The following is a useful glossary of family law related terms used in Scotland:
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 a Minute of Agreement or 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 sough 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 are usually referred to the Children’s Panel by the Children’s Reporter because there are concerns about the child’s care at home. The Children’s Panel 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.
CMS – Child Maintenance Service
The Child Maintenance Service has replaced the Child Support Agency (CSA). The Child Maintenance Service have authority to decide who pays money and how much for children up to the age of nineteen. In the event an amicable agreement cannot be reached between parents on the level of child aliment to be paid the Child Maintenance Service has exclusive jurisdiction to assess the appropriate level of maintenance.
Cohabitants are 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 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 was abolished under the Family Law (Scotland) Act 2006. However, for any couples who were living together as husband and wife before May 2006 (and everyone thought that they were married) it is still possible to raise an action of declarator of marriage and divorce in the event of their separation. Declarator of marriage is effectively the court stating that they have been in a “common law marriage”.
Compulsory Supervision Order
An order granted by the Children’s Panel in respect of children for whom the Social Work Department have concerns.
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 individual pieces 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 Court and sits in Edinburgh. The Court of Session hears Appeals in respect of decisions from the Sheriff 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 to be granted by the Court such as divorce or a Court order as to where a child lives.
Child Support Agency, who have the authority to decide who pays money and how much for children up to age 19 in specially defined circumstances and the CSA can get court orders (called “liability orders”), and other orders to enforce payment by those responsible to pay for “children”
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.