Removing a child without authority of parents or others having parental rights and responsibilities
Contact with children is often referred to as “access”. The term “access” has not been used by the Courts since the Children (Scotland) Act 1995 came into force. The Courts are now asked to make an award of “contact” with a child. That is time a child is to spend with parents, family members or other interested parties that the child does not live with.
An Actuary is a type of accountant who can carry out valuations of assets such as pensions.
Correcting, changing or expanding on the written arguments of the parties in a Court action such as a divorce.
A person commits adultery if they have a sexual relationship with someone of the opposite sex other than their spouse at any time after the date of their marriage and before the date of divorce. There is no minimum period from the point of separation we have to wait before raising divorce proceedings on this ground.
Adoption results in an adult being given the role of parent to a child under sixteen years of age. Adoption ends the role of a biological parent as the parent to the child (unless the adult adopting the child is a step-parent in which case they only take the place of the mother or father). Adoption ends the child’s right to inherit from the biological parent.
Advice & Assistance
Advice & Assistance is a form of Legal Aid for work undertaken by Solicitors before raising Court proceedings. This includes attempts to negotiate an amicable agreement on the matters in dispute between parties to avoid Court proceedings. In the event Court proceedings do require to be raised a Civil Application for Legal Aid must be made.
An Affidavit is a sworn written statement containing the evidence of a party or witness. The document contains the evidence of that witness as though they were testifying in person in court. If evidence is given by way of Affidavit, it may be unnecessary to attend court in person although in some circumstances it is only the witness’s primary evidence or evidence in chief that is given by Affidavit and that witness may still be required at court to answer questions in cross examination. It is perjury to lie in an Affidavit. Affidavits are often used as evidence in uncontested divorce actions.
Couples often reach agreement as to the care arrangements for the children and financial matters following their separation. The agreement reached is set down in a written document which is usually called a “Minute of Agreement” or a “Separation Agreement”. The Minute of Agreement should provide a full and final settlement of all financial claims arising from the parties’ relationship. The agreement can also provide for the arrangements for the care of the children. The Minute of Agreement is a legally binding contract between the parties. It is usually registered in the Books of Council and Session. An agreement that has been registered for “execution” is the equivalent of a Court Decree in respect of any provisions for payment of money.
Parents have an obligation to financially maintain their children. If a child has a principle home with one parent, the parent with whom the child does not reside will have an obligation to pay aliment to the parent with whom the child does reside. Aliment is a sum of money paid weekly or monthly to maintain that child until the child is 18 years old (providing they remain in full time education). Payment of child aliment can be agreed between the child’s parents directly and will often be reflected in a written agreement. But if no agreement is reached, the matter will be regulated by the Child Maintenance Service.
Parents have an obligation to maintain their children until they are 25 years old if they remain in full time education. Aliment for a child between the ages of 18 and 25 years old is payable to the child directly by the paying parent and is not paid to the other parent.
Spouses also have an obligation to support one another during the marriage. Spousal aliment is a weekly or monthly payment one spouse may claim from the other between separation and divorce. The amount of spousal aliment is assessed on the basis of the reasonable needs of the party who is claiming aliment and the paying party’s ability to pay with reference to their income and resources.
An order made by a court (and there has to be a good reason given) to stop someone getting rid of money or property. The order can also provide that they are to give this money or property back or to explain an account to the court for the financial arrangements involved. This order is designed to avoid a person entitled to receive money or property from being deprived of it.
An Anti-Nuptial Agreement is an agreement entered into by couples before their marriage. This is often referred to as a Pre-Nuptial Agreement. An Anti-Nuptial Agreement is designed to be a binding contract to make provision for what will happen to certain assets that the parties own in the event of their separation.
An Appeal is an argument to the Court to change or cancel a decision made by a lower Court or Sheriff. An Appeal is usually lodged where one party believes that the Court has made a mistake in granting the order by not taking into account the factual information presented or has erred in law.
Arrest (Power Of)
Powers of Arrest are often attached to interdicts (see definition of interdicts under I). The Power of Arrest entitles the police to arrest a person without a “warrant to arrest” if they are considered to be in breach of the interdict.
