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family life legal airdrie, coatbridge and surrounding areas 01236 627627 cumbernauld and surrounding areas 01236 550044 motherwell, bellshill, hamilton and surrounding areas 01698 678609 separation and divorce child law wills power of attorney guardianship civil court family law issues at familylifelegal.co.uk our lawyers and solicitors can provide family law advice to clients in lanarkshire from our offices in airdrie, cumbernauld and motherwell. our law firm covers a range of areas including divorce, separation, contact and residence of children, wills, powers of attorney, guardianship and parental rights. we are also able to offer legal aid. we have clients in airdrie, motherwell, coatbridge, cumbernauld, bellshill, wishaw, hamilton, larkhall and throughout lanarkshire. we recognise that there are all sorts of family law issues that can lead to people requiring the need of expert legal assistance from a lawyer or solicitor. this can relate to issues following the breakdown of a relationship, divorce, separation, property rights, issues relating to contact with children or residence of children as well as parental rights. it is important to turn to a law firm who have experience in family law matters. our lawyers, solicitors and notaries public can advise on any of the following: divorce and the grounds for divorce, as well as the court procedures involved separation, including financial issues contact arrangements for your child or children residence of your child or children parental rights and responsibilities rights of grandparents in relation to children rights of residence in the matrimonial home matrimonial interdicts and protective measures rights of co-habiting couples equally, legal issues can arise in relation to other matters to take account of changes in circumstances within a family and to help make sure your family is protected as you would wish them to be. for example: wills – as your circumstances, and the circumstances of your family change it is important to ensure you have a will that is up to date and accurately reflects your wishes and a lawyer can guide you through the process power of attorney – a power of attorney can allow you to appoint someone to make decisions of your behalf regarding your welfare or financial matters. the power of attorney can be granted to take immediate effect or only to take affect if you become medically unfit to make decisions for yourself. guardianship orders– a guardianship order can be sought from court where the need arises to assist family members who are unable to cope and who require assistance with their day to day care. on their own or to ensure that our lawyers, solicitors and notaries public are experienced and sympathetic and will be happy to assist you with any family law query you may have. we have clients throughout scotland and have our main offices in airdrie, cumbernauld and motherwell so that we are centrally located to provide legal services throughout lanarkshire and all over scotland. we have clients in airdrie, coatbridge, wishaw, cumbernauld, motherwell, bellshill, new stevenson, glasgow and throughout scotland. our lawyers are able to offer legal aid in appropriate cases and we will be able to assess whether you are eligible for legal aid at the outset of your case. in some circumstances, our lawyers can meet you at your home to make the process easier for you. latest posts legal aid representation risk 24th september 2017 8:32 am leave a comment scotland risks a drop in the standard of legal representation for people accused of the most serious crimes unless the legal aid system is improved, the faculty of advocates has suggested. the faculty said criminal legal aid was fundamental in a democratic society and allowed the poorest and most vulnerable to be represented by highly skilled advocates. however, that representation was under threat. “the new fee structure, established in 2006, was intended to undergo triennial review, but this has not occurred to date, in the face of continuing budgetary constraints,” the faculty stated. “unless this matter is addressed with urgency, the consequence over time will be a diminution in the quality of representation generally and, potentially, the eventual disappearance of advocates as pleaders in the most serious cases. no one can take any pride in presiding over a ‘race to the bottom’…the standard of representation is high but will only remain so if the commitment to support that representation is maintained and financial arrangements are improved.” generally, the faculty said it shared the scottish government’s objective in relation to legal aid of ensuring that rights were made effective for all members of scottish society. highlighting family law, the faculty said there were problems with delays in granting legal aid, and in granting sanction for counsel and for experts. however, cases under the hague convention on child abduction were generally heard within six weeks, showing that matters could be speeded up. “we consider it is important that legal aid continues to be available for the instruction of counsel in all cases where the state seeks to ‘interfere’ in the family lives of socially vulnerable people, in order to ensure protection of one of the most basic human rights, the right to respect for family life. “we would hope that the availability