Separation and Divorce – what are my rights?

Nothing in life is straightforward, not least of which are the wide range of issues that couples face when they separate or divorce. Inevitably, it is a very difficult time where, emotions of hurt and anger, though understandable, must be kept in check. Although it is extremely difficult to take the emotions out of the situation, one of the first things you should do is consider putting a Minute of Agreement in place. By doing this, you will be able to set down clearly what is to happen in the future by dealing with the practical matters of separation 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 and when dealing with these you will need to address the following issues:

1. You need to determine the legal date of your separation. This is known as the “relevant date” and is the date on which you actually separate. Most matrimonial assets and debts are valued on that date so it is important that this be determined at the start.

2. The law is not interested which party is to blame or is at fault for the separation and this will not impact any financial settlement.

3. Even if the family home is owned by one spouse, the other spouse will continue to have rights to remain there until the marriage ends although it is possible to have these suspended if there are grounds to allow this.

4. If you attempt to sell your home before you obtain a Divorce the consent of both spouses will be required.

5. Matrimonial property is anything owned by the parties that has been acquired in anticipation of or after the date of marriage but before the date of separation.

6. Inherited property and gifts are not usually considered matrimonial property. However, depending on how you spend that inheritance or how it is utilised, it may well be determined as 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. Any debts accrued by either party during the marriage will be considered joint debts and will require to be split equally.

9. All assets and debts need to be valued and this might mean involving surveyors and other professionals (such as accountants) to conduct the valuation.

Having obtained a valuation of the actual assets and debts, we now need to consider how these are properly dealt with.

1. The basic legal principal is that all matrimonial assets are shared equally although this can be varied if certain special circumstances can be shown.

2. Residence and Contact arrangements should take into account the best interests of your children. Hopefully, such an arrangement can be reached amicably but ultimately if no agreement can be put in place then the Court will decide if necessary after legal argument. Depending on the age if the children, the Court may take their views into account.

3. There may be a requirement for Aliment. Aliment 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.

4. Conflict of interest rules mean it is not appropriate to have the same solicitor representing your spouse and also representing you.

5. Once an agreement is reached a Minute of Agreement is signed and registered in the Books of Council and Session.

6. Be patient – it can take some time to arrive at a negotiated settlement.

We appreciate that this is a very difficult time for clients where emotions tend to run high. It is important to obtain advice from a Solicitor at the earliest opportunity. You can be assured that our experienced team will handle your query with sensitivity and in the strictest confidence. Contact Claire Stevenson at Scullion LAW on 01698 283 265 or by email on claire@scullionlaw.com if you need help or wish to arrange an appointment.

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