Under consideration PE1965: Limit estranged couples’ claim on an estate after 7 years of non-medical separation

Calling on the Scottish Parliament to urge the Scottish Government to limit married, informally separated, non-cohabiting couples’ claim of prior right over descendants of the deceased after 7 years of separation.

Previous action taken

I have contacted Keith Brown MSP’s office, but no reply was given. I also spoke with a family lawyer and was advised to petition the Scottish Government to address failings in the legal system.

Background information

Currently a married couple can separate and have other families after a relationship has ended. Decades later if no formal divorce has occurred the surviving spouse and their families have more claim of prior rights to the deceased's estate than any biological or legally adopted survivors of the deceased. If the surviving spouse dies before the estate has been settled the unrelated family have more rights than biological or adopted children.

To amend this imbalance, I would remove the right of prior claim after 7 years of non-cohabiting separation for still legally married couples bringing it in line with current law regarding no fault divorces.

People are often unaware of the legal imbalance that occurs within the law. This proposed change will not include those separated for medical needs but would affect couples who separate with the deliberate intention of living separately, informally and practically, ceasing the relationship in every way except legally.

  • Created by Mark MacLeod
  • Considered from 7 September 2022

This petition is now under consideration by the Citizen Participation and Public Petitions Committee

Find out about the Citizen Participation and Public Petitions Committee’s discussion of this petition

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