“There is nothing more expensive than a missed opportunity” H. Jackson Brown, Jnr
The Family Law (Scotland) Act 2006 Sections 28 and 29 introduced the possibility for former cohabitants to make a claim upon separation or death, however there are very specific deadlines and differences in the potential claims a former co-habitant may apply for, compared with spouses.
Crucially, if you have separated from your former cohabitant, you need to make your application under Section 28 not later than one year after the date on which you ceased to cohabit.
One school of thought is that, if parties have chosen not to marry or enter into a civil partnership, they ought to be free to move on from their relationship more quickly than a couple who have entered into the formality of marriage or a civil partnership. The trouble is, that does not take account of the fact that following upon separation one or both parties may be very upset. It could take either or both of them some time to come to terms with the separation and seek advice if they wish to consider making a claim. There may even be a dispute as to whether they were “cohabitants” in the first place or a dispute about the date of separation.
Section 28 claims are often very complicated and each claim must be considered very carefully on its merits or otherwise. This means that it is extremely important that you consult with an expert family lawyer at the earliest available opportunity so that you can take advice if you may have a possible claim. You don’t want to find that you miss the deadline to make the claim.
The Family Law (Scotland) Act 2006 also introduced the possibility of making a claim following the death of a cohabitant who had not made a Will.
Crucially, any application under Section 29 requires to be made within six months of the date on which the deceased died.
Again, each claim must be considered very carefully on its merits by an expert family lawyer as to the possibility or extent of any such claim. Given that there are only six months within which one can make the claim, it is of the utmost importance to seek urgent legal advice at the earliest possible opportunity.
Time for a Reform of the Law relating to former cohabitants?
Whilst at first blush the provisions in Section 28 and Section 29 of the Family Law (Scotland) Act 2006 may be seen as a welcome development in family law in Scotland, the reality is these claims are by no means straightforward.
This year, the Law Society of Scotland has produced a consultation document considering the reform of cohabitants’ rights. The objective of the project is to set out proposals for change to the law in relation to cohabitants and their rights to claim under Sections 28 and 29 of the Family Law (Scotland) Act 2006. For more information about the project, please see https://www.lawscot.org.uk/news-and-events/news/law-society-launches-rights-of-cohabitants-consultation/
The Law Society of Scotland consultation document refers to the unreported case of Hendry v. Bruce and links to an article I wrote (while at my previous firm, Brodies LLP) which was published in the Journal of the Law Society of Scotland see http://www.journalonline.co.uk/Magazine/59-10/1014551.aspx In that particular case, the Defender was successful in arguing that the Section 29 claim was time barred.
If you are considering whether to make a claim under Section 28 or 29 of the Family Law (Scotland) Act 2006, please do make an appointment to speak with one of our expert family lawyers without delay. In our experience, the deadlines pass very quickly, and it would be unfortunate to look back with regret, and view a failure to make a claim in time as a lost opportunity.
You can find information about the costs for a meeting with one of our expert family law team and how we charge our time on our website at www.familylawmattersscotland.co.uk/our-fees
We are here to help, family law is our business, and where your family matters.
Family Law Matters Scotland LLP is an award-winning boutique family law practice. If you would like to make an appointment to speak to one of our solicitors, please contact Konnie, our receptionist on 0141 420 2430.
N.B Please note the contents of this Blog do not constitute any form of legal advice and you should always obtain individual advice as to your rights from a family lawyer.
Yesterday Sally Challen won an historic appeal. She is currently serving an 18 year sentence for murdering her allegedly abusive husband. In the appeal, she asked the Court to downgrade her conviction from murder to manslaughter. She argued that his controlling behaviour was a provocation and should be taken into account in the same way that physical abuse can be taken into account. Her conviction was quashed and she now faces a retrial.
Although this is an English case, it touches on the issue of domestic abuse which knows no borders. I have been asking people over the last few days about whether they have heard of the term “coercive control”. Mostly people aren’t quite sure about what it means.
I have been thinking about some of the cases which have left a mark on me. The first time I really began thinking about coercive control (although I didn’t know the term at the time) was about 25 years ago when a woman came to see me for advice. She was pale, thin and looked weary. She worked full time. Apart from that, every moment of her life was under her husband’s scrutiny. She needed his permission before making any decisions. He insisted that she give him her wages. He then gave her bus fares to go to work. They shopped together and he paid. In spite of working, she had no access to money at all. She couldn’t buy herself a coffee. She told me that she ripped her tights at work and had to borrow money from a work colleague to buy another pair. She had been terrified to ask her husband for the money to repay what she borrowed. He didn’t believe her explanation. She bleakly asked if I could help her. I was a young, keen solicitor at the time. I had no doubt that she had grounds of divorce and I explained that. The information was overwhelming for her. She wanted to think about it before making a decision and left my office. She never came back. I still think about her and wonder if she ever left him. 25 years later I have a much better understanding of how hard that would have been.
The Domestic Abuse (Scotland) Act 2018 comes into force in Scotland in April 2019. This will widen the meaning of domestic abuse by making both physical and psychological harm a criminal offence.
Not every situation will meet the test of criminal law. If you need advice about your situation and the other protections available we can help.
We have recently moved to our new city centre location. One of the advantages of planning an office space from the start is creating a space to accommodate the needs of the Practice and the type of work we undertake. No detail has been left unconsidered even down to the size and shape of the table in our new meeting room! This is because we are a Practice that offers Mediation. We have three Law Society of Scotland Accredited Mediators in our Practice; Janie Law, Jane Blackwood and me, Michaela Hinchin.
