Separation and Divorce - what are my rights?

Things you should know about if you are considering separation or divorce

When people get married or enter into a civil partnership, the very last thing they think about is the possibility of it ending. Sadly, as statistics bear out, many marriages and civil partnerships end up in separation, divorce, and dissolution. When this happens, it is stressful. Usually, emotions run high with feelings of hurt and anger colouring decisions that need to be taken to enable the parties to move forward.

Taking emotions out of the situation is extremely difficult but if you are able to put them aside, one of the first things you should do is consider entering into a Separation Agreement with your former spouse or civil partner. If you do this, you can record what has happened between you and to lay down a clear path of dealing with the practicalities of the separation, divorce, or dissolution. Those practical matters will address what happens with the children, money, debts, and assets.

As you would expect, when a separation, divorce or dissolution occurs, any assets need to be divided and responsibility for debts addressed. You also need to deal with the practical aspects of the welfare of the children.

What are the material things we should consider?

1. One of the very first things you need to consider and agree is the actual date of your separation. This is important because the legal date of separation is the date that is used to value the assets and debts of the relationship.

2. The law does not apportion blame for the separation. It is not interested in who is the “guilty” party. Difficult though it may be, it is important to focus on the practicalities of the separation rather than the emotional implications.

3. When it comes to the family home, even if it is owned by the spouse or civil partner who has left, the other spouse or civil partner can legally remain in it until the marriage ends.

4. Again, with regard to the house, if it is in your name and you want to sell it, you will need the consent of your spouse of civil partner to do that. If you wish to force your spouse or civil partner to move out, you may have to go to court.

5. You must consider what is matrimonial property. Essentially, this is everything acquired by the parties from the date of marriage until the date of separation.

6. An inheritance is not matrimonial property. However, if the inheritance is used to buy something for use within the marriage, then anything of that nature becomes matrimonial property.

7. If you buy a home before you get married or enter into a civil partnership with the intention of it becoming the family home, then it will be considered to be matrimonial property.

8. Any individual debts remain with the party who incurred them. However, joint debts – usually debts such as a mortgage, need to be shared equally.

9. Evidence is usually needed to verify the value of assets. For instance, a surveyor should be engaged to value the family home. Things like pensions valuations need to be obtained showing the value at the date of separation. Similarly, any debts need to be vouched.
Now that the value has been determined, what are the next steps?

Once you know the value of the assets and extent of the debts, you then need to move to the next stage in the process. Some, or all of the following steps need to be taken:

1. The basic position is that matrimonial property should be shared fairly. The position you usually start with is a 50/50 split between the parties. However, if there are special circumstances and one party owns more matrimonial property than the other, a balancing payment usually has to be made.

2. There may be circumstances where an equal division of assets would be unfair. If that is the position, the party who believes they are disadvantaged must argue for larger share of the assets.

3. Another example is where one spouse or partner has been economically disadvantaged. This might happen when one party takes a career break to bring up children. In those circumstances, the disadvantaged party might make a claim for a compensatory payment.

4. If there are children under the age of 16 years, the party who is the main carer of the children may seek to have the family home transferred into their sole name. The reason for this is to allow the children to remain in the family home after the separation.

5. One party may claim or be awarded periodical allowance by a court for a short period of time to allow one of the parties to retrain in a new career or job.

6. When dealing with residence and contact with children, any arrangements and decisions must be taken in the best interests of the children. You might have to put your feeling aside when dealing with this. If you cannot reach an agreement with your former spouse or partner, the court will make that decision for you and, when doing so, will take your children’s views into account (depending, of course, on their age). 

7. You will need to take into account that the initial arrangements made regarding residence and contact with children may need to be changed as the children get older.

8. Aliment may be required. This is where a payment is made to support your former spouse or partner and any children. When considering whether aliment is required, your own needs and resources, your earning capacity and other relevant circumstances will be taken into consideration.

9. The same solicitor should never represent you and your former spouse or partner. Conflict of Interest rules apply to this situation and no solicitor should act on behalf of both parties.

10. In order to establish an agreement, the solicitors representing each party will communicate the needs and requirements of each. This can take the form of an exchange of email, letters, and meetings. You and/or your former spouse or partner may be present at some of these meetings. 

11. When an agreement is reached between yourself and your former spouse or partner, a Separation Agreement is prepared and signed by each of you. Once signed, the Separation Agreement is then registered in the Books of Council and Session.

12. You must be aware that it can take some time to reach a point where both parties agree to enter into a Separation Agreement. There is almost always a need to compromise on both sides to achieve sufficient consensus for an agreement to be reached.

It is very important to take legal advice before you agree to anything. Whilst this can be a very difficult time emotionally and financially, you should take the time to find out what you are entitled to. If you are considering separation or divorce and are looking for some solid advice, please get in touch with us right away.