Out with the Old and in with the New!

Next week sees the coming into force of the Marriage and Civil Partnership (Scotland) Act 2014.  On 16th December 2014 same sex couples will be allowed to marry in Scotland for the first time.  Given the formalities which require to take place before a marriage ceremony can be conducted, the first same-sex marriages will not take place until 31st December 2014.  This will indeed be a happy new year for some!

People in same-sex relationships will now be able to decide if they wish to cohabit, enter into a civil partnership, or enter into marriage.  I am sure it will not be long until some opposite sex couples decide they wish to enter into a  civil partnership! I am for equality, absolutely 100%, but time will tell if the institution of “civil partnership” will stand the test of time, if it will evolve to include heterosexual couples, or if it will be effectively phased out over many years to come.

If you are already in a civil partnership, this civil partnership can effectively be converted into a marriage. It can also be backdated to the date of the civil partnership, either by having a marriage ceremony if you so desire, or simply meeting with the registrar in the appropriate registration district.  This seems a very straight forward and sensible approach if civil partners, previously denied the right to marriage, wish to have the same legal rights and “status” as opposite sex couples.

Congratulations to the new Mr and Mr, and Mrs and Mrs of 2015!

 

Where Scotland leads is England following?

So, is the English legal system actually looking to the Scottish system for inspiration in divorce law reform?

There have been a number of reports in the media recently about the English Law Commission’s  four  year review of “nuptial” agreements and divorce pay outs.

Of course pre-nuptial and post-nuptial agreements have always been binding under Scots Law provided they are essentially fair. There is a long standing history in Scotland of couples regulating their financial affairs after separation by use of registered separation agreements, and pre-nups and cohabitation agreements  are also proving more popular.

The English courts have however not always felt bound by such agreements and can ignore or modify  them in family cases. It is now proposed that divorcing couples in England could set their own terms in a pre-nuptial agreement or decide on division of their assets in a legally recognised post nuptial agreement. The Commission goes further and recommends that divorced spouses should no longer expect financial support for life from their ex . Typically the support should not be paid for any longer than ten years after divorce or until the children reach secondary school age.

The Scottish divorce system has however been curtailing payments for continuing support of an ex-spouse since 1986, and awards of support for life are now very rare and generally the maximum an ex-spouse can expect is three years after divorce. The English Law Commission is now laying  emphasis on achieving financial independence for both partners, mirroring the clean break principle in Scots divorce law.

While the wider debate about Scottish independence is hotting up towards the September referendum, it’s worth remembering that Scotland already has a very different, independent  and unique legal system in this area of law.

Some clients I have spoken with recently have been unaware how different our divorce law is to England and on more than one occasion I’ve had to point out that in Scotland, unlike England, you can’t expect to get divorced first and sort out the finances later. Hopefully a potential disaster averted! But how many residents of Scotland know that when they read the press reports which tend to report on English cases or reform proposals?

Even with the proposed reforms there will still be scope for argument. What may be reasonable for one couple might not be for another. That is where the skills of a family lawyer will still be required. And so it has proven already in Scotland for nearly thirty years.

As specialist family lawyers, we at MTM can steer clients through the complexities of pre-nuptial and separation agreements as well as a host of other family law issues.

Love is lovelier…

..the second time around? We have noticed an increase in the amount of couples entering into a second marriage or relationship who seem clued up enough to look at getting a pre-nuptial agreement or cohabitation agreement before embarking on this new phase in their lives.
Romantic? Probably not. Necessary? In a number of cases, certainly advisable. Costly? Not compared to the cost down the line of possible litigation, quite apart from the emotional cost in the event of separation.
Many couples, particularly “Baby Boomers” who have been previously married/civilly partnered or widowed and who have assets they wish to protect – such as business interests earmarked for children of the first relationship, family trust funds or perhaps wealth built up before meeting the new partner – may wish to ensure that these are “ring fenced”. Quite often both partners , if of a certain age, will wish to ensure their wealth (or that inherited from a deceased partner) will pass to their children or other family members in preference to their new partner, who may in turn have their own assets they wish to protect.
Of course in many instances it can sometimes just be bitter experience of divorce or separation which ensures that a client will look for this added protection. Once bitten…??!
If there is any doubt about the best course of action it’s best to consult a family law solicitor sooner rather than later. At MTM we are well placed to offer this specialist service and hopefully make the transition just a little easier.