of legal aid in a wide range of cases will continue, and consider that if the system of legal aid is flexible enough to respond to changes in the way the law is practised (by, for example, the front loading of family cases) to ensure that counsel (and solicitors) are adequately remunerated for the work they do, then there remains much to commend the current system of legal aid.” relationships and legal issues 28th august 2017 10:30 pm leave a comment relationships and the law earlier this year, rebecca steinfeld and charles keidan, lost their court of appeal case, in which they sought the right to be able to enter into a civil partnership, instead of a marriage. the couple reject the traditional notion of marriage and wanted a civil partnership which is currently only available for same sex couples in the uk. the couple launched legal proceedings against the uk government and claimed they were being discriminated against because of their sexual orientation. all three judges accepted that there could be a potential breach of the couples’ human rights by not being permitted to enter into a civil partnership instead of a marriage. however, the court felt that the issue was one for the government to address in terms of new legislation. it may of course be that the government ultimately decides to abolish the concept of civil partnerships, which would put both same sex and heterosexual couples on the same footing. until then, the differences between the three types of legal relationship ate as follows:- marriage married couples are entitled to a fair share of the matrimonial property which has been built up during the period of the marriage up until the date of separation. the law does not provide that the assets will be split 50/50 on divorce, although tends to be the starting point to consider division of the assets. married couples also have rights on each other’s estate upon death automatically, known as prior rights. civil partnerships civil partnerships confer upon a same sex couple virtually identical rights to that of a married couple. the only difference is that it is not legally classed as a marriage. financially, exactly the same rights are conferred and the assets and debts are divided in the same way upon dissolution of a civil partnership as they are upon divorce. cohabitation the family law (scotland) act 2006 makes it possible for a cohabitant to make a financial claim following the breakdown of their relationship. however, cohabitants have no automatic right to claim anything upon the breakdown of their relationship and they are not afforded the same level of protection as a married couple would be upon divorce. there is also a very strict timescale for making a financial claim and that must be made within one year of the date of their separation. same sex and heterosexual cohabiting couples are treated in the same way from a legal perspective. cohabitants are not automatically entitled to anything from their cohabitee’s estate on death unless provided for in a will. if they die without a will, they can make a claim on the estate but it must be made within six months of death. therefore, for any heterosexual couple it is worth thinking seriously about their future, particularly when deciding whether to perhaps continue cohabiting or enter into a marriage. if the notion of marriage is one that does not sit comfortably with a couple, then they should be aware of the cohabitation legislation and should seek specialist advice on that from the outset, to ensure that they are aware of their rights and, what they can and cannot expect to receive in the event of a future separation. way forward for obtaining views of children 13th november 2016 7:26 am leave a comment the faculty of advocates has suggested children’s views in family actions could be obtained in a way that is better suited to ensuring their views can be fairly obtained with minimal upset to the child. the scottish civil justice council (scjc) has drafted two forms to tell youngsters that an action has been raised and how it affects them, and to give them the chance to put their views to the court. the proposal is that an initial form would intimate the action and seek any comments at that stage, and a second form would be sent to the child for his or her views if notice has been given that the action is to be defended. the faculty said in a submission to the scjc that it considered the two-stage process to be positive. “however, we do consider that it may be confusing, and perhaps emotionally difficult, for children to be asked for their views twice in quick succession, as is envisaged in the draft forms. “it would be natural for a child to think that the judge wants him or her to fill in the form immediately with f9.1 and then to be puzzled or distressed by the receipt of a second form. there will be a risk that the child thinks his or her first answer was in some way unacceptable. “we would suggest that the form f9.1 is sent to the child when the action is raised to inform the child of the court action, but that it does not at that stage ask the child to state his or her views. “the form f9.2 would be sent out a week later…whether or not a notice of intention to defend had been lodged, in order that the child is given the opportunity to give their view to the court…” the faculty noted that it was intended to consult groups of children on the