Financial provision for children born of non martial relationships in Scotland

Posted On: 17 March 2009

Author: Kirsty Malcolm

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The child of unmarried parents in Scotland is no better or worse off than the child of parents who are married when it comes to considering the options available for financial provision.  The reality is that in Scotland very little has been done legislatively to provide for financial provision for children, either of a marriage or non marital relationship, beyond a basic right to be maintained.  At common law children have limited rights to make claims on the estate of a deceased parent, but beyond that there is no mechanism for a child or the parent of a child to seek specific financial provision for the benefit of the child.

The right to be maintained
The Family Law (Scotland) Act 1985 section 1 established the categories of person who have an obligation to aliment another person.  Among others this section imposes an obligation on the mother or father to aliment his or her child; and on a person to aliment a child where they have accepted that child as a child of the family.  There is no qualification of marriage.  The obligation arises out of being the biological or adoptive parent, or where as a matter of fact the person has assumed the role of parent.  In relation to civil partners no specific changes to the 1985 Act were introduced.  To establish a claim against a civil partner as a parent one would rely on the obligation to aliment that a person accepting a child as a child of the family would have.

A "child" is defined as a person under the age of 18; or over 18 but under 25 years of age, and who is reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation.

The people with a title to claim aliment are:
• A person (including a child) to whom the obligation of aliment is owed.
• The parent or guardian of the child where the child is under 18
• A person with whom the child lives or who is seeking a residence order in respect of the child, where the child is under 18.

In section 3 of the 1985 Act the orders that can be obtained through the courts are set out.  They include orders (1) for making periodical payments, for definite or indefinite periods, or until the happening of a specified event and (2) orders against a party to meet specific expenses such as inlying expenses (costs associated with having the child) or educational expenses.

(Continued.  To read full article please click on link at the top of the page.  This article was published in International Family Law [2008] Dec, 244)