Debunking family law myths – a trainee’s view

They say you don’t really start learning to drive until you’ve passed your test. Like many experiences, it’s not until you’re actually doing the job can you start to debunk the myths and misconceptions.

During my first six months as a trainee solicitor in Harper Macleod’s Family Law team, I have found myself unravelling those common family law myths which have, one way or another, become embedded in our subconscious. Often, the portrayal of divorce and separation on television and in the media skews our perceptions. Soap operas, legal dramas and tabloid scandals all paint a picture of the family breakdown which simultaneously entertains and misinforms. It is important to debunk some of these myths and shed some light on the reality of the family law proceedings our solicitors deal with day-to-day. Below are five common family law myths I have encountered in my traineeship so far:

1. The common law marriage

In Scotland, there is no such thing as a ‘common law marriage’. Regardless of how long you have been in a relationship or whether there are children of the relationship, you will not become party to what is known as a ‘common law marriage’ and have the same legal rights as a married couple.

Despite the absence of the common law marriage in Scotland, a recent Scottish Law Commission Report demonstrated that a significant amount of people believe in its existence. This confusion stems from a previous type of ‘irregular marriage’ known as ‘marriage by cohabitation with habit and repute’, which could apply to couples who had lived together and were treated as though married. However, this was rarely used in practice and was subsequently abolished by the Family Law (Scotland) Act 2006.

Rather, in Scotland unmarried couples who live together are known as ‘cohabitants’, and there is legislation in place to protect the rights of cohabitants contained within the Family Law (Scotland) Act 2006. For more information on your rights as a cohabitant please visit our dedicated cohabitation page.

2. The courts prefer children to stay with their mum. Dads are at a disadvantage in the court process

In short, this is false. There is no judicial preference for children to automatically reside with their mothers upon separation. And yet, there exists a very common myth that ‘the woman automatically gets custody of the kids’.

In reality, the courts are guided by what is termed ‘the status quo’, which refers to the current or existing arrangements in place for the child. Change can be disruptive for children. Given our legislation provides that the child’s welfare is always the paramount consideration, the court must be satisfied that it is in the child’s best interests to justify disrupting the status quo. Therefore, if a child’s primary residence is with their mother and a court decides this should continue, it is simply the case that it is in the child’s best interests to maintain the status quo rather than a preference for children to be with their mothers.

3. Pre-nuptial agreements are a sign of distrust

Often viewed as unromantic and treated with scepticism, pre-nuptial agreements are simply an exercise in good financial planning. It is natural to want to protect assets which are important to you, even from a soon-to-be spouse.

A common myth is that if you wish to enter a pre-nuptial agreement, you don’t trust your partner. Some form the view that if you are planning for separation, you should not be marrying your partner. However, it is common practice to draw up Wills when normally we do not anticipate our imminent death. We purchase holiday insurance despite the fact we do not anticipate becoming involved in an accident when overseas. Therefore, it stands to reason that we should protect our assets prior to entering marriage – even when we do not anticipate separation.

Rather than viewing a pre-nuptial agreement as a sign of distrust, try and view it as a sign of transparency, as both parties will be required to disclose their assets prior to signing a pre-nuptial agreement. The ability to have an open and honest conversation with your partner about financial matters is a sign of strength in your relationship – not weakness.

4. If one spouse is at fault for the breakdown of the marriage, the court will take this into account when determining financial settlement

A common misconception is that if one party is seen as being at fault for the breakdown of the marriage (the most common example being adultery), the other spouse will be ‘compensated’ for this upon divorce. This is false.

Although in Scotland we do have fault-based grounds for divorce, this doesn’t actually come into play when determining how matrimonial assets are split upon divorce unless it can be proved that the conduct has adversely affected resources/the matrimonial property in some way. The presumption remains that matrimonial assets are split equally, which usually means 50/50 unless either party can show there is justification for a departure from equal sharing. For example, one justification may be, based on some form of economic advantage being derived by one spouse which is to the economic disadvantage of the other spouse – the typical example being where one spouse has given up employment to look after children of the relationship and the other spouse continues to work.

5. The “custody battle”

How often do we read tabloid scandals detailing a celebrity couple’s ‘bitter custody battle’ or watch dramatic portrayals on TV which show a character ‘going for full custody’? As a result, there is an assumption that where there are children of the relationship, separation guarantees a dramatic custody battle will play out in court. This is very rarely the case.

A lot of misunderstanding stems simply from the terminology we use. Whilst on TV shows and in the news we hear of ‘custody’ and ‘access’, in Scotland we have what is known as ‘residence’ and ‘contact’. Therefore, we don’t speak in terms of one parent having ‘full custody’. Instead, what usually happens is one parent exercises residence, and the other non-resident parent exercises contact. The focus is therefore shifted to the childcare arrangements which are in the child’s best interests, rather than fixating on who ‘gets’ the child.