Misconceptions about Scottish Family Law

At Innes Johnston, we regularly advise clients on matters relating to family law and with that, we have noticed a number of recurring misconceptions.  Our Family Law team takes pride in providing clear, expert advice tailored to your individual circumstances.

In this blog, we address three common misconceptions our Family Law team regularly hears: –

Inheritance forms part of matrimonial property

It is often thought that when one spouse inherits money or property during the marriage, the inheritance belongs to both spouses and should be divided equally if the parties separate. The general rule in Scots law is that money inherited or gifted from a third party before or during the marriage does not form part of the matrimonial property. However, it is important to note that the money inherited or gifted can become matrimonial property. For example, if one spouse receives an inheritance from their parent and uses this to buy a house for the family to live in.

Grandparents have “automatic rights” to have contact with their grandchildren

In Scotland, grandparents do not automatically have rights or responsibilities in relation to their grandchildren. Courts are required to consider “the child’s important relationships with other people” whenever they make decisions with regard to that child. This means that should grandparents wish to have contact with their grandchildren, they can make an application to the court for a contact order and the court will consider the application and make a decision based on what is in the children’s best interest. If they believe their grandchildren should live with them, they can also apply to the court for a residence order.

Adultery affects the financial outcome of a divorce

Another common misconception is that if a spouse has committed adultery, which has caused the breakdown of the marriage, the other spouse will receive a greater share of the matrimonial property to take account of this. This is not the case. Blame for the breakup of the marriage is not a factor considered by the courts in deciding how to divide matrimonial property fairly.

The only time a court will consider a spouse’s behaviour in making a decision regarding the division of matrimonial assets and liabilities, is when the behaviour can be shown to have impacted adversely on the couple’s finances. For example, one spouse uses their savings to fund a gambling addiction.

How we can help?

It is always best to seek legal advice about your own specific circumstances which will prevent you from proceeding based on a misconception of the law.
If you require any advice in relation to Family Law, please contact one of our offices located in Kirkcaldy, Glenrothes, and Leven and ask to arrange an appointment to meet with someone in our Family Law team.


Author  |  Shannon Wright-Davies