Kate Bradbury

Built to last… and that it was. 2025 marks the 40th anniversary of the Family Law (Scotland) Act 1985. To this day, it remains the legislative bible for Scottish family law practitioners advising clients on separation and divorce. Indeed, lawyers from outside Scotland are often impressed by the succinct, clear guidance it provides in comparison to its more ambiguous and less helpful counterparts in other jurisdictions.

Going through a separation is repeatedly listed as one of the most stressful life events. That can be eased by having a key piece of legislation which outlines a clear process to be followed and enables solicitors to tender direct advice, giving clients certainty and stability in a difficult and emotional time.

The 1985 Act significantly altered how financial matters are addressed following separation of a married couple or a couple in a civil partnership and focuses on the fair sharing of matrimonial property. Generally, ‘fair’ means equal, but there are particular arguments a party can advance to deviate slightly from an equal division.

One fundamental element of the 1985 Act is the encouragement for parties to achieve a ‘clean break’ on divorce. This preference, as opposed to continuing post-divorce maintenance, is of benefit to individuals as they can be reassured of the certainty of finality. For individuals post-separation, being able to close the door on a chapter of life and move on is often a key objective.

It is not only the 1985 Act which celebrates a milestone this year. The Children (Scotland) Act 1995 has now been in force for 30 years. It sets out the responsibilities and rights parents have to, and over, their children and explains what court orders parents can seek in respect of their children. These include an order to deprive a parent of their parental responsibilities and rights (PRRs), orders to impose PRRs on an individual and orders regulating the residence and contact arrangements for a child. More specific orders can also be sought where the court requires to assist in disputes relating to matters such as where a child is to go to school, whether a child should receive medical treatment or the name by which a child is to be known.

The 1995 Act makes it clear that the welfare of the child is to be the paramount consideration when making any decision about a child. It is not what is best for the parents, the grandparents or any other caregiver, but what is in the best interests of the child that is the determining factor. Separating couples must be encouraged to put the children in the centre of their decision-making. Doing so can help parents focus and improve upon their own co-parenting relationship.

Anniversaries are a time for reflection – to think back on what has gone well, what could be improved and what might we have changed? It would be fair to say that both Acts have stood the test of time and, with the recent changes brought about by the Children (Scotland) Act 2020, will be suitably placed to continue providing for those who need them, whilst addressing the complexities and nuances of family life in this decade and those to come.

Kate Bradbury is an associate at Brodies LLP. This article first appeared in The Scotsman.