Separation and Divorce can be an upsetting and confusing experience for everyone involved.  The process can be made far more manageable with tailored expert legal advice on the options available to you.

Please have a look through our pages on separation and divorce and if you would like to discuss further simply make contact with us. See more ..

• Divorce in Scotland – Helping to demystify the process of divorcing in Scotland
• Dissolution of Civil Partnership
• Finances – Dealing with your finances on divorce or dissolution
• What to expect? – Helpful advice on how to cope with divorce and dissolution.

Grounds for divorce

There is one ground for divorce in Scotland, that is, irretrievable breakdown of the marriage.  This is established by:

1. Unreasonable behavior; or
2. Adultery during the period of the marriage; or
3. Non-cohabitation for a period in excess of a year, with the consent of your spouse to divorce; or
4. Non-cohabitation for a period in excess of two years, regardless of their consent or otherwise.

Resolution of financial matters towards divorce

Under Scots Law, the financial aspects of separation must be resolved prior to Decree of Divorce being granted.  If parties are divorced prior to the resolution of financial matters between them, then the ability to make any prospective legal claims arising from their marriage will have been lost.

The prospective legal claims which can be sought are set out within the Family Law (Scotland) Act 1985.  This makes provision for the interpretation and approach that the Court may use when considering and determining the fair division of matrimonial property.  Divorce proceedings may be raised by either party to the marriage and within the Court for their local Sheriff Court.

In seeking to achieve a fair division of matrimonial property, the Court could grant the following orders:

• An Order for transfer or sale of the family home,
• An Order for a Pension Share,
• An Order for payment of a capital sum, either by way of a one off payment, deferred or by way of structured instalments,
• An Order for payment of periodical allowance, which is essentially a structured short-term financial payment to enable a party with a lower income to make reasonable adjustments following separation and adjust to that lower income at a more gradual pace.

Minute of agreement

You do not necessarily have to raise Divorce proceedings as a means of resolving any outstanding financial issues arising out of your separation.  Quite often people leave the question of divorce until a later point in time and instead focus their efforts on reaching a negotiated settlement which can be recorded and reflected in a Minute of Agreement (also known as a Separation Agreement).  It is commonplace for agreed arrangements surrounding the parties’ children to be recorded within a Minute of Agreement.

These agreements are intended to reflect the final position of the parties.  Even if you are able to agree on matters with your spouse, it is very important that what is agreed is recorded in a written Minute of Agreement.

It is very difficult to prove that a verbal agreement is binding in the event that there is a dispute about the terms of any such agreement in the future.

What is matrimonial property?

If proceedings for divorce were raised, the Court would be required to consider and regulate the division of the “Matrimonial Property”.  In a situation where we are negotiating towards a Minute of Agreement on your behalf, then we would also focus on the “Matrimonial Property”.

The starting point is that the matrimonial property should be divided fairly between the parties.  Unless there are good and sound justifications to the contrary, then “fair” is ordinarily taken to mean “equally”.  Matrimonial property consists of all assets acquired individually or jointly from the date upon which you were married until the date you separate (“the relevant date”) e.g. the family home, motor vehicles, savings and pensions.

Matrimonial debts are also taken into account in any negotiations.  Matrimonial debts are debts incurred either individually or jointly from the date of marriage until the date of separation.

When seeking to practically address and resolve financial issues arising from separation, a schedule of assets and debts and their values at the relevant date is usually negotiated and agreed.  This is undertaken with a view to ascertaining what arrangements need to be made in order to achieve a fair sharing.  There are arguments that can be advanced to justify a departure from the equal sharing principle.  Whether such arguments apply in your case will depend on all the circumstances and will be fully considered and explored with you.

To make an appointment with our lawyers based in Alloa and Falkirk, call us today on 01324 622 888 or complete our online enquiry form and let us see how we can help you.