Is money or property taken from or kept aside for payment whether because of a court order or following-up on a “registered minute of agreement or separation agreement”.
Arrestment on Dependence
To temporarily freeze money or goods which are held by a third party which may be owed by one party to another until the court determines the financial matters between the parties to a court action.
This is an independent solicitor appointed by the court to investigate the welfare and circumstances of a child usually in contact and residence cases. The court will specify what exactly they want the reporter to investigate and who the reporter should speak to. The reporter will usually complete a written report for the court summarising their investigations and the report will normally make recommendations to the court. It is the Sheriff or Judge who will decide whether to make an order and if so he or she will decide what order to make.
Behaviour that is unreasonable for your spouse to live with is an immediate ground for divorce. You cannot found on your own unreasonable behaviour as a ground for divorce. It is not a defence to an action of divorce that the alleged unreasonable behaviour is the result of mental illness.
The welfare of a child and therefore the best interests of a child are the paramount factor the Court must take into account when any orders are sought in respect of that child. The court is often asked to regulate the arrangements for the care of a child by deciding which parent the child should live with and what contact the child should have with the other parent. A Court should not make an order in respect of a child unless it can be shown that it is better for the child that the order be made than that no order be made at all.
A CALM Mediator is a Solicitor who has been trained in mediation. Couples can agree to mediate on the arrangements for the care of their children or the financial matters arising from their separation with a view to reaching an amicable agreement.
Capacity is whether or not any person (including a “child”) has sufficient understanding to give a view or to give instructions to a Solicitor that can be taken account of by the Court in making decisions.
A capital sum is a sum of money paid by one party to another to reach a fair division of the property acquired during their relationship. The capital sum can be payable as a result of an agreement reached by the parties and formalised in a Minute of Agreement or as ordered by the court. It can be agreed or ordered that the capital sum will be paid by instalments.
Child Welfare Hearing
A Child Welfare Hearing is a hearing held in private at the Court following the raising of a Court action where the Court is being asked to make orders in respect of a child. The orders sought are usually to regulate the arrangements for the care of the child such as where the child shall live and what contact they will have with the other parent and any other “interested parties”.
Children can be referred to the children’s reporter for a number of reasons. Often because there are concerns about the child’s care at home. The children’s reporter then decides whether the child or young person should be referred to a children’s hearing. Panel members go to children’s hearings and make legal decisions about how to help and protect the children and young people who come before them. They have the power to remove the child from their home and put them in care or to make orders to ensure that the social work department can supervise the care of the child.
A Citation is a document served with Court papers confirming that the person on whom the papers are being served is required to answer the papers enclosed with the Citation and the timescales for responding to the Court.
Civil Partnership is a recognised legal status for those of the same gender who wish to formalise the commitment of their relationship and to obtain rights under the law equal to the rights of married couples. This includes rights in respect of property and tax. Mixed sex civil partnerships are expected to become available in June 2021.
CMS – Child Maintenance Service
The Child Maintenance Service has replaced the Child Support Agency (CSA). The Child Maintenance Service has authority to decide who pays child maintenance (sometimes called aliment) and how much, for children up to the age of 19. In the event an amicable agreement cannot be reached between parents on the level of child maintenance to be paid, the Child Maintenance Service has exclusive jurisdiction to assess the appropriate level of maintenance where parents reside in the UK and or are employed by a UK based employer.
Cohabitants were couples living together as if they are husband and wife.
The Family Law (Scotland) Act 2006 gave limited rights to cohabitants to make financial claims. It is possible for a cohabiting couple to enter into a “Cohabitation Agreement” before or during the cohabitation to agree what should happen with their finances and their assets in the event of their separation.
Collaboration is a special type of “alternative dispute resolution” in which couples get around a table with their individual lawyers to try to discuss and resolve as many as possible of the financial, child related and other issues resulting from their separation without going to Court. It is usual for a binding Minute of Agreement to be entered into at the conclusion of the Collaboration.
Common Law Marriage
Common law marriage does not exist in Scotland. There was an irregular type of marriage called marriage by cohabitation with habit and repute which was abolished under the Family law (Scotland) Act 2006. However, for any couples who were living together as though they were husband and wife before May 2006 (and everyone thought that they were married) it is still possible to raise a court action of declarative of marriage and divorce in the event of their separation.
