salford. Unbeknown to Clare Mr Appleton  had a history of violence against women, including repeated harassment, threats and the kidnapping at knifepoint of one of his ex girlfriends.

The chosen areas and dates for the Scottish pilot  project  were announced on 18th August at the latest meeting of the multi-agency board set up to develop the scheme. This body includes representatives from Police Scotland, the Scottish Government, the Crown Office, ASSIST Advocacy Service and Scottish Women’s Aid. The areas were selected as they have a “wide and varied cross-section of the population” and include people who may benefit from the arrangement.

Police Scotland say the pilot schemes will be monitored and evaluated carefully and hopefully we will see a reduction of domestic abuse enabling the plan to be rolled out throughout Scotland next year. The scheme is already functioning in England and Wales.

Assistant Chief Constable Wayne Mawson said “I find it extremely encouraging that more and more victims of domestic abuse have the strength and confidence to report domestic abuse, however we are not complacent. I believe the introduction of the Disclosure Scheme for Domestic Abuse Scotland  will not only provide  a mechanism to share relevant information about a partner’s abusive past with their potential victims , it will give people at risk of domestic abuse the information to assist in making an informed decision on whether to continue in the relationship.”

Disclosures can be triggered by victims, families or a member of the public concerned about a person, as well as public authorities such as the police and social work. The decision to disclose will rest with a multi agency forum taking all parties’ rights and needs into account.

Justice Secretary Kenny MacAskill  said “It is only right that people in relationships  should have the opportunity to seek the facts about their partner’s background if, for example, they suspect their partner has a history of violent behaviour. Tackling domestic abuse is a top priority for the Scottish Government and we have provided record funding to tackle violence against women.”

Vote for Love

In a previous blog, I spoke of the Love Commandos and the recent legislation introduced in Scotland regarding forced marriages. So it was with interest and glory that I read this month in the Stylist magazine that India’s most important khap panchayat (council) has agreed to lift a ban on inter-caste marriages after voting to allow marriage between different hereditary classes of Hindu society within its 42 villages- a decision which hopefully will begin to break the shackles of age old tradition.

Yet let us not forget that only in June 2007 Indian newlyweds Manoj Banwala and Babli were killed by order of a khap panchayat, a religious caste-based council among Jatts, in their Karora village in Kaithal district, Haryana. Such caste based councils are common in the inner regions of several Indian States, including Haryana, Punjab, and parts of Rajasthan and have been operating with government approval for years.

In the case of Manoj and Balbi the Khap panchayat’s ruling was based on the assumption that Manoj and Balbi belonged to the Banwala gotra, a Jat community and were therefore believed to be siblings despite not being directly related and any union between them would be invalid and incestuous. However, the couple’s commitment to one another transcended their willingness to abide by the societal norms and they ran away together on 5th April 2007 and married two days later at a Durga temple. Furious about the marriage Balbi’s relatives later kidnapped Manoj and Balbi firstly beating them up and then forcing Balbi to consume pesticide and strangling Manoj.

The case was brought to court and in March 2010 a Karnal district court sentenced the five perpetrators to be executed, the first time an Indian court had done so in an honour killing. (The death sentences were later commuted to life imprisonment). In her verdict district judge Vani Gopal Sharma stated “Khap panchayats have functioned contrary to the constitution, ridiculed it and have become a law unto themselves.”

There are 800 million Hindus in India and until now anyone marrying outside their caste has been shunned, with some becoming victims of honour killings. The Khap panchayat’s recent decision to allow youths of marriageable age to be free to explore their matrimonial options not only in their own caste but in other castes as well breaks the 700 year old tradition of marriage ban and this must be heralded as progress. Subedar Inder Singh head of the khap panchayat said “the current norms in marriage are 600-700 years old and times have changed.”

However, there is little doubt that the making of the decision has been greatly influenced by the constant growing army of bachelors in the villages and a skewed sex ratio making it difficult for young people to find a suitable match within the traditional defined thresholds. This has forced social institutions to look beyond and find solutions to the problems.

I am sure The Love Commandos will embrace the changes. They will see the effects if their voluntary workload begins to slow down.

If you have any questions please contact Fiona Wayman on fhw@mitchells-roberton.co.uk or telephone 0141 552 3422.