content of the forms, and it agreed that “this will be a valuable exercise.” named person to be assigned to every child in scotland by 2016 4th march 2016 5:49 pm leave a comment ‘ the controversial ‘named person’ provision of the children & young people (scotland) act will soon apply to every child under the age of 18, and beyond, if still in school in scotland by the end of august 2016. in 2003 the scottish government introduced the policy of getting it right for every child. its aim was to improve all government services and protective measures provided to children, making sure that every child receives the best possible start in life regardless of their background. this policy was then enshrined in the law by the children & young people (scotland) act 2014, to ensure that no child suffers or is exposed to harm by intervening at an earl stage in their life. the ‘named person’ provision, therefore, has been introduced to fulfil the state’s obligation to maintain every child’s legal right to welfare. the provision involves the local authority assigning a person, usually a head teacher or health visitor, to every child. this assigned person will then be the single point of contact for that child and their family or guardians. the intention is that the ‘named person’ will provide a more preventative approach to child protection; so that no child will fall beneath the radar of the relevant authorities. instead, if a child is in need of further assistance, the ‘named person’ will ensure that this help is provided. they then have the role of coordinating the relevant government bodies to provide this support. while the focus of the ‘named person’ is to maintain the human rights of the child, by doing so the rights of the child’s parents may be compromised. this matter led to the recent case of christian institute v lord advocate [2015] csoh 7, in which three individuals and four registered charities requested a judicial review of part four of the children & young people (scotland) act which refers to the ‘named person’. the parties’ challenge was made on the grounds that both the rights of the child and parent have been infringed under the article 8 of the echr, which places a positive obligation on the local authority. due to the nature of the ‘named person’ a guardian is assigned to every child in scotland regardless of whether the child or its parents’ has granted consent. however, lord pentland felt strongly that it was not possible to pre-empt the infringement of echr rights, instead this could only be properly assessed once the legislation was fully in force. therefore, although many children have already been assigned a ‘named person,’ by august 2016 this will apply to every child in scotland. only time will tell if this provision will achieve all that the scottish government intends. if it is to come under scrutiny again, the decision to intervene by the ‘named person’ and state will be justified if proven that the act was necessary in protecting the rights of the child. author: gabrielle reilly, llb hons, currently studying for the diploma in legal practice the views expressed are those of the author and do not necessarily reflect the views of the firm. the importance of wills 3rd march 2016 9:22 am leave a comment having a will is important because if you die without making a will there are certain rules called the rights of succession which will dictate how your money, property and possessions will be allocated which may not be the way that you would have wanted it to be distributed. for example, unless there is a will, couples who are not married or in a civil partnership do not automatically inherit from each other when one partner dies. this could leave your partner facing a serious financial problem if you usually provide for them financially. there are numerous advantages of having a will. if you have young children you can name a guardian in your will and leave instructions for how they should provide care for your children. you can also set up a trust fund if you want a sum of money to go to your child/grandchild but not before they reach a certain age or certain conditions are met. your will can specify exactly who is to get what. you can provide for your partner, even if you are not married or in a civil partnership, by leaving them some money or assets. if there is a specific item you want to leave someone in particular then you can do that in your will to ensure they get that particular item. you can even leave money to a charity. discussing funeral plans with loved ones can be distressing and may be a topic of conversation you have avoided. therefore, you can include your funeral wishes in your will and know that you will be buried or cremated accordingly without having to discuss the matter with loved ones. you can also write letters to loved ones to provide some sort of comfort after you have passed away. you could write these letters and leave them somewhere in the house in the hope that they will be found after you pass away and not before. or you could leave instruction in your will with the location of these letters. having a will can also take some stress away from loved ones as they will be able to follow the will and know that they are honouring your final wishes instead of stressing themselves out trying to guess what you would have wanted. once you have written your will you will gain some