It is important for anyone considering taking final steps to end their marriage to be aware of how separation and divorce is regulated in Scotland.
When a married couple separates, the first exercise conducted by your solicitor is to identify what constitutes matrimonial property. Broadly speaking this is property acquired during the period of marriage or property used for the sole benefit of the marriage. Matrimonial property is likely to comprise of the matrimonial home, other property bought during the marriage, bank accounts, loans, pensions, cars, etc. There could also be matrimonial debt which must be included in the overall calculations. There are assets that are excluded from the ‘matrimonial pot’ such as gifts from third parties, inheritance or property acquired prior to marriage. Property acquired following the date of separation is not usually included within the ‘matrimonial pot’. Parties may have special circumstances to argue the value of certain assets should be excluded from the matrimonial property.
The division of matrimonial property, as well as care arrangements for any children of the relationship, including where they will reside and contact with the non-resident parent, are significant points that must be dealt with during a separation.
Before instructing a solicitor, you may have already reached an agreement with your ex-spouse on how to regulate the finances of the marriage and childcare arrangements. A very helpful tool in the family solicitor’s arsenal to do so is a Minute of Agreement. This is a legally binding document and when both parties have signed the Agreement, the finances and/or childcare arrangements will be regulated in line with the Agreement.
If a Minute of Agreement cannot be agreed between parties, then there may be no alternative but to seek court intervention and a Sheriff will determine how the matrimonial property is divided between parties. It is important to note that whilst there is recourse to the Sheriff Court, court action will be significantly more expensive than the negotiation of a Minute of Agreement.
Under Scots Law, you cannot divorce until the matrimonial property and finances have been dealt with either by agreement or by judicial determination. You must have grounds for divorce and the most common ground for divorce is that the marriage has broken down irretrievably. The more straightforward ways to prove this ground is either parties must have been separated for at least one year (with consent of the other party) or two years (without consent of the other party) before divorce can be granted.
Deciding to separate and/or divorce is a difficult time for all involved and it is a decision that should not be taken lightly. If you are thinking of taking steps towards separation and divorce, it is essential that you seek legal advice at the earliest opportunity. Contact our Court Department today and speak to our team who specialise in family law matters.