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Latest family law and divorce news and updates from Family Law Inverness. Telephone: 01463898650

Cohabitation Laws Criticised in Review of Scots Family Law

The Scottish Government recently published a review of Scots family law. The study considered the way the Family Law (Scotland) Act 2006 has worked in practice in the ten years since it was introduced.

The Family Law (Scotland) Act 2006 is one of the major pieces of family law legislation. It introduced rights for cohabitants and reformed the rights of unmarried fathers in Scotland. When the act was passed into law it was commended for modernising Scots family law and recognising the way the family dynamics have changed over time. However, many solicitors and stakeholder groups have criticised the Act for being unclear, poorly drafted and not going far enough to reflect the realities of modern family life.

The review was led by the Convener of the Justice Committee, Christine Grahame MSP, and heard evidence from a broad range of interested parties, including members of the legal profession, politicians and pressure groups such as Families Need Fathers.

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Guardianship Orders and Powers of Attorney

A recent Court of Session case has demonstrated the importance of Power of Attorney and Guardianship Orders when someone becomes unable to take care of their affairs.

Mary Gallacher died on the 31 March 2011 at the age of 96. She had been suffering from advanced dementia at the time when she signed a deed of disposition to transfer the ownership of her home to other family members. Her niece, Shelia Ritchie, was the executor of the estate and sought a reduction of this disposition on the basis that her aunt was incapax (lacking capacity) when the property was transferred. The executor is the person nominated by the deceased to wind up the estate by making a calculation of the estate, paying debts and paying out to the beneficiaries in accordance with the will and succession law. Ms Ritchie argued that her aunt did not have the mental capacity necessary to grant the disposition due to her dementia.

After hearing evidence from various medical professionals, the Judge, Lord Clarke, ruled that Ms Gallacher did not have the necessary mental capacity to transfer the ownership of her home and granted a deed of reduction. Lord Clarke said, “The medical evidence given by the pursuer’s medical witnesses, I found to be compelling and persuasive both in content and in the manner of its presentation . . . the appropriate mental capacity in July 2007 for granting a disposition of the kind with which the present proceedings are concerned, did not exist.”

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Recent Case Highlights Why Separating Couples Should Divorce

Many couples will separate and then wait many years before they get around to divorcing. A recent English case has demonstrated why separating couples should endeavour to end their marriage with divorce sooner rather than later.

Joy Williams, aged 69, had lived with Norman Martin for over 18 years when he died of a heart attack in 2012. The couple owned a house together as tenants in common, and this property was valued at £320,000.

Although Mr Martin lived with Ms Williams, he remained married to his wife. When Mr Martin died, his estate passed to his wife. There was no cohabitation agreement in place, and Mr Martin’s will had not been updated to reflect his relationship with Ms Williams.

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Court Rules Elderly Woman’s Sons Exercised ‘Undue Influence’

Lord Uist has granted a decree of reduction for properties that an elderly woman disposed to her sons on the grounds of “undue influence” and “facility and circumvention”.

The court heard how Mrs Audrey Matossian died at the age of 83 in 2010. She had been divorced and her previous husband had died in 2003. Mrs Matossian had three sons, Berj, 60, Richard, 57, and Alexander, 55. Alexander did not have a good relationship with the elder brothers.

Mrs Matossian had been the owner of three properties in Glasgow: the adjoining houses at 99 and 101 Drumover Drive and a flat at 592 Tollcross Road.

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Divorce Rates Highest in North of Scotland

Statistics released by the Scottish Government have revealed that divorce rates are highest in Shetland, one of the most northerly parts of Scotland. The average divorce rate across Scotland was found to be 2.8%, but this was more than double in Shetland with a divorce rate of 5.7%.

Other areas above the national average included South Lanarkshire at 4.7% and Glasgow at 3.6%.

The statistics are the result of the Scottish Government’s Scottish Surveys Core Questions which pooled data from three major surveys and interviewed over 21,000 people. This is the largest survey of its kind in Scotland and it aims to provide unprecedented insight into the lives of Scottish people.

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Rise in Cohabitation

Family structures have changed dramatically over the past 40 years. The Office for National Statistics (ONS) reported that whilst the married couple family remains the most common type of family in the UK, the cohabiting couple family is the fastest growing category. Between 2004 and 2014 the numbers of cohabiting families grew by almost 30%.

The rise in cohabitation has been coupled with a steady fall in divorce rates. The most recent ONS figures have shown that there were 114,720 divorces in England and Wales in 2013. This was a decrease of almost 3% compared to the previous year.

The ONS directly related the fall in divorce rates to the rise in couples deciding to cohabit rather than marry.

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Under-reporting a major issue for tackling domestic abuse

A new report by the European Union Agency for Fundamental Rights (FRA) entitled ‘Violence Against Women’ has revealed that around one in two women in Britain has been physically or sexually assaulted.

Commenting on the report’s findings, Citizens Advice has said that its research suggests there could be as many as half a million people who have not reported abuse.

"Domestic abuse can tear families apart and wreck lives. Ongoing physical and emotional abuse can be made worse by acute financial pressures,” said Citizens Advice Chief Executive, Gillian Guy.

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Calls for greater support for sibling carers

Rt Hon Alan Johnson MP has called on the Government to legislate so children raised by their older brothers or sisters get the recognition and help they need.

In Britain it is estimated there are over 45,000 siblings raising their younger brothers and sisters. In some cases this is as a result of parental death, or because of parental imprisonment, mental illness, drug and alcohol misuse or domestic violence – or a combination of these factors.

Many young people are forced to give up work in order to take on the care of their vulnerable younger brothers and sisters. Despite the needs of these children, most are living in severe poverty and do not have a right to practical support, such as bereavement counselling.

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Committee publishes report into same-sex marriage Bill

The Scottish Parliament’s Equal Opportunities Committee has published its Stage 1 report into the Marriage and Civil Partnership (Scotland) Bill.

The Bill was introduced in the Parliament in June of this year and covers the following key matters relating to marriage law:

- the introduction of same-sex marriage,

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Concerns over limited progress on domestic violence

The Chief Inspector of Criminal Justice in Northern Ireland, Brendan McGuigan, has raised concerns over the lack of progress made in how criminal justice agencies handle incidents of domestic violence and abuse.

He believes that strategic focus is required at both senior and District level within the police service to move things forward.

Reflecting on the 10% increase in the number of domestic abuse cases being recorded by police since 2009-10, Mr McGuigan said it was encouraging that more people were coming forward and reporting instances of domestic violence and abuse.

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Australia sees a growth in cohabitation

A recent report from Australia has provided an in-depth look at the changing dynamics of Australian families.

The AMP.NATSEM Income and Wealth Report Modern Family reveals that 78% of people apparently now cohabit before marriage, which is an increase of 72% compared to ten years ago. The past decade has also seen a drop in the nation’s annual marriage rate from 6.6 marriages per 1,000 people to 5.5.

AMP Chief Customer Officer Paul Sainsbury said today’s modern family is almost unrecognisable from the Mum, Dad and a couple of children households of recent decades.

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