The Family Law (Scotland) 1985, s. 1, provides “a person to a child ... who has been accepted by him as a child of his family,”[1] has a possible obligation to pay aliment. Prior to the 1985 Act coming into force[2], “it was necessary for there to be a marriage before there could arise any obligation ... [to pay aliment for children] ... (of one party or other party) who had been accepted as one of the family by the other party.”[3]
The fact that a defender has an obligation to pay an aliment does not mean that a claimant will be awarded an aliment from the court.
In Watson v Watson[4], Sheriff R. A. Davidson held, “...the former husband was under no obligation to aliment the child because he had never accepted the child into his family in the knowledge that he was not in fact the child's father.”[5] Likewise, it has been stated: “What constitutes acceptance? It is suggested that in addition to treating the child as one’s own child there must also be an intention, initially at least, to provide support indefinitely. ... There are also cases in which acceptance required full knowledge of facts about the child’s paternity and an agreement by both spouses that the child should be accepted.” (footnotes omitted)[6]
There does appear to be a legal base which could preclude defender from paying any aliment support to a child, but the Scottish / English courts are likely to have a low test for acceptance.
[1] Family Law (Scotland) Act 1985, s. 1(1)(d)
[2] Matrimonial Proceedings (Children) Act 1958, s. 7
[3] Forbes v Forbes (also known as 1991 S.C.L.R. 389 (Sh Ct (Grampian))
[4] Watson (Lindsay) v Watson (Parent & Child: Aliment) 1994 S.C.L.R. 1097
[5] Op. cit. Watson v Watson 1994 S.C.L.R. 1097
[6] D I Nichols, The Family Law (Scotland) Act 1985 (2nd edn W. Green, Edinburgh 1991) 7, para 2.16
