03 Mar 2017

The financial aspects of divorce and separation...

The financial aspects of divorce and separation...

Resolving the financial aspects of separation can be a daunting task, but the process can be made more manageable with expert legal advice.

Indeed, we would caution against making any significant decisions in relation to financial matters arising from separation without first taking legal advice, as doing so may be contrary to your interests and any steps taken may be difficult to redress. 

The Family Law (Scotland) Act 1985 provides a framework for Courts when making decisions relating to financial provision on divorce and dissolution of civil partnerships.

The overriding principle is that there should be a‘fair sharing’of the net value of matrimonial and partnership property.

Of course ‘fair’ can mean different things in different circumstances.  No two cases are the same and the financial issues will be different for every couple. 

Disclosure

A full disclosure of the financial picture and a clear understanding of the particular circumstances of the family are crucial when providing advice in relation to an overall settlement of the financial aspects of your case.

The vast majority of cases will be resolved out of court, either through traditional negotiation, mediation or collaborative family law, but the principles of the act are used for guidance in negotiations.  Most couples will try to negotiate the terms of a separation agreement.

Separation Agreements

A separation agreement is a written agreement between separating couples which can regulate a wide range of matters, including the care arrangements for children, child maintenance, payment of school fees, payment of bills, transfer or sale of property, the allocation of matrimonial assets / debts and regular financial support (spousal aliment / periodical allowance). 

Separation agreements are very commonly entered into in Scotland and are legally binding on the separating couple. The agreements are registered and they serve to extinguish all rights and claims available on divorce and death.

Orders for Financial Provision

Where it is not possible to reach agreement on the financial aspects of separation though negotiation, orders for financial provision can be sought through the courts in the context of a divorce action in terms of the Family Law (Scotland) Act 1985. 

Such orders will only be granted if they are considered to be ‘justified’ by the principles of fairness contained within the 1985 act and ‘reasonable’ having regard to resources. Such orders include:
  • An order for payment of a capital sum
  • An order for transfer of property
  • An order for payment of periodical allowance (ongoing financial support)
  • A pension sharing order
  • An order for the sale of property
  • An order regulating liability for outgoings in respect of the matrimonial home

Early expert family law advice is essential to ensure that you are fully informed prior to making decision which may have significant implications in the longer term.

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If you would like to speak to one of our family lawyers about your circumstances, click here.


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