replied 4 years ago.
Thank you for your question.
You haven't given me any specific details but in general terms in all cases involving the separation of a husband and wife, it is usual to attempt to negotiate a settlement rather than have the court adjudicate on issues of financial provision. The main reason for this is economic; litigation is more expensive than reaching an out of court settlement. In any event, before you can proceed to a divorce you need to have resolved all financial matters, as after you are divorced you cannot make any financial claims. Therefore it is a front loaded procedure where you agree financial matters before divorce. If you can't agree these you risk having a defended court action and the associated costs.
You do not need to do anything to establish a separation. Separation is a factual matter and effectively it is when you stop living together as husband and wife. Normally the date of separation is when you physically part but it does not have to be and you could be legally separated albeit still living under the same roof. The date of separation, in Scots Law, is important because of two things: firstly, it can be the starting point for the one or two year period of separation that may be required for a divorce, which I will explain later. It is also important for financial reasons as any property or assets (or debts) acquired post-separation are not classed as matrimonial property and again I will refer to that later.
Maintenance for children
One of the first things that concern people when they separate is how they are going to financially support themselves and their children. Maintenance for children under the age of 18 can be agreed between the parents without having to involve any outside agencies. However, if agreement cannot be reached, then it is necessary to apply to the CSA and not the court. Broadly speaking the amount of maintenance which would be assessed by the CSA for one child under the age of 18 would be 15% of the absent parent’s net income (i.e. after tax, national insurance and pension payments). This can vary depending on other factors, for example, the number of days per week the child spends with the absent parent.
In the absence of agreement between parent and child, a claim for financial support for a child between 18 and 25 years who is still in full time education or training is made by the child through the court as opposed to through the Child Support Agency.
Maintenance for spouses
As far as maintenance from one spouse to another is concerned, for as long as parties are married there is a potential liability for one spouse to maintain the other. Again, this can be a matter of agreement between the couple themselves; however, if agreement cannot be reached then an application has to be made to the court.
The court does not apply a formula like the Child Support Agency but rather will take into account the resources and the earning capacity of both parties along with their needs and requirements. In the period after a separation, finances can be very uncertain because people are not sure where they are to be living. The courts will make an award if appropriate and this is a matter that depends on your particular circumstances.
Sometimes people come to arrangements whereby one spouse will pay certain bills in relation to the household as part of the maintenance and whilst this may be suitable in the short term, it is not an ideal solution in the longer term. It is therefore preferable to try to arrive at a fixed, regular payment so both parties have control over what money is being spent. It also helps the parties to become financially independent of each other.
Maintenance after divorce
Even after divorce, there may be an obligation for you to provide maintenance for your ex wife for a time. This is known as periodical allowance. Where one party has been dependent on the financial support of the other and requires time to adjust, the obligation will usually last for a maximum of 3 years after divorce. Alternatively, where one party will suffer serious financial hardship upon divorce, financial provision may be awarded to relieve them of their hardship. There is no hard and fast rule as to the length of time that provision will have to be sustained, but it has to be for a reasonable period according to the parties' circumstances. There can also be an obligation to provide for sharing the economic burden of caring for a child until he is 16 which can be reflected in the amount of a periodical allowance payment. Periodical allowance may be reduced, or eliminated from the calculation altogether, if there are sufficient capital resources available.
Division of assets and liabilities
The rules regarding the division of matrimonial assets and liabilities have been in existence since the commencement of the Family Law (Scotland) Act 1985. What is important to bear in mind is that this is only a framework. Every case is unique and has its own set of circumstances and, ultimately, anything and everything potentially could be argued. There is no black and white formula which applies to every case.
What the Act does do is put in place a “clean break” principle whereby both parties to the marriage take a fair share of the matrimonial assets and liabilities and then get on with their respective lives post-divorce.
There are two stages to go through. The first stage is to gather information as to what there is by way of matrimonial assets and liabilities (i.e. who owns what, what is it worth, who owes what and how much?). Once this has been agreed (or as much as possible agreed) the second stage is to then decide how these are to be divided fairly and what is actually going to happen to each of these assets and liabilities.