Prenuptial Agreements – The way forward?

The laws of divorce in Scotland and England differ in a number of ways and none more significantly than in the way matrimonial property is dealt with. In Scotland, what is considered to be part of the matrimonial pot is only that property which has been acquired during the marriage, i.e. from the date of marriage to the date of separation. As a general rule, anything you owned prior to marriage and anything you have received by way of inheritance or gift are not included and therefore should not be taken into consideration in any financial settlement. In sharp contrast, under English law all property owned by the husband and wife, either individually or jointly, is considered to be matrimonial property, regardless of when it was acquired. This is perhaps why, until now, prenuptial agreements have been generally acceptable in Scotland but not in England.

This discrepancy appeared to lessen with a Supreme Court ruling back in 2010 (the case of Radmacher v Granatino), where the court decided that a prenuptial agreement was binding in the case of a German wife and French husband who were living together in England. It was decided by the Supreme Court at that time that such an agreement should be given “decisive weight” in any divorce settlement but that the court should still have discretion to waive any pre or post marital contract particularly where it was unfair to any children of the marriage.

In most cases, prenuptial agreements clarify what each party is taking into the marriage and the fact that, if things don’t work out they expect to walk away with their premarital property (or at least it’s value if it has been converted into something else) irrespective of anything the couple have accumulated during the marriage. Provided the parties both took legal advice and the agreement was fair and reasonable at the time it was entered into, such an agreement is likely to be upheld in Scotland. Notwithstanding the decision in the Radmacher case, while couples in England are free to enter into such agreements they are not currently considered to be legally binding. To ensure that the terms of such an agreement are enforceable, it is necessary to ask the court to make orders that reflect the terms specifically and even then the courts have discretion as to whether or not they do so.

This may be set to change however, if the recommendations set out by the  (English) Law Commission in their report “Matrimonial Property, Needs and Agreements” are taken on board. The report recommends that the law in England should be changed to ensure pre-nuptial agreements are enforceable.In a draft bill, the Law Commission outlines plans that would allow married couples and civil partners to make a qualifying nuptial agreement about how their assets will be dealt with in the event that their relationship breaks down. The proposed reform would give couples greater autonomy and control over their finances, providing greater financial certainty in the event of separation. If the proposals are implemented, both parties of the relationship will require to seek independent legal advice and offer full financial disclosure as part of the process to ensure that the agreement is enforceable.

In the meantime, the courts are likely to deal with each agreement on a case by case basis and so only time will tell. In any event, it is to be hoped that the shift in attitude by the English courts will help to align the way matrimonial property is dealt with by the two jurisdictions and prevent some parties from potentially manipulating the situation and using whichever jurisdiction is more favourable to them where they have a choice.

How quickly can I get divorced?

Divorce can be extremely distressing yet surprisingly a question often asked is how quickly can a divorce be obtained. Of course the answer is: it depends.

For a divorce to be granted there has to be an irretrievable breakdown of the marriage with no prospect of a reconciliation. If you cannot demonstrate this then you cannot get divorced.

The irretrievable breakdown of marriage can be established if one of the following is true:

  1. Since the date of the marriage, your spouse has committed adultery and you thereafter ceased to cohabit together as husband and wife (this is and will continue to apply exclusively to heterosexual relationships even after same sex marriage is introduced).
  2. Since the date of the marriage, your spouse has behaved in such a way that you cannot reasonably be expected to cohabit with them.
  3. You have not cohabitated with your spouse for a period of one year and your spouse consents to the granting of the divorce.
  4. There has been no cohabitation for a period of two years.

A Simplified Divorce is the fastest way to obtain a divorce and is essentially a form filling exercise. You must not have cohabited with your spouse for one year and have your spouse’s consent or been separated for at least two years. This simplified procedure can only be used if there are no children of the marriage under the age of 16 and no financial issues to resolve. The relevant form can be downloaded from the court website and is completed by the individual raising the action who must then sign an affidavit at the end of the form stating that everything in the form is true. This affidavit can be sworn before a notary public (most often a solicitor), a Justice of the Peace or a Commissioner of Oaths. The form is then submitted to the court along with the appropriate fee (currently £107). A divorce order is usually granted within 4-6 weeks of lodging the relevant paperwork with the court.