Compulsory Supervision Order
A compulsory supervision order is a legal order granted by the children’s hearing (or a Sheriff) which means that the Local Authority is responsible for looking after a child or young person. These orders are granted in respect of children for whom the social work department have concerns. The order can contain conditions such as where the child should live.
Contact is the time a child spends with a parent or other family member who does not live with them. Contact was formerly known as “access”. It is in the best interests of a child that the arrangements for contact are agreed amicably between the parties. However, in the event it is not possible to reach an amicable agreement on contact a Court action must be raised to regulate the arrangements for contact.
Corroboration means that there are two separate sources of evidence to prove a fact such as two witnesses speaking to the same event. In many family actions, such as divorce, the Court will require “corroboration” of the facts being put before the Court before making an order. For example the Court cannot grant divorce without the evidence of an independent witness outside of the marriage who can speak to the grounds of divorce, such as the period of the parties’ separation. (Corroboration is not required if the parties are using the Simplified Divorce Procedure.) Some orders sought in Court for monetary claims can be corroborated by documentary evidence such as bank statements.
Court of Session
The Court of Session is Scotland’s highest civil Court and sits in Edinburgh. The Court of Session hears Appeals in respect of decisions from the Sheriff Court and Sheriff Appeal Court as well as hearing certain cases for the first time. The Court of Session has “exclusive jurisdiction” over certain cases such as child abduction cases under the Hague Convention.
Craves are the orders parties ask the court to grant in an Initial Writ such as divorce or a court order as to where a child lives.
The Child Support Agency was abolished and replaced in 2012 by the Child Maintenance Service.
Curator Ad Litem
A Curator ad litem is appointed by the Court to represent the interests of a child (or on occasion an adult with incapacity) in a Court action. Usually Curator ad litems are appointed in cases where the Court is being asked to regulate the arrangements for the care of the child and in particular where the child should live. A Curator ad litem can become a party to the action of they consider that it in the best interests of the child for them to do so.
Custody is the “old” word for what is now called “residence”. The residence of a child is where a child lives. The Court will only make an order for residence if where the child should live is in dispute. An order for residence does not deprive any other person with parental rights and responsibilities in respect of that child of those parental rights and responsibilities. A residence order only decides where a child should live.
Declarator of Paternity and Declarator of Non-Paternity
Declarator of Paternity is an order of the Court to find someone to be the biological parent of a child. Declarator of Non-Paternity is an order of Court finding someone registered as a parent or presumed to be the biological parent of a child not to be the parent. The Register of Births can be changed as a result of a Declarator of Paternity or Declarator of Non-Paternity on the application of a person who has parental rights and responsibilities in respect of the child.
Defences are the written “answers” and explanations to a Court case as to why the Court orders applied for should not be granted, or, alternatively should not be granted in full. Defences in family actions can include craves (request) for any orders the Defender to the action would like the Court to make.
A defended action is a Court case in which a person receiving the Court papers has lodged Defences to dispute the case against them.
Desertion was an old ground for divorce prior to the Family Law (Scotland) Act 2006. Desertion was abolished as a ground for divorce on 4 May 2006.
Diligence is carried out by Sheriff Officers on the instructions of Solicitors to enforce payment of money provided for in a Registered Agreement or a Court order.
Dissolution (Civil Partnership)
Dissolution of a Civil Partnership is when the Court makes an order that the union of the civil partnership is at an end. The marriage equivalent to dissolution of a civil partnership is divorce.
Divorce is when a Court makes an order that the union of marriage is at an end. The civil partnership equivalent is “dissolution”.
The country in which a person is domiciled is the country in which they consider their “permanent home” to be, even if they are not residing in that country at present. A person’s place of domicile is a ground of jurisdiction in some Court actions.
Evidence before a Court can take many forms. It can be a witness giving oral statements in Court and being cross-examined, it can be documents lodged in a Court action in support of that action which are then spoken to by the witnesses. Evidence can also be given by way of Affidavit which is a written statement that is sworn by the witness to be the truth.
