Gillespie Gifford & Brown

Seperation & Divorce


Separation and Divorce – what are my rights?
Getting married might seem pretty straight forward. Not so the situation where couples decide to separate or divorce. This can be a very difficult time and can be fraught with hurt or anger and these must be held in check when trying to resolve issues between the parties.
Whist is it very difficult to remove the emotion from the situation, perhaps one of the most sensible things to do is to consider putting a Minute of Agreement into place. A Minute of Agreement will set down clearly that is to happen in the future and will deal with the practical things such as the what should happen with the children, money, assets and debts.
When married couples separate, the value of the matrimonial assets and debts of the parties needs to be assessed. The following issues also need to be addressed:
1. 1.    What the actual date of separation is. This might not be as simple as it sounds but it is important because it’s at that date on which any valuations are based.
2. 2.    The law isn’t interested in who is “guilty” or “innocent”. This isn’t its purpose and will not impact on any settlement.
3. 3.    How the family home is dealt with it another issue. Even if it’s  only owned by one of the parties, this does not prevent the other party continuing to live in it after the separation.
4. 4.    If only one party owns the house, he or she will need the consent of his or her spouse to sell the property, failing which, a court order will be required.
5. 5.    When considering matrimonial property, we mean anything owned by the parties that has been acquired after the date of the marriage but before the date of separation.
6. 6.    If one of the parties receives in inheritance or a gift, this would not be matrimonial property. However, if this is used to buy an item for use within the marriage, this item  would then be considered matrimonial property.
7. 7.    If one of the parties buys a home before the marriage but has the  intention  of it becoming the matrimonial home, it will be considered to be matrimonial property
8. 8.    Any debts incurred will usually remain with the party who acquired them. Joint debts such as a mortgage or loan will be split equally.
9. 9.    All assets and debts need to be valued. This generally means involving independent professionals to value such things as the matrimonial home or business assets, pensions and insurance policies.
Having dealt with the valuation of the actual assets and debts, we now need to consider how these are properly dealt with. This then gives rise to another set of issues that you need to address:
1. 1.    Assets are usually divided equally. However, this isn’t always the case.  If an unequal split of assets is asked for, there needs to be justification for this.  And if established a balancing payment will have to be made.
2. 2.    If there are circumstances where an equal division would be unfair, we can assess those circumstances to determine whether they might warrant an argument for a greater share in your favour.
3. 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 one-off payment to compensate.
4. 4.    If there are children under 16 and you are their main carer, you might be able to agree (or a court might order) that the matrimonial home is transferred to you to allow the children to remain there.
5. 5.    A court might grant a periodical allowance for a short period to allow you to re-train in a new job or career.
6. 6.    You must put your feelings to one side and make residence and contact arrangements that take into account the best interests of your children. If no agreement can be reached a court will (depending on their age) take into account your children’s views.
7. 7.    Any arrangements made during separation may require to be changed as your children get older (this can be built into any Minute of Agreement).
8. 8.    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.
9. 9.    Conflict of interest rules mean it is not appropriate to have the same solicitor representing your spouse and also representing you.
10. 10.    Negotiations between solicitors will normally take the form of letters sent back and forth and/or meetings between them where you and/or your spouse may or may not be present.
11. 11.    Once an agreement is reached a Minute of Agreement is signed and registered in the Books of Council and Session.
12. 12.    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. Please don’t give over things you don’t have to or accept less that you’re entitled to and 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.

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