Divorce and Separation FAQs
Though we hope the following scenarios provide useful information, they are for guidance purposes only.
You should take legal advice on your particular query even if the given scenario appears to be identical to your own situation.
No two separations can ever be the same and there may be other factors which require to be taken into consideration which would result in different answers being given.
Given that we’re a firm of solicitors, you’d expect a disclaimer like this, wouldn’t you?
Where there’s a previous separation agreement and you now want to divorce
After my husband and I separated, we had a Minute of Agreement prepared by solicitors. We didn’t get divorced at the time and my husband has now moved to England. I’m still in Scotland. We have 2 children who live with me aged 10 and 12. Can we get divorced in Scotland?
Yes. As you still live in Scotland, you can get divorced in Scotland. As your financial issues would have been dealt with in the Minute of Agreement, the only remaining matter to be dealt with is Divorce. As you have children under 16, you would need to use the formal procedure for Divorce as opposed to the simplified procedure. This is on the basis that there are no outstanding issues (contact / residence) regarding the children.
Use of the simplified / DIY divorce procedure
My wife and I have been separated for 6 months and I would like to be divorced. There are no financial issues to be dealt with. Can I use the simplified divorce procedure and, if so, is it cheaper?
You can use the simplified procedure if neither party is making any financial claim or if financial issues have already been dealt with.
However, you can only then use the simplified procedure if you have been separated for more than one year and your wife is willing to sign the consent form. Otherwise, you could wait until you have been separated for 2 years or more, in which case, your wife’s consent is not necessary.
As far as cost is concerned, it is significantly less costly to be divorced using the simplified procedure rather than the formal procedure. You should also note that you can only use the simplified procedure if there are no children under 16*.
*NOTE: There are proposals to change the law in this regard – i.e. to allow spouses with children under 16 who have no outstanding financial issues to use the simplified procedure. Any change in the law here is unlikely to take place before April 2018.
Breakdown of marriage due to adultery leads to refusal of child contact and financial provision concerns
My wife and I separated 4 months ago after she found out that I had been having a relationship with another woman. I moved out at that point and my wife now won’t let me see our children. What can I do regarding seeing my children and does my infidelity mean that my wife is entitled to more, financially speaking?
As far as the children are concerned, the fact that you have been unfaithful should not prevent you having contact with the children.
Therefore, unless it would not be in the best interests of the children for you to have contact with them, your wife should not be withholding contact.
It is better that these matters are kept out of the courts, if at all possible. If you are able to discuss contact arrangements directly with your wife, that would be best. That is not always possible and sometimes correspondence passing between solicitors can resolve difficulties regarding contact. However, there are situations when agreement cannot be reached even after correspondence between solicitors. Prior to raising a court action in that situation, it would be prudent to try and resolve the matter through family mediation. Should that fail to resolve the issue, the only alternative would then be court proceedings.
Going to court is generally the most costly way of dealing with the matter. You also have to bear in mind that, if it is necessary to raise court action to seek contact with your children, it will be someone other than the parents of the children, i.e. a Sheriff, who will be making a decision regarding your children. In other words, the contact a Sheriff awards may not really suit you or your wife.
Of course, if you are in a situation where your wife will not agree to anything you suggest regarding contact, there may be no alternative to court.
As far as financial claims arising out of matrimonial separation are concerned, the fact that you have been unfaithful does not have any effect on your wife’s financial claim. It does not entitle her to receive more than she would be able to claim if you had not been unfaithful.
You may wish to consider a Separation Agreement to deal with financial issues and, if contact arrangements can be agreed outwith the courts by agreement between you or by correspondence between solicitors, you may also be able to include contact arrangements in the Separation Agreement. This could be the most cost-effective and amicable way of dealing with your situation.
A Separation Agreement is legally binding once signed by both spouses but, if your circumstances or those of your wife or children change in the future, it would be possible to review matters regarding contact arrangements.
It would not generally be possible to review matters regarding financial issues later – i.e. the agreement would be “final” in that regard – assuming both you and your wife had the benefit of legal advice at the time the agreement was negotiated and signed.
Legal implications of use of pre-owned funds to buy a house in joint names with new partner
I was previously married and divorced from my husband. I would now like to buy a house with my new partner. I would be using my divorce settlement to provide the deposit. My partner would not be contributing anything to the deposit. We would then both be contributing to the monthly mortgage payments. What would happen if I separate from him in the future? Would I get my money back? We are not planning to get married and will be living together.
You should enter into a Minute of Agreement with your new partner which should be signed by both of you. Preferably, you should do this before there is any concluded contract for the purchase of the house.
The Minute of Agreement should make it clear whose funds are being used for the deposit.
The document should also state what you agree should happen in the event that you separate at any point in the future. This could include: whether the property is to be sold; whether there is to be the option to transfer ownership from both of you to one of you; and whether any “reimbursement” to you is to be of your actual contribution or whether it should be on a percentage basis relative to any change in value of the house in the meantime (or some other basis).
Some of these issues could be covered in the disposition (the deed which transfers ownership of the house) but it would be better to have it dealt with by Minute of Agreement because that gives more scope to cover the fine details.
Claim for financial provision on termination of cohabitation between a man and a woman
I have lived with my current partner for 12 years and we separated 4 months ago. I have not heard from her since our relationship ended. Can my ex-partner make any financial claim on me?
Yes, it is possible.
Your ex-partner would need to do so within one year of your date of separation in terms of the Family Law (Scotland) Act 2006.
As far as the property in which you live is concerned, if it is owned in joint names with your ex-partner, it would be dealt with separately and there is no time limit in that regard.
Your ex-partner could try to force the sale of it by raising a court action for Division and Sale which, if successful, would mean that you are then compelled to sell the property.
Otherwise, broadly speaking, your ex-partner’s possible claim under the 2006 Act would be for payment of a capital sum based on any economic advantage gained by you from contributions by your ex-partner and economic disadvantage suffered by your ex-partner in that regard and / or based on the continuing burden of childcare (if there are children).
The 2006 Act is relatively new and the effects of the legislation are still being worked out in cases decided by the courts.
It seems to be the case that courts will adopt a “broad brush” approach when considering whether to award financial provision to a former cohabitee.
When looking at the actions of the parties during the relationship, the court will consider their financial effect rather than what the parties intended. Very often someone’s intention when they take a particular action is different to effect that action produces.
As you can probably see, this is not a straightforward matter to explain.
We would always recommend you to take specific legal advice regarding your particular situation because no two separations following cohabitation are the same and each requires to be treated on its own merits.
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