Exclusion Order is an order made by the Court telling a person who has rights to live in a property that they cannot return to live there or indeed attend at that property.
Expenses of a Court action can either be agreed between the parties or the Court can be asked to decide if one party should pay the other party’s costs. Often a Court will not make an order that one person should pay the other person’s costs in a family action. If the Court does award expenses the expenses recovered from the paying party often do not meet the full costs of the case.
Under Family Law in Scotland as it stands “fair sharing” means that all the property and the debts acquired during the marriage are divided and shared between the parties. The presumption is that “fair” means “equal”. There are arguments to displace the “equal sharing rule” on which advice should be taken from a Solicitor.
A family home is where a husband and wife, civil partners or cohabitants, live together. A property becoming a family home does not necessarily mean that both parties will have financial claims in respect of that property in the event of their separation.
Grounds of Divorce
There are only two grounds of divorce in Scotland (1) the recognised gender change of either party to the marriage and (2) the irretrievable breakdown of the marriage. However, the ways in which the law states that the irretrievable breakdown of the marriage can be established are often referred to as the “grounds for divorce.” The “immediate” grounds for divorce are adultery and unreasonable behaviour. There are also two grounds based on the length of time the parties have lived separately for. These are also referred to as the “no fault grounds”. That is a period of separation is excess of one year where the “defender” consents to the divorce or a period of separation in excess of two years (no consent required.
Grounds of Referral
The grounds of referral are the grounds a Reporter has to refer a child to the Children’s Panel for the Panel to consider making protective orders.
A parent with parental rights and responsibilities in respect of a child can appoint someone to be a guardian to their child in their Will. A Court can also appoint a guardian to a child in a Court action. Whether appointed by the Court or as a result of a Will the guardian has parental responsibilities and rights to the child similar to a parent when the guardianship comes into effect. The guardianship under a Will does not come into effect until the writer of the Will’s death. A court order is immediate.
Has to do with which court family proceedings can be raised in – sometimes there will be more than one possible choice of court. A person’s “habitual residence” is the place where someone normally resides. Sometimes in certain actions the Court decides if it has jurisdiction based on the place where the parties last habitually resided together.
Means what we would more commonly describe as “a mortgage” over a property.
IFA (Independent Financial Advisor)
Your “family lawyer” is not normally allowed to give you “independent financial advice”. You will have to be referred in most cases to an IFA to receive specialised independent financial advice on things like pensions/pension share orders, mortgages, endowment policies and any transfers of financial assets and products.
Is the court document that the person first raising a court action will draw up to start the action. The Initial writ sets out for the court the orders that are being sought in the action (e.g. divorce; orders to do with children; transfer of property etc) and the reasons why such orders should be made. The Initial writ is the first step in formal court proceedings hence the name.
Is a court order in Scotland preventing somebody from doing something, usually which is harmful to someone else. (e.g. to stop them behaving badly to someone else, to stop them coming to a house or to stop them getting rid of assets etc.) There has to be an argument put to the court before the court will make an “interdict” order. In England they have a similar order called an “Injunction”.
Is a written court order or judgement. It may be a procedural order, interim order or a final judgement.
Is a court document that both sides’ solicitors will draw up and sign once a settlement or parts of an action are agreed. It tells the court what orders to grant. There can also be a “joint minute of agreement” signed by both parties to an action or in a separation situation which sets out detailed arrangements which are agreed such as where children live, contact arrangements, financial arrangements etc. This agreement is then usually registered to make it legally binding and enforceable as if it were a court order.
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Legal “Advice & Assistance”
Is a type of “legal aid” which is for work that a solicitor does for a client prior to going to court such as giving initial advice, doing letters and negotiating settlements etc. It does not cover any work carried out in court proceedings. Eligibility for this type of legal aid is based on the person’s disposable income and/or if they are in receipt of certain benefits.
