Separating or divorcing can be one of the most stressful events in anyone’s life. We understand this – it can happen to anyone!
The consequences for your life – and your finances – can be extreme. You need someone who can guide you through the law covering your situation, and explain your options so that you can make the choices you have to make about your life.
It’s never easy, but we can help you through it, and set you up to start off the rest of your life.
Divorce and Separation –where do I stand?
- The rules are the same for all marriages and civil partnerships, so for clarity, we’ll use the term “divorce” to cover both termination of a marriage and dissolution of a civil partnership, and the word “partner” to cover both spouses and civil partners.
- There are also a number of rights which apply where a couple are living together without being married or in a civil partnership. These are similar in a lot of cases, but quite significantly different in others.
- Separation covers the arrangements for dealing with issues between the parties before (or without) a divorce.
- Divorce is when the court brings an end to the marriage or dissolves the civil partnership.
- The law separates out the issues involved in separation and divorce and there are only very rare cases where one area will impact on the other.
- The Merits means the reason for the breakdown, usually only relevant for divorce. The grounds are
- One year’s separation if both partners agree;
- Two year’s separation if the other partner doesn’t agree;
- Desertion (which means virtually disappearing without a trace rather than just moving out) followed by one year’s separation.
- Adultery – usually before the separation; and
- Unreasonable behaviour.
- Children – what happens to them? We’ve done a separate section on children later.
- Maintenance. Maintenance for children is wholly a matter for the Child Support Agency. The court can’t have anything to do with it. Maintenance between partners is still dealt with by the court.
- Maintenance before divorce is called “aliment” and is usually there to keep things on an even keel until the rest of the financial affairs get sorted out.
- Maintenance after divorce, is called “periodical allowance”. The idea behind Scots Law is that divorce should be a clean break, so periodical allowance is rare. Even when it is granted, it will only be in special circumstances and for a fixed period of time.
- Capital. This is how Scots Law tries to achieve a clean break – by a one-off, once and for all payment known as a “capital sum”.
- The capital sum is based on “net matrimonial assets”. This means the value of assets accumulated during the marriage less the value of any liabilities accumulated during the marriage. These are generally calculated as at the date of separation (known as “the relevant date”). So if you win the lottery, the day after you separate, congratulations. If your partner does, tough luck.
- What is a matrimonial asset? Anything that has been acquired or which has gone up in value between the date of marriage and the date of separation. So a house bought during the marriage is a matrimonial asset.
- What is a matrimonial liability? Any debt accumulated during the marriage. The classic example is a mortgage, or a loan.
- It doesn’t matter whose name an asset or a liability is in. If they were acquired or incurred during the marriage, they are matrimonial property. There are very few exemptions to this.
- The principle is to take the value of all the matrimonial assets, deducts all the matrimonial assets, and then split the value fairly between the partners.
- Life isn’t that tidy, though. Each partner will want to keep some property, for example, the house. Both might agree who gets what, but there may be disagreements. Both might agree to sell off some assets. Debts such as loans might be taken over by one or other, or might be settled out of the proceeds of any sale of assets.
- In that situation, you can work out on where you stand on paper.
- Add up the value of the assets that each partner is keeping. Keep separate totals for each partner.
- Take away the value of any debts being taken over by that partner from their total.
- Split the sale proceeds (less any expenses of same like estate agency fees, advertising or auctioneers’ commission) and add it onto both figures.
- Unless you’re lucky, one partner will have a total bigger than the other.
- The capital sum is the amount that the partner with the bigger total has to pay the other to make it a fair split.
- Add both totals together. Work out the percentages that each partner should have for a fair split, then work out how much one partner needs to pay the other to bring both totals into line with that percentage.
- The split will normally be 50-50. There are some circumstances where a 55-45, 60-40 or different split might be justified in the case.
- Protective and other orders. There will be some circumstances where a relationship may be abusive, or one partner starts disposing of assets. There are a variety of court orders that can be asked for to guard against this sort of thing.
- Most common is an interdict. In England and the USA, these are called “injunctions”. An interdict is an order from the court banning someone from doing something. This might be threatening or abusive behaviour, selling off property, or harassment. If the court thinks it’s reasonable, the court can authorise the police to arrest a person who seems to be breaking the interdict.
- An exclusion order is a bit like an interdict, but stops someone entering a house, even if their name is on the title deeds.
- There are so many orders and the situation is complicated because everyone’s circumstances are different. There is no “one size fits all” solution. See your solicitor as soon as possible.
For more details, contact us.