Separation and Divorce – what are my rights?

It’s a very stressful time when couples separate and, sometimes, it can be very difficult to think straight. Feelings might be running high and there can be a mixture of anger, frustration, disappointment or sadness, to name but a few. We completely appreciate these issues and will help and support our clients during this most difficult of times.

Our approach to situations such as this is to consider if circumstances could be properly managed by putting a Minute of Agreement into place. If that can happen, it will clearly record what’s happened between the parties and what should happen in the future. The Minute of Agreement will also deal with what should happen with any children, assets, money and debts.

Let’s focus on the financial elements of a separation. The following matters will need consideration:

  1. Before we start to delve into the financial position, one of the key elements of any separation is the legal date on which the separation began. This is important because the legal date of separation is the date on which most matrimonial assets and debts are valued.
  2. The “guilt” or “innocence” of one party or the other will have no impact any financial negotiation or settlement.
  3. If the family home is owned by one spouse or partner, the other spouse who is not the owner can legally live in the house until the marriage or civil partnership ends.
  4. As a result of the Matrimonial Homes and Civil Partnership legislation, if the house is only in one person’s name, that person cannot sell the house without the consent of their spouse or partner. This is particularly important if the spouse or partner who does not have title is actually living in the house!
  5. Matrimonial property is anything owned by the parties that has been acquired after the date of the marriage but before the date of separation.
  6. It is important to note that any assets or property that are inherited and any gifts are not matrimonial property. However, if any money inherited or gifted is used to buy an item for use in the marriage, then that item will be included as matrimonial property.
  7. If you purchase a home before you get married or enter into a civil partnership, if the intention is that it should be the family home, then it will be considered matrimonial property.
  8. Debts usually remain with whoever incurred them. Joint debts should be split equally.
  9. All assets and debts need to be valued. This usually means instructing third party professionals, for instance surveyors, accountants, stockbrokers etc. to conduct a valuation. If one party claims something is inherited, it is up to that party to provide proof of that.

Once the valuation of assets and debts has been carried out, the next stage is to determine how these are properly dealt with. This raises another set of issues, such as:

  1. The law starts off with the premise that assets should be divided equally between the parties. However, there are circumstances where a claim may be made for an unequal division of assets. If, for instance, you own more matrimonial property than your spouse or partner, then there might need to be a balancing payment from you to your spouse or partner,
  2. We will help you assess your circumstances and determine whether there may be a case for arguing a greater share of assets in your favour – or defend such a claim from your estranged spouse or partner.
  3. If you have been economically disadvantaged during the marriage, for instance, by taking time off work to bring up children, you may be able to claim or negotiation a compensatory payment for this.
  4. If there are children under the age of 16 and you look after them most of the time, you may be able to negotiate (or a court may decide) that the family home be transferred into your name.
  5. Sometimes, you might be able to agree or a court may award you periodical allowance to enable you to retrain for a new career or to pick up on a former career.
  6. There may be a potential for Aliment payments. This might occur when there is an obligation to reasonably support your spouse or partner and children. Should this arise, you will need to consider your financial position, your own needs and resources as well as earning capacity and any other relevant circumstances.

There are also a number of other issues to be considered, such as:

  1. What arrangements should be made for contact and residence of any children. In all cases, the best interests of the children are paramount and, in many cases, especially if the case is in court, the wishes and views of the children will be taken into account.
  2. Conflict of interest rules mean that each party must be separately represented. It is not appropriate to have the same solicitor acting for both parties.
  3. Negotiations between solicitors can take time. These normally take the form of exchanges of letters and/or email as well as meeting between them in an effort to reach a satisfactory settlement. Any meetings may take place with or without the parties present.
  4. There are also other methods to be considered such as mediation or collaborative working and we will discuss these options with you to determine if these are appropriate.
  5. Once and agreement is reach, the terms of the agreement are recorded in a Minute of Agreement. This is then signed and recorded in the Books of Council and Session.

At all times, we recommend clients should be patient. It can take some time to reach a negotiated settlement. We appreciate that this is a difficult time and that emotions tend to run high. It is very important that you are given clear, independent legal advice before you sign anything.

Our experienced solicitors will guide you each step of the way and they will handle your case in the strictest confidence.  If you wish any help with your divorce or separation, please contact us.

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