Is financial assistance from the government for legal advice. There are different types of legal aid for civil cases and criminal cases. For civil cases, such as divorce, legal aid comes in two forms. Firstly, “Advice and Assistance” -which covers work done before going to court and secondly, “Civil Legal Aid”- which covers actual court actions. To qualify for Civil Legal Aid a person has to show firstly that they have a case to argue (ie, that their case has the “merits”), and secondly that they qualify on financial grounds. People who are entitled to legal aid sometimes often do not get their whole costs paid for and may have to give back part of their eventual financial settlement to the legal aid fund to pay for some or all of their costs
This is something many people ask for when discussing matters with a solicitor for the first time. Most people mean they want an agreement about their separation particularly what is to happen with the children/money matters etc without fighting about it in Court. If a married couple wish to separate but for religious reasons do not want to get a divorce they can apply to the court for an order known as a “Legal Separation” to sort out all their financial issues etc in the same way as a divorce would. This is now very rare and most people think of a legal separation as the legally binding separation agreement (joint minute of agreement) they sign to sort out their arrangements.
The date of marriage is key in providing the starting point (in most cases) for when to start calculating the marital finances to do with separation/divorce
This can be any place provided as one for the couple to live together, can be a first and/or second home and other places such as boats, caravans etc
Generally speaking, this means the assets that a married couple have acquired during their marriage whether just in their own names or in joint names from the date of the marriage to the date of separation. There are some exceptions for example if a property was bought for use as a family home by the couple prior to the marriage. Before working out what would be a fair way to divide up the matrimonial property on divorce any matrimonial debts are taken into account first.
This is another method of resolving disputes. There are various forms of mediation, such as “CALM mediation” and “family mediation” which is part funded by the family mediation service. There are also other agencies such as “Relate” who help couples agree things without going to court. See also “collaboration”, for another alternative method to resolve family disputes which is becoming more popular and our links page for further information
A mortgage is a loan taken out to buy a house which is secured over the house. Loan documents are signed whereby if payments are not kept up for the loan (mortgage) then the property over which there is a “mortgage” can be repossessed by the Bank or building society who gave the loan in the first place. They can then sell the property and will use the money they get from the sale to pay off the loan and any missed payments. If there is any money left over after paying the debt (mortgage loan) that is then paid to the original owners of the house.
Is the word for an application made by a solicitor on your behalf to the court to ask the court to do something. It can be for almost anything, but most commonly it is to ask the court to make an interim order or to make procedural arrangements to progress the case. It might also be to ask the court to fix a hearing for example to decide on something.
Is a married partner who lives in a “matrimonial home” (see above) but who does not have their name on the title deeds. The non-entitled spouse usually still has certain rights to do with occupying the property (“matrimonial home”).
Is a type of court order to stop someone harassing someone else. Usually there requires to have been a course of conduct or behaviour to justify it. For example, it might be needed if an ex-partner is harassing you after you have separated. If such an order is breached it can lead to arrest and imprisonment.
Are the rights that a spouse has to occupy a “matrimonial home” at the end of a marriage. A non-entitled spouse, for example, a cohabitant, may apply to the court for occupancy rights depending upon their circumstances.
Is a court hearing at the Sheriff court where both sides are usually required to be present (unless advised otherwise by their representative), and at which the court will expect to be informed what stage the case is at and what the points in issue are so as to determine the best way forward. Usually the future procedure will be the fixing of a proof. There are no Options Hearings in Court of Session cases.
Can include an action of divorce where there are children under the age of 16 or an action dealing with outstanding financial matters arising from a relationship.
Means someone, not the applicant person’s spouse or partner who is a “third party” to the proceedings with whom it is alleged there has been an amorous “association”.
Parental Rights & Responsibilities
These are listed in sections 1 and 2 of the Children (Scotland) Act 1995. Parents who have Parental Rights and Responsibilities have certain legal rights in relation to their child/children. Parental rights are given to parents in order that they may fulfil their parental responsibilities so the two are intrinsically linked. Mothers and married fathers automatically have full parental rights and responsibilities in respect of a child, as do unmarried fathers, who are named on a child’s birth certificate where the child was born after 1 May 2006.
Is a person involved in a case. For example, a Pursuer or Defender.
A person who conducts their case personally rather than through a solicitor.
Where you receive a share of your husband or wife’s pension upon divorce.
This is the term used in Scotland to refer to money paid by one spouse to their former husband or wife upon divorce.
