Separation in Scotland: What Happens When a Relationship Breaks Down?

When a relationship breaks down, there can be a lot to think about. Where will you live? What happens to your home and finances? How will you support yourself? What arrangements should be made for your children?

Separation can be an emotional and uncertain time, but understanding your legal position can make the process easier to manage.

The law in Scotland is different from the law in England and Wales, so it is important to obtain advice based on Scottish law.

What does separation mean?

There is no formal legal process that you have to follow simply because a relationship has ended.

For some couples, separation means that one person moves out of the family home. However, it is possible for a couple to be separated while continuing to live in the same house, particularly where financial circumstances make it difficult for one person to move out.

If the date of separation is important, for example because it may affect the progress of divorce proceedings or financial claims, it is sensible to obtain legal advice and keep a clear record of when the relationship ended.

What should you do when you separate?

There are several practical issues which usually need to be considered when a relationship breaks down.

Living arrangements: Decide whether one person will move out of the family home or whether you will remain living together temporarily or more long term. If you own the family home jointly or have a mortgage, obtain legal advice before making significant decisions about the property. Just because one party has the family home in their name, this does not automatically mean it is excluded from financial separation.
Bank accounts and bills: Consider how joint bank accounts, credit cards, loans, mortgages and household bills will be dealt with. Essential household expenses still need to be paid while longer-term arrangements are being negotiated. If you are named upon the mortgage you should continue to make payment and this also applies to any associated insurance held as part of the mortgage agreement. It is also important to note that Council Tax liability comes from occupancy so if you move out then you should update the Local Authority – legally that liability will no longer be yours.
Financial information: Keep copies of bank statements, mortgage information, pension statements, investment details, tax documents and information about significant assets and debts. These documents may be important when financial matters are being resolved.
Children: Try to establish a stable routine for children as soon as possible. This should cover where they will stay, contact with each parent, school arrangements, holidays and other important matters. Structure and stability is paramount for the children.
Legal advice: Taking advice at an early stage can help you understand your rights before you make decisions that could affect your financial or legal position.

What happens if you have children?

Separation does not end a parent’s legal responsibilities towards their children.

In Scotland, Parental Responsibilities and Rights (PRRs) cover important matters including safeguarding and promoting a child’s health, development and welfare, providing direction and guidance, maintaining personal relationships and direct contact and acting as the child’s legal representative.

Parents should try to agree practical arrangements that are in the best interests of their children.

These may include:

Where the children will live: Children may live mainly with one parent, spend substantial time with both parents or follow another arrangement suited to their circumstances for example share care
Contact: Parents should consider when children will spend time with each parent. This can include weekdays, weekends, school holidays, birthdays and Christmas or other special occasions.
Education: Parents may need to agree matters concerning schools, parents’ evenings and communication with teachers.
Medical care: Arrangements may be needed for medical and dental appointments and decisions about treatment.
Holidays: Parents should consider arrangements for holidays, including whether a child will travel abroad and whether consent or other documentation is required.
Communication: Agreeing how parents will communicate about the children can help avoid unnecessary disputes. Where direct communication is difficult, some parents find email, text messages or parenting apps helpful.

If parents cannot agree, the Scottish courts can make orders concerning children.

However, court proceedings should not normally be the first option where a safe and workable agreement can be reached. Once the matter is before the Sheriff, orders will ultimately be what he or she considers to be in the best interests of the children and that may not be what either parent considers best.

Child maintenance

Both parents have financial responsibilities towards their children and separation does not change this.

Parents can agree child maintenance between themselves. Alternatively, the Child Maintenance Service may be able to calculate and collect payments where appropriate.

The amount payable depends on various factors, including the paying parent’s income and the amount of overnight care throughout any given year.

Child maintenance is separate from the wider financial arrangements between separating spouses or civil partners and is governed by the Child Maintenance Service.

What happens to the family home?

The family home is often one of the most difficult issues to resolve. If you own the property jointly, possible arrangements include:

one person buying out the other’s interest;
selling the property and dividing the proceeds;
continuing to own the property jointly for a period; or
reaching another arrangement that suits the circumstances.

The fact that one person has paid more towards the mortgage or household expenses does not necessarily mean that they will automatically receive a greater share of the property.

If the property is rented, the position will depend on the tenancy and the legal rights of the parties. You should obtain advice before ending a tenancy or asking one person to leave as there are certain rights in relation to occupancy that require to be considered.

What happens to savings, pensions and other assets?

For married couples and civil partners, Scottish law provides a framework for dealing with financial matters when a marriage or civil partnership ends.

This can involve:

Savings and investments: Bank accounts, investments and other financial assets may need to be identified and taken into account.
Property: The value of the family home and other property may be relevant to the financial settlement.
Pensions: Pensions can be significant assets and should not be overlooked simply because they cannot normally be accessed immediately. Pension sharing may be appropriate in some circumstances.
Debts: Mortgages, loans, credit cards and other liabilities need to be considered alongside the assets.
Business interests: If either person owns a business or has an interest in a company or partnership, this may need to be taken into account.

For married couples, the law generally starts from the concept of matrimonial property, with the aim of achieving a fair sharing of relevant matrimonial property. There are, however, important rules and exceptions, so the outcome will depend on the individual circumstances. Fair sharing does not always mean equal sharing.

What if you are not married?

The financial position of an unmarried couple can be very different.