peace of mind knowing that your final wishes have been recorded. you can also take comfort in the fact that it is not absolute – if your circumstances change in the future you can always have the previous will altered or have a new will written. author: alexis craig, llb hons, dip lp the views expressed are those of the author and do not necessarily reflect the views of the firm. establishing child’s habitual residence 1st march 2016 10:30 am leave a comment both parents were british nationals and were in a same sex relationship from 2004 to 2011. in april 2008 the mother gave birth to b, using an unknown sperm donor. shortly before b’s birth the applicant and the mother bought a house in joint names and lived there with b, who had a loving relationship with both of them as her parents. in december 2011 the relationship broke down. the applicant continued to have some contact with b but the contact was reduced by the mother. on 3 february 2014, without the applicant’s knowledge, the mother took b to pakistan with the intention of living there permanently. on 13 february 2014, the applicant, still unaware that b had been taken to pakistan, issued proceedings for shared residence/contact. in may 2014 the applicant discovered that b and the mother had gone to pakistan. the judge refused the application as the court had no jurisdiction as b had lost her habitual residence in england on arrival in pakistan and b’s wish to remain in contact with the applicant not being enough for the continuation of her habitual residence in england. on appeal to the supreme court the question was whether b had by then achieved the requisite degree of disengagement from her english environment, and highly relevant to the answer would be whether she had by then achieved the requisite degree of integration in the environment of pakistan. the cumulative effect of all the circumstances relating to b’s removal to pakistan, including the fact that she had lived in england throughout her life and had never been to pakistan, that her language was english and that the applicant, who was the second most important figure in b’s life and with whom she had retained significant emotional links, had been left behind in england, led to the conclusion that b had still retained her habitual residence in england at the time when the application had been issued. therefore the application could and should proceed. hamilton ross have a dedicated team here to help with residence and contact. if you are having difficulty or just need some advice please make an appointment with one of our specialised solicitors. author: fiona stewart, llb, dip lp the views expressed are those of the author and do not necessarily reflect the views of the firm. succession (scotland) bill 29th february 2016 5:30 pm leave a comment the succession (scotland) bill is currently at stage 3 of the parliamentary process and aims to clarify certain elements of the law surrounding succession. the scottish law commission has identified previously in both 1990 and in 2009 that the law of succession is in need of change. the last major changes came in 1964 with the succession (scotland) act 1964. one of the more controversial issues that the law commission has dealt with is the removal of the distinction between heritable and moveable property which will mean that the claim for legal rights will be over the entirety of the deceased’s estate. some of the more major changes to the law are set to be far reaching for everyone involved in succession law, and that is not just lawyers. certain areas of the law such as presumption of death and trustee’s duties have left people involved in the administration of a deceased’s estate scratching their heads s the law surrounding these areas is unclear. some of the more interesting provisions of the bill can be summarised however, a short piece cannot do the proposed changes to the law, justice. ambiguity has often arisen where a testator has drafted a will but, upon reading the deceased’s will the instructions are not clear or would appear to be what the testator wished for. section 3 of the bill proposes that the court can decide to rectify the will making provision for what they believed the testator to have wished. extrinsic evidence can be led on this. the trusts (scotland) act 1921 is also to be amended in section 18 to reflect instances where the trustee makes a distribution of the trust assets, and gets the beneficiary wrong, the trustee making the decision cannot be held personally liable. the law surrounding special destinations on divorce, dissolution or annulment would be clarified under section 2 of the bill where is a person dies after one of the 3 types of mentioned marriage termination, then the spouse or civil partner of that person is treated as having died before the person who died. finally, another major change is the ascertainment of the order of death. there would be a presumption of death under sections 10 and 11 which clearly illustrate the order of death if there is uncertainty for example, in a car accident. what certainly is the conclusion of all of this is: given the substantial changes that are to be in place, people should seek advice from their solicitor in order to obtain the best instructions as to how to deal with their estate upon their death. author: blair duffy, llb, currently studying for the diploma in legal practice the