Divorce can be a harrowing, confusing and expensive process. At Mitchells Roberton, our aim is to help find the most appropriate and least stressful solution for you and your family. We can advise you on separation rights and agreements, divorce litigation, residence and contact disputes, emergency protection if needed and all financial issues arising from divorce. We are also able to guide you on pre-nuptial contracts, cohabitation agreements, and civil partnerships. Whatever your situation, we can offer you sensitive, cost-effective advice.
What is a separation agreement and why is it preferable to just raising a divorce action?
Relationship breakdown is a distressing and painful experience, having a huge impact on both your life and that of your family. Issues such as residence disputes, parents’ contact with children, and the impact on the parties’ financial affairs arise and you will understandably want to know the financial and practical consequences of any decisions you are considering making. At this time, emotions may be running high and it can be hard to keep hurt and anger out of negotiations. Our experience is that negotiation is generally the best way forward. We can assist you by entering into discussions with your partner’s solicitor with the intention of reaching an agreement covering all your concerns, rather that launching immediately into litigation. A separation agreement that covers all the relevant matters can make the transition following the breakdown of a relationship smoother, easier and less expensive. Our family law team at Mitchells Roberton are experienced, sympathetic and practical solicitors who can bring objectivity, guidance and support to you throughout your separation, avoiding unnecessary heartache and dispute.
What if we can’t agree?
Where an agreement cannot be reached in relation to any of the aspects of your separation, litigation may be inevitable. Where this is the case, we can represent you in a court action, and help you through this troublesome time. This could include raising divorce proceedings, or proceedings relating to the care and upbringing of children.
What are the grounds of Divorce or Dissolution of a Civil Partnership?
Before a Divorce or Dissolution can be granted it has to be shown to the Courts that you and your partner are no longer able to sustain a relationship on a permanent basis and that the marriage or partnership has broken down irretrievably. There are four main instances that demonstrate an irretrievable breakdown of marriage:
- Where you have not been living as a married couple or as civil partners for at least one year, you both agree that there is no prospect of reconciliation then you can apply for a Divorce or Dissolution;
- Where you and your partner have been living apart for at least two years, you can apply for a Divorce or Dissolution without your partner’s consent;
- Where there is evidence of adultery, this is usually sufficient grounds for Divorce;
- Where there is evidence of your partner’s unreasonable behaviour. The Courts apply a broad definition as to what constitutes unreasonable behaviour.
There is no minimum time requirement for a couple to have been separated before applying to a Court for Divorce on the basis of adultery or for Divorce or Dissolution on the grounds of unreasonable behaviour.
However, before a Court will consider granting a Divorce or Dissolution, notwithstanding that it has evidence of the irretrievable break-down of your relationship, it will need to know that all other important matters have been addressed, such as the care and welfare of any children involved and any outstanding financial issues. If you have been unable to come to an agreement on any of these matters, the court will make a decision for you as part of the divorce action and this decision is then legally binding on both parties.
What happens to the children?
This is one of the most important issues arising from a separation and it is sometimes very difficult to find an agreement acceptable to both parties. Courts are generally reluctant to get involved in decisions about how children are to be taken care of, but they will intervene if parents cannot agree. The Court’s decision will be made to protect the best interests of the child and that decision is then legally binding on both parties.
In terms of maintenance for children (known as ‘aliment’), both parents are obliged to financially support their children until the age of 18 (or 25 if they are in full time education). This is dealt with either by way of agreement or through the Child Maintenance Service (the successor of the Child Support Agency) and the Courts generally do not get involved.
What happens to the assets and/or debts of the relationship?
Matrimonial property is generally all assets accrued by the parties, either individually or jointly, between the date of the marriage and the agreed date of separation, less any debts accrued during this period. This does not include any property acquired by way of gift or inheritance during the marriage. Underpinning Scottish Divorce Law is the premise that the net value of the matrimonial property should be shared fairly between the parties of the marriage and that, as far as possible, financial agreements should provide for a ‘clean break’. The court can look at a number of factors in deciding what is considered to be fair and our team can advise you on how your particular circumstances may affect such a decision. In practice, it is rare that a Court will decide the asset split and financial arrangements – only about 3% of cases are decided in court, the majority being negotiated via the solicitors or between the two separating parties.
Pre Nuptial and Post nuptial Agreements
Financial issues will always arise on the breakdown of a marriage or civil partnership which is why we advise on pre-nuptial agreements to protect the assets you owned prior to your marriage or civil partnership or your own business in case of divorce or dissolution from your partner. It might seem unromantic but considering that today 1 in 3 marriages end up in divorce for a variety of reasons, taking reasonable steps to protect your assets is a sensible precaution.
We can also help you create a post-nuptial agreement, which is signed by the couple when they are already married or in a civil partnership, even where you are not contemplating divorce or separation. Like a pre-nuptial agreement, this can clarify which assets do not fall under the umbrella of matrimonial property, such as inherited wealth, a family business or property owned prior to the marriage. We can give you the guidance you need on these matters and help you with your pre- and post-nuptial agreements, if you think you need them.
The Family Law (Scotland) Act 2006 provides limited financial provision for unmarried cohabitants whose relationships end by reason of breakdown or death. However, this does not put cohabitants on the same footing as married couples. There are important time limits to meet in making a claim, either on separation or death, so it is essential that you seek advice in these circumstances as soon as possible. Where a claim is made on separation, it must also be shown that the applicant has suffered economic disadvantage to the advantage of the other party or of any child of the relationship and/or the other party has derived economic advantage from contributions made by the person applying for the order. There is no automatic entitlement to share in the capital assets accrued during the period of cohabitation. Neither can an award for maintenance be made or an order granted for transfer of the property.
If you are cohabiting or are about to cohabit, you should consider entering into a cohabitation agreement setting out what you both want to happen in the event that you separate. If you are about to buy a house to live in together and are not married or civil partners and one of you is putting in more by way of a deposit, then this should be covered in the agreement. Our divorce lawyers in Glasgow can help you consider the various issues which you should think about including in such an agreement.
Summary of our Family Law Services
- Cohabitation agreements for couples who wish to regulate the financial aspects of their living arrangements outwith marriage
- Cohabitee rights under the Family Law (Scotland) Act 2006
- Separation and Divorce (or Dissolution of Civil Partnership)
- Financial consequences of separation and divorce
- Negotiating separation agreements (married and cohabiting couples)
- Pre- and post-nuptial agreements to protect assets acquired prior to and during marriage
- The welfare of children including parental rights and responsibilities, maintenance, contact and residence issues (formerly known as access and custody).
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