22 Oct 2025
By Sally Nash, Partner, Family Law, Gilson Gray LLP
Whilst we always say that one of the joys of family law is that no two days are ever the same; there are certain common myths and legends which need debunking.
1. “Common Law Husband and Wife”
It is still a widely held belief that the concept of common law husband and wife exists in Scotland and therefore that cohabitants (particularly those who have been together for a long time) are “common law spouses” and will have the same rights as a couple who have gone through a marriage or civil partnership ceremony. This is incorrect – if you have not gone through a valid marriage or civil partnership ceremony, you are a cohabitant, and your rights (both on death and on separation) are very different to those of spouses and civil partners.
2. Cohabitants Have No Rights
The other side of the same coin is the belief that there are no legal consequences for entering into a cohabiting relationship if the parties are not married or in a civil partnership.
The Family Law (Scotland) Act 2006 (which came into force on 4th May 2006) introduced the right for a cohabitant to make a claim for financial provision on separation; and to make a claim on for financial provision on death albeit only if the deceased died without a Will.
Since the coming into force of the Family Law (Scotland) Act 2006 a cohabiting relationship can have legal consequences (albeit not the same as marriage!) and advice should be taken before such a relationship is entered into.
3. “Custody” and “Access”
Many parents who come to us following a separation still believe that what requires to be resolved in relation to the care arrangements for any children is a question of who will have “custody” of the children; and what “access” the other parent will have. The concepts of custody and access in Scots Law in fact became defunct thirty years ago by virtue of the Children (Scotland) Act 1995.
The historic concept of custody had much wider meaning than who the children would live with. For example, the parent with custody of a child would also have decision making power in respect of certain decisions in relation to that child.
The position now is that provided parents are married; or a father is named on the Birth Certificate, both parents have equal parental rights and responsibilities and therefore each is, in theory, as entitled as the other to make, and be consulted about, decisions about their child’s life.
The legal concepts we now deal with are residence and contact; with residence denoting with whom the child primarily lives and contact being the time that the other parent spends with that child (although shared care arrangements are on the rise). However a child’s time is spent does not impact the right of a parent to have a say regarding important matters in a child’s day to day life.
4. Being the principal carer means that a child will go wherever that parent does
Tied to the above is the misconception that if a child mainly lives with one parent; then that parent can take the child on holiday, or even to live somewhere different, if they wanted to. This is not correct.
Firstly, a child cannot be removed from the United Kingdom, even for a holiday, without the consent of the other parent. Strictly speaking doing so would be child abduction!
The fact that a child principally lives with one parent also does not also mean that that parent has carte blanche over matters such as where the child will go to school; and where they will live. Even a move within the UK is problematic. If both parents are regularly spending time with a child and there is a proposal to move that child even 30 miles down the road that can have a significant impact on the quantity and quality of time that the non-resident parent is exercising. If such a move is proposed, the non-resident parent can object and the parent that wishes to move will require to satisfy the Court that it is in the best interests of the child to do so.
5. That A Child’s Time Will Be Divided 50/50
Many parents come to us believing that, upon separation, the care of a child will automatically be shared 50/50. This is not the case. A child is a child; not an asset to be divided in 2!
If parents cannot agree on what care arrangements are in the best interests of a child it requires to be determined by a Court. A Court will do so considering what is in the best interests of the child having regard to the arrangements proposed. In some cases it may be that an equal split of the child’s time is both workable and in their best interests. In other cases it may not be – an equal split of time is not something that is guaranteed; or necessarily right to push for.
6. Prenuptial Agreements Are Not Enforceable
Our legislation specifically provides that Agreements as to financial provision on divorce (which would include a Prenup) will be enforceable unless they are deemed by a court to be unfair and unreasonable at the time they were entered into.
Whilst some regard will be had to the outcome of which the Agreement produces; the focus will be principally upon the circumstances in which the Agreement was entered into and, in particular, whether each party had plenty of time to consider the Agreement before the wedding; and an opportunity to take independent legal advice. Where independent advice was received (or even refused) any argument that an agreement of any nature, including a Prenuptial Agreement, should be set aside is an uphill struggle to say the least.
7. The Other Spouse Won’t Get To Share In Premarital/Inherited/Third Party Gifts
The definition of matrimonial property means that, at first blush, any assets received prior to the marriage or gifted from third parties or inherited during the course of the marriage are not “in the pot” for division.
However, i) assets acquired prior to the marriage for use as a family home or furnishings will be matrimonial property; and ii) the special protection offered to pre-marital/inheritance/third party gifts only remains for so long as the asset remains in the same form. A change in form (which can sometimes occur in unexpected ways) can convert non-matrimonial to matrimonial property.
8. It’s Just 50/50 Division Anyway
Whilst it is correct that once the matrimonial property has been identified the default position is that the property will be divided equally; the position is, in fact, much more complicated and there are a plethora of reasons which may justify a departure from 50/50.
9. No Fault Divorce
Whilst the process for divorce in England and Wales has changed so that a “no fault divorce” is possible; to date Scotland has not followed suit. If parties have been separated for a year and the other party consents to Decree of Divorce being granted; or if the parties have been separated for two years, then divorce proceedings can be raised on that basis and, by its nature, comes with “no fault”. However, if the relevant time periods haven’t been reached; divorce proceedings would require to be raised either on the basis of adultery or unreasonable behaviour.
10. Behaviour impacts outcome
Many clients believe that if the marriage has broken down because of bad behaviour (and in some cases extremely bad behaviour) on the part of their spouse; this will improve the financial provision they receive. In reality, behaviour is only likely to be relevant to financial provision if the behaviour has directed impacted the value of the matrimonial pot (examples might be prolific gambling or substance abuse).
11. We Don’t Need To Bother With Lawyers
Because there are so many myths surrounding family law (in part because concepts from other jurisdictions bleed into our culture through film and other media) there can be an assumption that lawyers are an unnecessary cost; and that the parties can do it all themselves with some googling or AI (both of which regularly produce quite horrifically incorrect results on the application of Scots family law!). In reality advice from an experienced practitioner is invaluable.
Even if couples are able to resolve matters between them; it is absolutely critical for what has been agreed to be reflected in a binding contract. Without a contract that says not only what is to happen; but also what that means in the wider context of the division of the assets then parties could implement what had been verbally agreed; and then find the other party coming back looking for more.
Scot family law is complex. If you and your partner or spouse are separating it is critical to take independent advice from an expert family lawyer.
Find out more about our Family Law services here.