This is the main document in divorce proceedings in the Court of Session. It contains factual details, such as the parties’ full names and addresses, the date and place of marriage and brief details of why the marriage broke down. The document also contains a request for the court to dissolve the marriage, and may also contain claims for maintenance, pension-sharing orders and orders concerning other assets of the marriage such as the house.
The party who applies to the court for orders in some types of cases (e.g. Adoption) is known as “The Petitioner”.
Short statements at the end of your Initial Writ, Summons or Defences explaining the legal basis for the orders sought.
Power of Arrest
Empowers the police to arrest a person without an arrest warrant, usually where a person has threatened or committed a violent act. After violent act or where a power of arrest is attached to an interdict preventing a person from acting in a certain way such as harassing another.
A previously decided case which is used to help decide further similar cases.
Documents you lodge in court in support of your case.
Is like a criminal “trial” at which evidence is led in front of a Sheriff. At the end of the hearing the Sheriff will make a decision.
Protection From Abuse
Is a generalised term to encompass the laws to do with protection of spouses and partners from violence, and may entitle an applicant “party” to ask the court for measures to restrain or prohibit behaviour complained of.
Is a person who commences court action against someone else (the Defender).
Is what each parent (and any other “significant adults”) hope to achieve with “children”
Quoad ultra denied
This is Latin shorthand that is used in written pleadings. It literally means that all the rest (of the opponent’s averments) are denied.
Is a divorce under what is called “the simplified procedure” – that is available where the grounds for the divorce are not disputed, where there are no children under the age of 16, and where there are no financial issues under dispute
Is “encouraged” (by agents, properly acting), and should not be discarded at any stage
A summary of both/all sides of the story made into a single document for the court
Means “the date of separation” – sometimes this is obvious, sometimes not
A person (usually a family lawyer or social worker) appointed by the court to investigate the circumstances around the child and to report on his/her care.
Is the new term for what used to be referred to as “custody”.
Is money/property that either party may have and which may have an effect on the division of the matrimonial property.
This is when parties cease to live together as husband and wife or civil partners. This can occur when one party leaves the marital home. However, a husband and wife or civil partners who are living completely separate lives under the same roof will also be considered to have separated.
Is the place where you would normally raise court proceedings. Sometimes there is a choice of court but it is usually the court area in which either the husband or wife lives. In cases to do with children only (i.e. not divorce/separation), it will have to do with where the children live.
Are “officers of the court” whom your solicitor will get to do things like serve court papers of the Defender.
Is the same as a “quickie divorce”. A divorce under the simplified procedure is available where the grounds for the divorce are not disputed, where there are no children under the age of 16, and where there are no financial issues outstanding.
Is the term used for putting a court case on hold. It means the court case is not settled or disposed of and it can be revived if either side asks for it to be revived.
Specific Issue Order
Is an order under the Children (Scotland) Act 1995. It will deal with a specific issue in relation to a child, for example, the right to take a child on holiday outwith the UK or to move them to a different place.
Is a husband or wife.
The term used to describe a mortgage over a property.
This is the document which initiates most Court of Session actions.
Refers to a party who is not directly involved in the proceedings but who may be asked to be a witness in certain circumstances.
Where an action is raised by a party and the opponent does not submit defences within the required timescale the action becomes “undefended”. The applicant still requires to prove their case to the court either by oral or documentary evidence.
Consists of actings or non-actings, usually “voluntary” actings which make up the basis for deciding whether a person has grounds for a divorce.
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Is an order of the court, for example, to send documents to party so that they have the chance to be heard at court.
May have to vouch for if not “typical UK wedding” – e.g. “holiday marriages abroad etc” – specialised legal advice to be sought
This principle is applied by the Court when dealing with cases involving children. In applying the principle the court ascertains what is in the child’s best interests using a non interventionist approach where possible. The court has a duty to ascertain and take account of the child’s views where appropriate depending on the child’s age, maturity and understanding of their circumstances.
Is a person who may be asked to go to court to give evidence in a case. They may be an ordinary witness or an expert.
The shortened term for an “Initial Writ”. It is the document which commences divorce action or child-related actions in the Sheriff court.
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