Many couples reflect the terms of their agreement, whether in relation to their children or to their finances, in a legally binding document called a “Separation Agreement” or a “Minute of Agreement”.
It is an extremely important step towards an undefended divorce which minimises the potential for animosity and polarisation between the parties, not to mention the expense of a defended action of divorce.
In the vast majority of cases a full financial picture for both parties is requested to enable a financial settlement to be reflected in a Separation Agreement as “fair and reasonable”.
The current Law governing the division of property between spouses is found in the Family Law (Scotland) Act 1985 as amended by the Family Law (Scotland) Act 2006. In short, all the property belonging to either spouse at the date of separation, whether it be individually or jointly owned with each other or indeed a third party, less any debts at the date of separation is deemed to be “matrimonial property”. The net value of the matrimonial property is shared “fairly” between the parties to the marriage and quite often “fairly” is in equal shares.
There may be reasons why a greater capital award should be given to one party. In particular a wife may seek to argue that she has given up a career for a few years to raise the parties’ children. Similarly, the source of money or assets used to acquire matrimonial property that was not from the income or efforts of the parties during the marriage may be factors that the Court can consider in determining whether there should be an equal division.
The application of the Law and the knowledge of cases decided in both the Sheriff Court and Court of Session is essential in an ever-changing area of Law. There can be situations which are indeed complex and require a specialist hand to ensure you of the very best outcome.
There are occasions where one spouse may seek from the other aliment or maintenance on a weekly or monthly basis to help with daily living expenses. In determining whether such a payment is reasonable a Court may look at both parties’ financial situations. In particular the Court will look at all the income and outgoings for each party and generally all the circumstances of the case.
An award of aliment before divorce is called “interim aliment” and post divorce is called “periodical allowance”.
In Scotland the “clean break” principle, where after the divorce there should be no continuing financial arrangement between spouses, allows for – where the circumstances dictate – a greater capital sum to be paid where there is the resource to do so to avoid any periodical payment for a fixed period of time (usually less than three years). Periodical allowance is usually only imposed where there is insufficient capital or it is inappropriate to do so.
Parties must also be aware that both private and SERPS pensions can be a very large part of the asset “pot” and that difficulties arise where they are valued as “cash” but of course are not.
Beverley will work with you to ensure you have an understanding of the law and the steps in the process and highlight at the outset the potential for conflict, and of course resolution.