views expressed are those of the author and do not necessarily reflect the views of the firm. cohabitation – don’t take things for granted 10:33 am leave a comment the office for national statistics recently published figures relating to the make-up of families across the uk. it highlighted that the number of cohabiting couple families has grown considerably in recent years. the figures from the ons show that cohabiting couple families grew by 29.7% between 2005 and 2015, to a total of 3.2 million, and that cohabiting couple families now account for 17% of all families in the uk. cohabiting couple families are defined as those with or without children where the couple are not married but live together as if they were husband and wife or civil partners. by comparison to married couple or those in a civil partnership the law offers them very limited protection should the relationship break down. currently in scotland the family law (scotland) act 2006 provides limited financial provision for cohabitants whose relationships end. section 28 of the act provides that a cohabitant can apply to the court within one year of the end of the relationship and the court may order a capital sum to be paid by one cohabitant to the other. the court will consider whether either of the cohabitants has gained or suffered economically in favour of or to the detriment of their former partner as a result of any contributions made by the other cohabitant. this can be either financial or non-financial like bringing up children. section 29 of the act enables a surviving cohabitant to make a claim on the estate of a deceased cohabitant where there is no will. an individual who moves in with their partner is unlikely to consider that a financial claim could be made by them, or against them, in the future. for cohabiting couples there is no legal obligation to pay maintenance to each other if they separate, and there is no provision for the making of a transfer of property order so the court could not have the house transferred to one party. it is presumed that each cohabitant will share equally in household goods acquired (except by gift or inheritance from a third party) during the cohabiting relationship. there is no provision or assumption of equal shares regarding the property bought for the cohabitants to live in. this means that couples if buying a property jointly have to consider how title to any property is taken, if one of the cohabitant’s is putting in more by way of a deposit it is advisable to have this set out in writing. there has been in recent years an increase in couples considering a cohabitation agreement for this reason. a cohabitation agreement can set out the financial arrangements which are to exist during the couple’s relationship, and set out what will happen in relation to finances in the event that the relationship breaks down even if that is just to provide that neither cohabitant can make a claim upon the other. couples who are entering into a cohabiting relationship may also want to consider making a will. author: hannah blaney, llb hons, currently studying for the diploma in legal practice the views expressed are those of the author and do not necessarily reflect the views of the firm. succession law changes 28th february 2016 10:23 pm leave a comment succession law in scotland is changing. on the 29th of january 2016, the scottish parliament passed the succession (scotland) bill in an attempt to modernise the law in this area, marking the beginning of important and widespread reforms. such developments have been much sought after by the legal profession, with the current law – the succession (scotland) act 1964 – being seen as relatively outdated. based on consultations by the scottish government, the changes which the new bill introduces have been designed to make the law “fairer, clearer and more consistent”. this is the first part of a two stage development which is set to take place. one of the most significant and widely anticipated changes which this bill introduces is an end to the ability to inherit from the estate of an ex-spouse. until now, divorce or dissolution of a civil partnership has not had any effect on a prior existing will. this meant that an ex-spouse would still be entitled to inherit from their former partner’s estate unless specifically removed from their will. these new changes will now revoke the rights of an ex-spouse at the end of the relationship. this also applies where the ex-spouse has been appointed as a trustee or executor under the will. in any of these events, the ex-spouse will now be treated as having pre-deceased the person who has made the will (the testator). the new bill also narrows the current law surrounding the circumstances where a beneficiary under the will pre-deceases the testator. under the new bill, where a testator has left a legacy (a gift left through the will) to a direct descendant (i.e. their child or grandchild) who then dies before receiving that legacy, it will automatically be assumed that the intention was for the legacy to be given to the children of that direct descendant. such an automatic entitlement also used to apply to nieces and nephews, however the bill will now restrict this to children and grandchildren only. another significant change comes in the form of rectification of wills. the bill introduces provision to allow the court to make changes