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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, sometimes, emotions of hurt and anger, though understandable, must be kept in check.
We appreciate it is extremely difficult to take the emotions out of the situation. However, one of the options you should consider is putting a Minute of Agreement into place. By doing this, you will be able to set down clearly what has happened and what is to happen in the future as well as 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 because this is the date on which you actually separate and is the date on which most matrimonial assets and debts are valued.
2. The law is not interested in who is the “guilty” party 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 attempt to sell your home while your spouse remains living there, you will need your spouse’s consent to the sale and the purchaser cannot force your spouse to move out.
5. Matrimonial property is anything 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 or any inherited money to buy an item for use within the marriage then that item will be included as matrimonial property.
7. If you acquire your home before marriage, but 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 split equally.
9. All assets and debts need to be valued and this might mean involving surveyors and other professionals to conduct the valuation. If an asset is inherited, then evidence of the inheritance will be required.

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. The law requires fair sharing of matrimonial property. The net value of the property is calculated and split. This split is usually equally but 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 can assess those circumstances to determine whether they 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 one-off payment to compensate.
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. A court might grant a 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 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. 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. 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. Conflict of interest rules mean it is not appropriate to have the same solicitor representing your spouse and also representing you.
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. 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 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. Martin Monahan, based in our Livingstone office, is an accredited Family Law Specialist and can help you with his expert advice.
You can be assured that our experienced team will handle your query with sensitivity and in the strictest confidence. Is you need our help, contact us on 01506 815 900 or email us now.

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