The guiding principle relating to financial settlements is that matrimonial property should be shared equally. For the most part, this will mean equally but on occasion, a disproportionate split can be justified – for example, where the origin of any assets may so determine or, in certain circumstances, where children may be involved. Awards of ongoing maintenance from one party to another can still be made but are relatively unusual and would only be made in fairly limited scenarios.
The law relating to divorce and separation is constantly changing as modern lifestyles evolve. Current legislation allows divorce to be granted where a marriage has broken down due to unreasonable behaviour, adultery, one year of continuous separation where both parties are in agreement or two years of separation where one of the parties does not consent. Generally, divorce will only be granted by the courts when all financial issues are resolved. The courts tend only to intervene in such financial matters where the parties have been unable to agree on terms themselves.
We can advise on the appropriate dissolution procedure and the grounds on which an application can be made to the court. We can guide you through each step, acting on your behalf to negotiate with your ex-partner and their solicitor to reach an agreement that protects your position and that of your family.
It is often advisable for prospective cohabitees to seek legal advice before moving in together. Cohabitation contracts are becoming increasingly common – these are agreements which deal with the parties` respective rights and obligations relating to financial matters and assets.
Cohabitation & Separation
Cohabitees who subsequently separate have a measure of protection under the Family Law (Scotland) Act 2006 but these rights are substantially diluted from similar rights that married couples enjoy. The law is still fairly undeveloped in this area so proper advice at the earliest opportunity is required. Cohabitees may also make a claim on the death of a partner where no will has been left. Such claims are subject to stringent time bars and every case will be assessed very much on individual merits. Once again, proper advice should be sought.
Children do sometimes become embroiled in their parents` disputes on separation. They also have rights and the legal position is that children`s views must now be taken into account when deciding any substantive matter which may affect them. Many children do also seek legal representation themselves these days.