We are all members of CALM SCOTLAND and we also represent clients in Court regularly. This is very important when you are considering your choice of Mediator. You see, as Lawyer Mediators we are uniquely placed to provide information if required about the expense of the Court Process and other information that may be helpful during the Mediation process. The reality is that Mediation does not exist in a vacuum. Often, we are referred clients who are in the middle of a litigious Court case. When this happens the parties’ lawyers then agree with the parties who to approach to be the Mediator. Clients need their Mediator to be savvy with the realities of the true cost of litigation. Those costs are both monetary and emotional and time consuming.
At Family Law Matters Scotland LLP we deal with a wide variety of cases at Mediation. These include but are not limited to the following:
- Residence and Contact.
- Sorting out holiday plans.
- Choice of school or nursery.
- Civil Partnerships
There are many misunderstandings about Mediation. In an effort to clear these up here is some helpful information about CALM Mediation.
- It’s entirely voluntary, you can walk away at any time.
- The Mediator is totally impartial and I mean totally.
- You decide what you want to mediate about.
- There are no lawyers there, just you and the Mediator.
- You may find that a few sessions will do it not years of litigation.
- You stand a much better chance of staying on reasonable terms with your ex.
- The Mediator is trained in all sorts of skills.
- Although you may have issues in dispute it’s not an adversarial process.
- You can achieve so much more in a two hour session than the number of trees that need to be felled in conventional lawyer correspondence.
- You meet face to face with the other person you are to mediate with not texts and emails that make you angry and stressed out.
As experienced Family Lawyers we know that one size does not fit all when it comes to sorting things out. There are times when seeking a decision by a Court is the only way to get matters sorted out. However, there are other times when you would be better placed to reach decisions together at Mediation. It’s worth noting that many people say that they’ll see each other in Court. Yes, you can do that and be left hanging about for ages and cost yourself so much more in money, time and stress.
Mediation is less expensive and more efficient than going to Court or going to a full Court Hearing if you are already in Court. It also means that you come to our lovely new office and have a cup of tea or coffee and meet with your Mediator at a mutually acceptable time. You don’t get a cuppa in the Court room and the Court allocates dates on the Court’s availability not yours.
We have recently moved our office premises to our new location to provide comfortable and bright accommodation in the heart of the city centre. So, before you say ‘I’ll see you at Court’ you may wish to think about saying ‘I’ll mediate with you at 19 St Vincent Place’. You will be warmly welcomed with a cup of tea.
If you have any enquires about CALM Mediation then please check out the CALM Scotland website and our own website. At Family Law Matters Scotland LLP we have a dedicated Mediation support team you can call with enquires about how to commence Mediation. Please contact Konnie Daskalou on 0141 420 2430 for further information about Mediation.
For most of us the summer holidays are now a dim and distant memory. The children are back at school, the weather has turned, and the shops are already displaying Hallowe’en and Christmas goodies.
Autumn blues aside, October is a good time to start looking forward to thinking about the arrangements for children over the festive period.
Christmas is a magical time for children, and for those who have parents in separate households, it is important that they are able to spend quality time with all of the people who are important in their lives. It isn’t a case of one size fits all. Much will depend on things like geography, the ages of your children, and other events which are planned. Some families operate a “year about” pattern, so the arrangements for this year may depend on what happened at Christmas 2017. The thing to focus on, is what will work best for your children in their particular circumstances.
It can be very stressful for parents who are unable to reach an agreement, especially for those who need to make an urgent application to the Court in the weeks running up to Christmas, and are unable to make any plans until the Court makes a decision. That situation can also be stressful for the children themselves. However, with some careful consideration at an early stage, factoring in family celebrations and other events and commitments throughout the festive period, it is often possible to agree arrangements with the other parent at an early stage, so that everyone can relax and enjoy this special time.
Whether you have consulted us before or whether you are new to the firm, please do not hesitate to have a chat with one of our expert team if we can assist.
I hope that you all get what you want for Christmas, even if it is just to keep the stress levels to a minimum.
As you will often hear New Year is a time when we all consider things we may do differently or change in our lives. So why is that?
Many people view New Year as a time for a fresh start. We are often consulted after New Year by clients looking to change their relationship status.
You may assume I am referring to separation, and we do tend to notice an upsurge in requests for advice about separation and divorce in January; however many people also become engaged at Christmas and just like Harry and Meghan they are planning their wedding. Some decide to cohabit for the first time and are planning where they are going to live. Others might decide to start a family, whether that’s in the conventional way or by looking into adoption or surrogacy.
No matter if you are contemplating ending your relationship or are just starting the plans for it, you are about to embark on some of the most significant financial decisions you may make in your lifetime. You need the right advice.
Emotions may play a huge factor in how you will approach matters. If you have just become engaged or moved in together you will be hoping that the future is rosy. If you are thinking of ending your relationship you may be feeling jaded and sad. You may also be worried about getting expert family law advice.
Finding the right family lawyer for you can be a challenging prospect. At Family Law Matters Scotland LLP we pride ourselves on being approachable and looking at all of the options to achieve tailored solutions. This way you know your family lawyer will not only be able to give you good advice, but also guide you through in a sensitive, practical and cost effective way.
Why not take a look at our team’s profiles and book an appointment if you need advice? The first hour of a consultation with any new client is charged at a fixed fee of £150 including VAT.
All we do is Family Law and our office is designed around you, the client. So if you want to make an appointment please do so and have a cup of tea and a discussion with one of our expert team.
It could be the first step in your journey of change.
I hope 2018 will bring you closer to whatever is important to you.