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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12173
Experience:  30 years as a practising solicitor.
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I am looking in a mutual separation with my wife.

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Hi I am looking for advice in a mutual separation with my wife. Problem is my wife expects me to leave the family home and continue to pay half the mortgage as well as maintenance for my 11 year old son. I don't believe it is right that after paying 11 years of a mortgage I need to leave without any settlement never mind continue to pay half the mortgage of a home I shall no longer be living in. Can you advise please.
Thank you for your question.
The normal type of separation is that each party is entitled to half of everything acquired during the course of the marriage. What you wife is suggesting is contrary to the clean break principal that is preferred under Scots law.
It would mean that you would maintain your interest in the home but wouldn't realise your investment until a later stage.
The more normal situation is that one or other of you would buy the other out or the house would be sold. All other assets and liabilities would be divided.
That does not of course affect your liability to pay child maintenance which is a separate obligation entirely.
Happy to discuss.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

Hi many thanks for getting back to me. Since I being in touch I think my wife has contacted a solicitor and has now changed her tune saying that we shall both just have to live separate lives in the house together until our son reaches 16 years of age. I am not able/willing to do that living in that kind of atmosphere. My wife has advised that she can't/won't buy me out so I have offered to buy her out but she says she is not leaving the family home thus bringing us to a stalemate. What are my options now? I am asking for no more than I am entitled to yet my wife is claiming she can live a separate life under the same roof yet I do not think this is an option nor will it work.

Your remedy would be to ask the court to grant an order selling the house as part of the divorce action. If your wife has seen a solicitor you would be better to do the same. The court has to take account of the property accrued by the parties and ensure that each receives a fair division.
Unless there is a specific reason that the house should not be sold until your son reaches the age of 16, eg, for education or health reasons, your wife's suggestion would appear unrealistic if there is money tied up in the house.
Customer: replied 2 years ago.

But what grounds would I apply for a divorce for? Do we not have to be living apart for a length of time? Neither party has been unfaithful we have just reached the end. My wife is not willing to buy me out nor allow me to buy her out and has now advised me that we will just have to live together but not speak which I am not willing to do and is no good for the children or myself. I feel as though we are at a stalemate and I am being made to suffer. I only want what I am due and no more to set up a home on my own or buy her out and she can set up a new family home.

Your options for a divorce action at an immediate one if you can establish that your wife's behaviour has been unreasonable. Alternatively, you would have to wait until you have been separated for two years.
If you weren't married a straightforward application to the court for a sale of the property would be possible. This would be a competent action for you as well although I have my doubts the court would entertain it separately from a divorce action.
Customer: replied 2 years ago.

Do we have to then officially apply for a separation notice with the courts and then after 2 years can file for divorce and sort out all the financial dealings. I think my wife has also been given this advice and has decide to dig her heels in and now going to make my life hell at home and try to force me to leave the family home.

No you don't file a separation notice. You simply note the date that you stopped living together as husband and wife.
Note that if your wife makes your life "hell at home" as you describe you will have immediate grounds for divorce on grounds of her unreasonable behaviour.
Customer: replied 2 years ago.

Final question here. So what advice would you give me in my current situation? Knowing the history and my wife not willing to budge.

I would instruct a solicitor to write to your wife and then engage with her lawyer to try to force a settlement.
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