Separation and Divorce – what are my rights?

Life is never straightforward! When couples are considering separation or divorce, they are likely to face a wide range of issues. Emotions of hurt and anger, though understandable, must be kept in check at this very difficult time.

Although it is extremely difficult to take the emotions out of the situation, one way of doing this is by putting a Minute of Agreement into place. If you do this, you will be able to set down clearly what has happened up until now and what is to happen in the future. It will also deal with the practical matters such as what happens to the children, money, assets and debts.

The financial aspects of your separation will involve a valuation of your matrimonial assets.  When dealing with these you will need to address the following issues:

1. You need to work out the legal date of your separation. Silly though this may sound, this is the date on which you actually separate. This is the date on which most matrimonial assets and debts are valued.
2. The law isn’t interested in apportioning “guilt” and this will not impact on any settlement.
3. Even if the family home is owned by one spouse, the other spouse can legally remain there until the marriage ends.
4. If you try to sell your home while your spouse remains living there, you will need his or her consent to the sale. Any purchaser cannot force your spouse to move out.
5. Matrimonial property is anything that is owned by the parties that has been acquired after the date of marriage but before the date of separation.
6. Inherited property and gifts are not matrimonial property. However, if you use your inheritance to buy an item for use in the marriage, that item will then become matrimonial property.
7. If you acquire your home before marriage, with the intention of it being the matrimonial home, it will be classed as matrimonial property.
8. Debts usually remain with whoever acquired them. Joint debts such as a mortgage are divided equally.
9. All assets and debts need to be valued. This might mean involving surveyors and other professionals to conduct the valuation. If an asset is inherited, you will need to provide evidence of the inheritance.

Having dealt with the valuation of the actual assets and debts, we now need to consider how these are properly dealt with. This gives rise to another set of issues you need to address:

1. The law says matrimonial property should be shared fairly. The net value of the property is calculated and split. This is usually an equal split. However, if special circumstances can be shown, this might not always be the case. If you own more matrimonial property than your spouse, a balancing payment will have to be made.
2. If there are circumstances where an equal division would be unfair, we will help you assess those circumstances and work out if that might warrant an argument for a greater share in your favour.
3. If you have been economically disadvantaged by the marriage – for example, by taking a career break to raise children – you might be able to claim or agree a capital payment as compensation.
4. If there are children under 16 and you are their main carer, you might be able to agree (or a court might order) the matrimonial home to be transferred to you to allow the children to remain there.
5. A court might award you periodical allowance for a short period to allow you to re-train in a new job or career.
6. You must put your feelings to one side and make residence and contact arrangements. These must consider the best interests of your children. A court may take your children’s views into account. If no agreement can be reached the court can impose appropriate arrangements.
7. Any arrangements made during separation may need to be changed as your children get older (this can be built into any Minute of Agreement).
8. There may be a need for Aliment. This is a payment that arises out of an obligation to reasonably support your former spouse and your children. This takes into account your needs and resources, your earning capacity and other relevant circumstances.
9. Conflict of interest rules mean it is not appropriate to have the same solicitor representing your spouse and representing you.
10. Negotiations between solicitors will normally take the form of letters sent back and forth and/or meetings between them. You and/or your spouse may or may not be present at these meetings.
11. Once an agreement is reached a Minute of Agreement is signed and registered in the Books of Council and Session.
12. Be patient – it can take some time to reach a negotiated settlement.

Contact Us

We appreciate that this is a very difficult time for clients where emotions tend to run high. Please don’t give over things you don’t have to or accept less that you’re entitled to. Please do take independent legal advice before signing anything.  If you need to talk to someone then please contact us. You can be assured that our experienced team will handle your query with sensitivity and in the strictest confidence. You can contact us on 0141 887 5271 (Paisley) or 0141 886 5678 (Renfrew).