If there are financial issues still to be agreed upon or there are children of the marriage under the age of 16 you must use the Ordinary Procedure, which will require the assistance of a solicitor. A list of the parties’ assets requires to be lodged with the initial paperwork when a financial order is sought. If the action is not defended by your spouse a court order may be passed within approximately 6-7 weeks from raising the action.

If the action is defended because there are young children and custody and contact are disputed, or a financial order is requested or indeed the allegation of adultery or unreasonable behaviour is denied then it is extremely difficult to state with any certainty how long proceedings will take.

If you have any queries regarding divorce please contact Fiona Wayman on fhw@mitchells-roberton.co.uk or phone 0141 552 3422 to talk to her.

The Scottish Government Passes Children’s Bill

On the 19th February 2014 the Scottish Parliament passed the Children and Young People (Scotland) Bill with 103 MSPs voting for it and with 15 abstentions. The aim of the Bill is to “transform” services. There are increased provisions for free childcare with three, four and vulnerable two- year- olds getting around 16 hours free care per week as from August 2014. The Bill also encompasses free school meals to all children in the first three years of primary school as from January 2015. Further the Bill lays out a plan to help young people in care, meaning that teenagers in residential, foster or kinship care would have the right to continue to be looked after until the age of 21. The appointment of a “guardian” for every child in Scotland also forms part of the Bill. This proposal is to nominate specific named persons from the NHS and councils to monitor every young person’s well-being from birth to eighteen.

Although the Bill has been passed it has not been without opposition. The Faculty of Advocates  previously issued advice to the Scottish Government when the Bill was going through the consultation stage ,saying that they believed  the Government was going too far with the new Children and Young People (Scotland) Bill. The plan that there should be an individual appointed (known as a “named person”) who is there to look out for all children generally, as opposed to only those who would appear to need looking out for, has come under criticism that it interferes with family life and could be in conflict with the European Convention on Human Rights.

In terms of the Children Scotland Act 1995, section 1(1) a child’s parents are the persons principally responsible for carrying out the functions mentioned in clause 19 of the new Bill, which include safeguarding and promoting a child’s health development and welfare and with offering direction and guidance. In the first instance it is the responsibility of a parent to seek assistance if this is required by their child. The Faculty of Advocates therefore argued that this part of the Bill could possibly dilute the legal role of parents, whether or not there is any difficulty in the way that parents are fulfilling their statutory responsibilities. It would appear to undermine family autonomy and therefore potentially result in interference with private and family life in a way that could violate article 8 of the European Convention on Human Rights.

At worst the Bill seems to imply that parents are not the people ideally placed to decide what is best for their children and when they may be at risk. Given that the number of parents who abuse or neglect their children is thankfully a minority, it would seem that the Bill is trying to use a sledgehammer to crack a nut. While some may say that parents who have nothing to hide should have nothing to fear, should we be interfering in family life to that extent? Could it just be the thin edge of the wedge that causes even more “Big Brother” legislation? And is it in fact legitimate or could it be in breach of our commitment to the ECHR? The Faculty of Advocates made their concerns clear but the controversial legislation has been voted through in spite of these doubts.

Scotland becomes 17th country to approve same-sex marriages.

This month Scotland voted overwhelmingly (105 to 18) to allow same sex marriages with the passing of the Marriage and Civil Partnership (Scotland) Bill. This now just awaits Royal Assent. Since 2004 Civil Partnerships have been available for same sex couples but some gay organisations felt that until the same rights were available to both same sex and opposite sex couples Scottish society would remain inherently discriminatory to some of its citizens.

The move was opposed by the Scottish Catholic Church and the Presbyterian Church of Scotland. However the new progressive legislation has put in place protections for religious bodies who do not wish to conduct same sex marriages although some other religious groups such as the Quakers  and Buddhists  back the change.

The Bill also includes provisions to allow belief ceremonies, such as humanist ceremonies as alternatives to religious and civil ceremonies. The Bill will further permit transgendered people to stay married-previously transgendered people had to divorce.

Scotland is the 17th country to approve same-sex marriages. The first was The Netherlands in 2001 and last year England and Wales, Brazil, Uruguay, New Zealand and France joined the list.