Matrimonial assets are all assets that have been acquired from the date of marriage up to the date of separation. There are 2 exceptions to this, if a house was bought before the marriage with the intention of it being the family home then it would still be classed a matrimonial asset. The other exception to this general rule is that any gifts or inheritances from a third party to the husband or wife during the course of the marriage are not classed as matrimonial assets. This is an area that can get quite complicated because very often what is gifted or inherited is money which is then used for a variety of purposes. There is then a question of whether that money can be traced. You should be aware that in these cases assets can be treated in a different way and each case has to be looked at individually.
All assets and liabilities acquired during this period are classed as matrimonial, even if they are just in one person's name. Generally these assets and liabilities will be valued at the date of separation.
As you can imagine there may be some assets that have increased in value from the date of separation to the date of divorce. Generally speaking, if that asset is owned by one of the parties, then any increase in the value will be ignored and its value at the date of separation will apply. If it is jointly owned then that may be different.
The law provides that assets and liabilities are to be divided fairly between the parties. What does fairly mean? The starting off point in law is that marriage is a joint venture between two people and so the fairest way would be to divide everything equally. It is important to bear in mind that the law does not say that the parties are entitled to an equal share of matrimonial assets and liabilities. It is true to say that nine times out of ten they may be divided equally but not always. You may have what is known as a special circumstance for a non 50/50 split of either one particular asset or the whole pool of assets.
The Act lists some examples of what could be special circumstances. For example it may be argued that by giving up a career to have children is a special circumstance. You can look at the source of funds used to acquire any of the matrimonial property where those funds or assets were not derived from either of your incomes during the course of the marriage. You could look at the nature of the matrimonial property and the extent to which it could be divided or used as security. There could therefore be a number of special circumstances but whether any of them are strong enough to influence a departure from the normal 50/50 split of assets depends on the circumstances of your case and whether your spouse or ultimately the court agrees with you. Every case is unique.
Once you have decided to divide everything you would then try and reach an agreement on who is to get what. Sometimes this involves the transfer of houses, giving up a share of your pensions or the payment of a capital sum.
There is a lot of flexibility in the distribution of assets; pensions can be split (which can be particularly useful if one of the spouses has a large pension entitlement), property can be transferred (such as the matrimonial home from one spouse to the other). There is therefore a variety of different ways in which a solution might be worked out for the division of matrimonial assets and liabilities. It is possible for the court to make these orders as well in disputed cases.
It should be noted that, even once it has been decided who will get what assets after the separation, there is still a possibility that one spouse may seek maintenance after a divorce.
Once an agreement is negotiated on all the various issues we can prepare a Separation Agreement which sets out what has been agreed and a timetable for what is to be put in place. A Separation Agreement is binding on you both and is formally registered as such.
An undefended divorce can then proceed in the court. Whilst there were changes made to Scots Law in May 2006, it is still the case that the only ground on which you can get a divorce is if you can establish that the marriage has broken down irretrievably. You can prove irretrievable breakdown in one of four ways.
1.Unreasonable behaviour. If you can establish that your spouse's behaviour has been unreasonable to you then you can apply for a divorce immediately. You would have to provide evidence from someone other than just yourself, for example from family or friends. Unreasonable behaviour does not necessarily mean physical abuse.
2.Adultery. If you are able to prove adultery, then you can again apply for a divorce immediately. If however, you have known that your spouse has committed adultery and you continue to live with them for more than three months then you will be deemed to have condoned that adultery and cannot then divorce them on these grounds.
3.Separation with consent. If you have been living apart from your spouse for a year and they are prepared to consent to divorce proceedings, then you can now get a divorce
4.Separation Two Years. If you have been living apart from your spouse for two years, you can proceed with a divorce without requiring your Spouse's consent.
Generally, if you have managed to reach agreement in respect of all other issues, then the divorce would in all likelihood proceed on ground 3 above. If both children are above the age of 16 at this stage, then the divorce can proceed by way of simplified procedure or “quickie” divorce, which is generally no more than a form filling exercise. Such a divorce is granted in a matter of weeks.
If a child is over 16 years or if there is going to be a dispute on either financial claims or issues in relation to the children or indeed the divorce itself, then the costs will be different and can be quite significant. Ultimately the proceedings could last up to a year, possibly longer, and may involve you having to come to court along with any witnesses to give evidence.
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