Separation occurs where there has been an irretrievable breakdown within a marriage or civil partnership and one or both parties wish to legally part from the other. In most cases, this process is simple, especially if there are limited assets and no children under the age of 16 of the relationship. However, where there are children under the age of 16 involved, separation between spouses or partners can become a complex legal matter.
Disagreements over children’s future living arrangements, amongst others, can prompt extensive legal costs and Court time. It would always therefore be advisable to attempt to manage your separation as amicably as possible before your divorce or before the dissolution of partnership. Separation itself is a harrowing experience for children, and so their fundamental needs should always be put first before any other parting consideration.
A popular method to help manage separation and the ensuing consequences is that of a separation agreement. This arrangement is a contract drawn up between two spouses or partners once they are living apart in prepartion for a divorce or dissolution of partnership. It is enforceable and sets out all agreements between the parties such as future financial arrangements orhow contact of thechildre will operate. To help reduce costs, spouses and partners may draft their agreements together before giving them to a solicitor to formalise in a ‘minute of agreement’ which is then registered in the Books of Council and Session. However, if no agreement can be reached initially, then it is possible to seek help from a mediator beforehand.
In all circumstances where there is discord over children, the Court will intervene and make a decision in respect of the best interests of the children. As such, the court will require all details of the children of the relationship whether biological, adoptive or step-children, including any such children that are as treated as part of the family although foster children are excluded. For those children under the age of 16, there must be a clear arrangement in place as to where the children will live and with which parent. There must also be financial arrangements agreed in order to provide support for any children by both parties regardless of which parent the child will live. Similarly, for those children over the age of 16, it will still be necessary to detail how they will be financially supported following separation. There is a duty to provide for children up to the age of 18 or 19 depending whether they are in full-time non-advanced education; or up to the age of 25 if they are enrolled in full-time further education. Such arrangements surrounding children can be made and agreed by both parties themselves as part of the separation agreement and will be upheld if the Court feels that the decision is in the best interests of the children. However, where there are children and financial considerations to be decided by spouses and partners, there is often much conflict resulting in necessary cCurt intervention. Sometimes, children find themselves victims in a separation or divorce, and their future welfare and fundamental needs have to be placed at the forefront of this legal process.
To manage a complex legal separation and ensure that arrangements are made in respect of the best interests of the children primarily, the Court will intervene and grant different orders to help resolve disagreements between parties. Prior to this stage, both spouses and partners may have sought help from a mediator or law practitioner as well as advice offered by the Scottish Government in relation to separation but have still failed to reach a qualified agreement. As such, the children’s welfare is then left to be decided by the Court which, will ultimately rest on the best interests of the children being upheld. The Court can therefore make an order regarding a number of issues concerning the children.
This type of order granted by the Court considers who children should live with and is solely dependent on where the Court thinks it is most beneficial for the children. Accordingly, the Court can make a residence order in favour of only one spouse meaning that children must only live with that parent. Alternatively, the Court can make a residence order in favour of both parents, even whilst living apart. This type of order is considered ‘joint custody’ and will detail the length of time children should live with each parent. The Court may even make an order for children to live with another family member such as a grandparent. Therefore, to avoid Court fees and time, it would be advisable to consider agreeing children’s living arrangements amicably before divorce or dissolution of partnership.
In most cases, the Court will expect both spouses and partners to have made their own arrangements in relation to keeping in contact with shared children. As such, a Court order in the form of contact arrangements will only be considered by the Court when there is discord or concerns over a parent having contact with children. This type of situation may arise, as an example, where spouses or partners are separating as a result of domestic violence The contact order therefore may include set conditions in relation shared contact of the children.. A contact order may also be used to facilitate contact between children and other relatives and friends if required by law.
In certain circumstances, a Court can make an order called an interdict against a parent to prevent something from happening that is not perhaps in the best interests of the children.
The Court also has the ability to make an order about a specific issue that is disputed by spouses or partners. An example is whether children should pursue religious education and will be dependent on the facts surrounding the case itself. Other issues may include those to do with the welfare and care of the children.
Therefore, putting children first before separation Is of vital importance. The legal and dissolution is not a simple or uncomplicatedone for children who are often left in the middle. The Court process itself is not unproblematic and, therefore, separting couple should look to sorting out the isues in relation to the children before attempting to proceed to divorce or dissolution.
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