How to cope with divorce and separation

Is your separation recent? If it is, you will need some time to come to terms with the emotional consequences - anger, sadness, confusion. Hurried decisions can be unwise. But if you are at risk they may need to be made.

Grounds for divorce

Proceedings for divorce can be raised in the Court for the area in which you are habitually resident.  Jurisdiction is something that can be explored in more detail.  There are four grounds for divorce as follows:

  • Unreasonable behaviour
  • Adultery during the period of the marriage
  • Non-cohabitation for over 12 months and your spouse consents to divorce
  • Non-cohabitation for a period in excess of 24 months, irrespective of consent

Financial Aspects

In Scotland, the financial aspects of separation must be resolved prior to Decree of Divorce being granted. If they are not, any claims you might have had by virtue of your subsisting marriage are lost. The way in which financial aspects are decided is set out in the Family Law (Scotland) Act 1985.

The Family Law (Scotland) Act 1985 can be accessed by computer on UK Statute Law Database and, in particular, Sections 9 to 11 set out the way in which the Court will determine division of matrimonial property. The Court may grant orders as part of divorce proceedings to achieve an appropriate and fair division of the matrimonial property.

The Court could grant the following orders:

  • Orders for transfer or sale of heritable property
  • Orders sharing pensions or “earmarking” pension lump sums
  • An order for payment of a capital sum, either by way of a one off payment or deferred or by instalments.
  • Orders for payment of periodical allowance – payment to provide support in circumstances where such financial support is justified following divorce. There are fewer of these awards made nowadays and the amount and duration of any such payments is usually time limited.

Minute of Agreement

Divorce proceedings are not the only way you can resolve the outstanding financial issues arising out of your separation.  Many people leave divorce until later and instead focus on a negotiated settlement which can be recorded and reflected in a Minute of Agreement, also known as a Separation Agreement.  The agreed arrangement in respect of children can also be recorded in a Minute of Agreement. 

These agreements usually contain a clause discharging rights of inheritance from each other and also rights to make financial claims in a later divorce case.  Even if you are able to agree on matters with your spouse, it is very important that what is agreed is recorded in a Minute of Agreement.  It is very difficult to prove that a verbal agreement is binding in the event that there is a dispute about that in the future. 

What is Matrimonial Property?

If proceedings for divorce were raised, the Court would look to divide the “Matrimonial Property”.  If we are negotiating towards a Minute of Agreement on your behalf then what we would also focus on is the “Matrimonial Property”. 

The starting point is that the matrimonial property should be divided fairly, that is, equally between both you and your spouse.  Matrimonial property consists of all assets acquired individually or jointly from the date upon which you were married until the date you separate (“the relevant date”). 

There are exceptions to this, including houses bought before marriage which are usually not “Matrimonial Property” unless they are to be used as a family home, they then become "Matrimonial Property"; pensions and policies which started before marriage the values of which are apportioned relate to the period from marriage to relevant date. Gifts and inheritances from others do not form part of the matrimonial property in most situations.

Matrimonial debts are also taken into account in any negotiations.  Matrimonial debts are debts incurred either individually or jointly from the date of marriage until the date of separation. 

A schedule of assets and debts and their values at the relevant date is usually negotiated and agreed.  This is with a view to ascertaining what arrangements need to be made in order to achieve a fair sharing.  There are arguments that can be advanced to justify a departure from the equal sharing principle.  Whether such arguments apply in your case will depend on all the circumstances and will be fully considered and explored with you.

What about the arrangements for your children?

This can be the most difficult matter, from an emotional point of view, to negotiate and resolve.  If the Court requires to make an order about the arrangements for your children, the Court’s focus will be on what it is best for the welfare of your children.  Courts are keen, wherever possible, that parents agree the arrangements for their children.  The Court requires to be satisfied that it is better for the children that an order be made than no order be made.  Also, the Court will, if appropriate, give children an opportunity to express their views about the arrangements for their care and upbringing. 

Another way of attempting to resolve matters is by negotiation, sometimes with assistance from a mediator.  Mediation is often recommended to improve communication about these things.  Court can refer parents to mediation, but it is also possible to self-refer and seek assistance from a mediator.

What about child maintenance?

An assessment for child maintenance can be made by the Child Maintenance Service and not by the Court, although the Court can still make orders about payment of school fees.  The Child Maintenance Service have telephone advice services and also an online maintenance calculator.  The online maintenance calculator can be accessed via the following link, Child Maintenance Calculator.  The arrangements for payment of maintenance can be recorded in a Minute of Agreement.  If you have concerns about reliability of payment, it is probably best to include such provisions in any Minute of Agreement.

What about cost?

Matrimonial work varies a great deal with the individual circumstances and outlooks. It is usually charged for on a time and line basis in detail based on what is actually done.  We will issue regular interim fee-notes so you are informed about the costs and can pay as your case progresses.

Cohabitants

The Family Law (Scotland) Act 2006 which came into force on 4 May 2006 allows cohabitants, that is:

  • a man and a woman living together as if they were husband and wife, or
  • two persons of the same sex living together as if they were civil partners, to make certain claims following on cessation in the cohabitation or on the death of one of the cohabitants

The claim on death can only be made where the cohabitant has died without a will.  Claims where the cohabitant is surviving are possible under two different bases.  Firstly, in respect of any economic advantage or disadvantage that has been sustained during the period of the cohabitation; and secondly, in order to take into account the economic burden of child care post cessation and cohabitation.  The considerations are different depending on whether the claim is made where both parties are alive after ceasing to cohabit or where cessation is by death of one of the parties.

If you are already cohabiting, or thinking of buying a home or moving in with a partner then thought should be given to whether you want to enter into a Cohabitation Agreement, which is also known as a Minute of Agreement.  This Agreement can regulate what should happen about those rights in the event of separation.  This will allow you to focus on the present, rather than what would happen in the future should there be a change in your relationship.

Claims under s 28 will take into account the length of the period together,  the nature of the relationship and of any financial arrangements, if appropriate, where cohabitation has ceased after 4 May 2006.

Claims, where the other cohabitant is alive, must be made within twelve months if cohabitation ceases and claims arising where the other cohabitant has died should be made within six months from the date of death.

Claims against living cohabitants may relate to rights in household goods or money and property or may be for a capital sum taking account of the economic burden of caring for a child of which the cohabitants are the parents or allowing for economic advantage or disadvantage.

Claims following the death of a cohabitant can arise where the deceased did not make a Will, was domiciled in Scotland and was cohabiting with a partner at the time of death and may be for a capital sum or a transfer of property, taking account of the size and nature of the deceased's net intestate estate, any benefit to be received by the survivor and any other matter the Court considers appropriate but there is an upper limit and the award should not exceed what might have been paid to the survivor between spouses or a civil partner.

Civil partners can pursue actions for dissolution of the civil partnership under Section 117 of Civil Partnership Act 2004 in similar circumstances to those used by divorcing spouses.

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