When a couple decide to separate, there are many issues that need to be resolved. Unfortunately people are often overwhelmed with the amount of information provided to them usually by family members, friends, work colleague or the internet. There are misconceptions held by people around the separation and divorce process which misinform them and the way in which to resolve matters going forward. Below you will see some of the most common we tend to encounter to ensure that these myths are busted to allow you to make informed decisions regarding your separation and divorce.
This is a commonly held belief amongst those who are separating. Whilst there is a procedure known as simplified divorce (or dissolution of a civil partnership) there are strict criteria to be applied for this to be utilised by parties. Simplified divorce procedure can be used when there are no children of the marriage or civil partnership under the age of 16 and all financial matters have been resolved. Parties must also have been separated for at least one year (with the consent of the other party) or two years (where consent of the other party to the divorce is not required) While the actual procedure for divorce can be dealt with fairly quickly once the criteria is fulfilled, this timescale is very much dependent on business at the court and the solicitor and parties involved in the case.
There is no such thing as a common law wife or husband in scots law. In 2006, new legislation was brought into force regarding cohabitants. The law relating to cohabitants is very different to the law relating to married couples. Cohabitants do not have the same rights upon separation. It is extremely important that people take advice when considering cohabiting with one another or indeed choosing to get married as both sets of circumstances have implications for their legal rights and whether to cohabit or enter into marriage. The rights which cohabitants have are significantly less than those who are married and when cohabiting couples separate there are strict time limits regarding when a claim can be raised.
Whilst it is true that married couples are entitled to a fair share of the matrimonial “pot” (the assets and liabilities accrued during the period of marriage) and the starting point is a 50/50 split, this does not mean that everything parties have accrued must be split. Parties can effect a fair share of the matrimonial pot in whichever way is best for them. For example one party may wish to remain in the matrimonial home, and buy out the other party; or perhaps one party is due a sum from the other but they do not have access to a capital sum at the point of resolving matters but have a pension- they could resolve this by way of a pension share.
This is a commonly held belief by many people, as is the belief that debts held in the others person name are nothing to do with them. Anything which is accrued, asset or debts, during the period of marriage (date of marriage to date of separation) is considered to be joint regardless of whether it is in joint or single names. Accordingly, even if the matrimonial property is only in one person’s name, the other would still have a claim over this, as with pensions, savings, etc. The same applies to debts held by either party. There are some exceptions to this including inheritance.
There is no prescriptive “rule” as to how childcare arrangements should be made when parties separate. Relevant legislation and decisions from the courts tell us that any decision should be in the best interests of the children. Often this will also need to take into account the parents respective schedules as to what can operate on a practical basis. However, it is an entirely subjective matter and will be dependent on the parties’ circumstances and the children themselves. There has been a shift change in the last decade with real progression towards shared care starting to become common amongst separating couples. This does require a high level of communication and ability to put any differences to the side. Parties can often find mediation a useful tool to allow them to get to the arrangements they seek with their ex-partner.
The majority of case where parties are separating resolve without the need to go to court. Whilst ultimately parties do require to apply to the court to grant divorce, the process prior to that where finances and matters relating to children are resolved normally happens out with the court process by way of a document called a minute of agreement Parties can use different methods to achieve this. Negotiation can take place between partiers and their solicitors, parties can go to mediation to assist in coming to agreement’ the collaborative process whereby parties and their solicitors come to agreement by way of meetings using a financial adviser known as a financial neutral and relationship counsellors; arbitration. Some cases will be agreed on the finances but require court process for issues relating to children or vice versa. If the matter cannot be resolved by the processes outlined above, then court action can be required but it is important to remember these are the minority of cases.
Sometimes this will be true, but ultimately most parties can resolve their finances and their issues around their children on a fairly cost limited basis if they co-operate, provide instruction clearly and timeously to their solicitor (or to their spouses solicitor if they are representing themselves) and are committed to resolving matters in a straightforward manner.
The most important at thing to remember is you are not alone in your situation. At Jones Whyte, we are committed to our clients, ensuring we help achieve the best outcome for you and your family whilst supporting you through the process in a clear, fair way. If you are unsure of the first, or the next, steps and would like to fully understand your options please do not hesitate to contact me, Danielle Stevenson or any of our other who are here to assist you.
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