to a will where it can be shown that the will which is in place does not reflect the true intentions of the deceased. all of these changes are expected to come into effect in march 2016, to be followed shortly after by further reforms. the second stage of the development process is expected to affect the legal rights of a spouse or child to the deceased’s estate by removing the distinction between heritable and moveable property. further changes are also expected to be made in the areas of intestacy and cohabitation. no draft bill has yet been submitted for this part, but it should be noted that further changes are expected in the near future. author: lauren davidson, llb hons, currently studying for diploma in legal practice the views stated are those of the author and do not necessarily reflect the views of the firm. family is what you make it 5:01 pm leave a comment family is what you make it what is a family? is it something the law can define? how does scot’s law adapt to this ever changing term? historically in scotland, like in many other jurisdictions, the nuclear family was the primary family unit. this simply encompassed a married man and woman and their children, and family law provisions reflected this. there began to be a change within society however which saw a rise in cohabitation, same sex relationships and single parent families to name but a few. a parent has a responsibility and right to participate in their child’s upbringing through parental rights and responsibilities (prr’s). mothers, despite their marital status, hold automatic prr’s to their children. registered fathers, since 4th may 2006 and the introduction of the family law (scotland) act 2006, also hold automatic prr’s. this was often described as marking the end of a long struggle for non-married fathers to gain equality in relation to their children. fathers, however, still do not obtain automatic prr’s on the basis of paternity. where a father is not registered as such he will continue to be deprived of prr’s and the child in turn will be deprived of a second guardian. given the rise of divorce and single parent families in modern scotland, this issue of equality of parental rights may be far from over despite the changes in the law to date. significantly, prior to the 2006 act, scots law recognised that there had been a change in those who were occupying the roles of “mother” and “father”. for example grandparents or step-parents were undertaking these roles without legal recognition. although legislation makes provisions for someone who has never had prr’s to claim an interest, it is questionable whether this legislation goes far enough, evidenced by the numerous cases on this topic such as d v h 2004 fam lr 41 and e v e 2004 fam lr 115. there may be a need for step-parents, grandparents and even siblings to have a stronger legal authority in the upbringing and care of a child’s day-to-day life. thus further eroding the primitive nuclear definition of family. in the last 25 years scots law has been significantly reformed in order to respond to these changes in families and provide diverse forms of family relationships with legal protection. a more recent reform is the enactment of the marriage and civil partnership (scotland) act 2014, providing for same-sex marriage in scot’s law. by recognising the right of a same sex couple to marry, the definition of marriage changed to be in line with the 21st century family in scottish society. conversely, in a recent case of steinfield and anor v secretary of state for education [2016] ewhc 128 (admin) an opposite sex couple were denied the right to enter into a civil partnership. given the decline in numbers marrying in today’s society it is not inconceivable that we will come to see all couples being able to enter civil partnerships, once again changing the family unit in scot’s law. author: jadiene morison, llb, currently studying for diploma in legal practice the views expressed are those of the author and do not necessarily reflect the views of the firm. -- submit an enquiry name: email: telephone: enquiry: submit call: 01236 627627 - or - 01236 550 044 - or - 01698 678609 we are able to serve clients in the following areas: airdrie cumbernauld motherwell coatbridge motherwell bellshill cumbernauld hamilton glasgow uddingston bothwell wishaw other areas also covered checkout our latest blog: legal aid representation risk scotland risks a drop in the standard of legal representation for people accused of the most serious crimes unless the legal aid system is improved, the faculty of advocates has suggested. the faculty said criminal legal aid was fundamental in a democratic society and allowed the poorest and most vulnerable to be represented by highly […] read more → view all → about familylifelegal.co.uk hamilton ross solicitors 18 anderson street, airdrie, ml6 0aa the muirfield centre, south muirhead road, cumbernauld, g67 1aa 148 merry street, motherwell, ml1 1na related links legal aid airdrielawyers.co.uk coatbridgelawyers.co.uk cumbernauldlawyers.co.uk eastkilbridelawyers.co.uk/ hamiltonlawyers.co.uk motherwelllawyers.co.uk northlanarkshirelawyers.co.uk social media hamilton ross solicitors @airdriesols family life legal hamiltonrosssolicitors more legal aid find us about us terms & conditions window.jquery || document.write(' ')

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