There is no Scottish equivalent of a common law marriage. Living together for many years does not automatically give an unmarried couple the same financial rights as a married couple. However, cohabitants do have certain legal rights under Section 28 Family Law (Scotland) Act 2006.

A former cohabitant can, in certain circumstances, apply to the court for financial provision following separation. An important point is that an application has to be made, meaning warranted and effectively served, within one year of the date on which the couple ceased to cohabit. These claims involve tests regarding financial advantage and disadvantage – different from a marriage.

This is a strict and important deadline. If you are an unmarried couple who have separated, you should take legal advice promptly rather than assuming you can deal with financial matters whenever you are ready.

The Scottish Government has been consulting on proposed reforms to the financial rights of cohabitants. Proposed reforms should not be confused with the law currently in force, so up to date legal advice is particularly important in this area.

Do you need to get divorced immediately?

No. Separation and divorce are different things.

A married couple can separate without immediately applying for divorce. You may wish to resolve financial and childcare arrangements before deciding whether and when to proceed with divorce.

However, remaining married can have legal and financial consequences. Marriage can continue to affect matters such as financial rights and inheritance, so it is important not simply to leave matters unresolved indefinitely.

If you ultimately want to end the marriage, divorce will normally be required.

How does divorce work in Scotland?

In Scotland, divorce is generally based on the irretrievable breakdown of the marriage. One way of establishing this is through a period of separation:

One year’s separation with consent: Divorce may be possible after the parties have been separated for at least one year if the other spouse consents to the divorce.
Two years’ separation without consent: Divorce may be possible after two years of separation even if the other spouse does not consent.

There are also other circumstances in which divorce can be sought, including certain situations involving unreasonable behaviour.

In straightforward cases where there are no financial matters to be resolved and no children under sixteen years of age, the simplified divorce procedure may be available. There are specific requirements which must be met, including requirements relating to children and financial matters. If your circumstances are more complicated, you may need to use the ordinary divorce procedure.

What is a separation agreement?

If you and your former partner can reach agreement about your finances, your solicitor may recommend putting that agreement into a formal legal document.

For married couples and civil partners, this is commonly known as a Minute of Agreement or Separation Agreement

Depending on the circumstances, an agreement can deal with matters such as:

the family home;
savings and investments;
debts;
pensions;
vehicles and personal possessions;
ongoing financial support; and
business interests.

Putting an agreement into a formal legal document can provide greater certainty and reduce the risk of disputes arising in the future.

Arrangements concerning children can also be recorded, although it is important that any agreement reflects the children’s needs and welfare.

Do you have to go to court?

No. Court proceedings are not automatically required when a relationship breaks down.

Many couples resolve their arrangements through negotiation between their solicitors.

Other options include:

Mediation: An independent mediator helps both parties discuss issues and try to reach an agreement. Mediation is not suitable in every situation, particularly where there are concerns about domestic abuse or a significant imbalance of power.
Collaborative practice: Both parties have their own specially trained solicitor and agree to try to resolve matters without going to court.
Solicitor negotiation: Each person has their own solicitor who can advise them about their legal position and negotiate on their behalf.
Court proceedings: If agreement cannot be reached, it may be necessary to ask the court to make a decision.

Where it is safe and practical, resolving matters by agreement can often reduce conflict and the uncertainty associated with court proceedings.

What if there has been domestic abuse?

If domestic abuse has been a feature of the relationship, your circumstances may require a different approach and possible protective measures. You should seek legal advice as soon as possible if you are concerned about your safety or the safety of your children. You do not have to negotiate directly with your former partner if doing so would put you at risk.

Depending on the circumstances, there may be legal remedies available to protect you and your children. If you are in immediate danger, contact Police Scotland or the emergency services.

What should you do next?

Every separation is different, but taking the following steps can help:

Take legal advice: Understanding your rights before making major decisions can prevent problems later.
Record the date of separation: The date can be important for divorce and financial matters. It is particularly important for unmarried couples because of the one-year time limit for certain financial claims.
Gather financial information: Keep records of property, bank accounts, savings, investments, pensions, debts and other significant assets.
Make arrangements for your children: Agree a practical routine which provides stability and takes account of their needs.
Avoid major financial decisions without advice: Selling property, transferring assets, withdrawing substantial savings or taking on significant new debts can affect your eventual financial position.
Consider formalising an agreement: If you have reached agreement about your finances, a solicitor can advise whether it should be recorded in a formal Minute of Agreement.

How a Scottish family solicitor can help

Separation can involve difficult decisions about your home, money, children and your future.

You do not necessarily have to go to court, and many separating couples are able to resolve matters through negotiation or another form of alternative dispute resolution. However, it is important to understand your legal position before making decisions or entering into an agreement.

A Scottish family law solicitor can advise you about your individual circumstances, explain your rights and options, and help you work towards an arrangement that provides greater certainty for you and your family.

If your relationship has broken down, obtaining legal advice at an early stage can help you understand what happens next and avoid unnecessary problems later.

If you would like to discuss your situation confidentially, please get in touch. For tailored legal guidance, please contact our experienced Family Law solicitors on 01259 723 201 or email help@randa-fa.co.uk and we would be delighted to assist.

Disclaimer

This article is intended as general information only and should not be relied upon as legal advice. Every family situation is different and the way Scottish law applies will depend on the particular facts of your case.