Many clients are unsure about separation and divorce, particularly the terms, the concepts and the rights and responsibilities of both parties. It is particularly difficult when matters are sensitive or contentious. Taking early advice from a solicitor is highly recommended. 

Some frequently asked questions about separation and divorce are below:

“Am I just separated, or separating?”

You do not need to move out of the marital home in order to be classed as "separated" under Scots law. Married people have a right to remain in their home following a split, regardless of whether or not they are named on the title deeds or lease to that home. These are known as occupancy rights.

“Can I force my partner to leave the house?”

Only a court order can force a person to leave against their will. If one partner is abusive towards their spouse, special preventative court orders known as interdicts or exclusion orders can be sought, potentially ejecting the abusive partner from the home - even if the abusive partner owns the home or is named on the lease.

“What does "separation" actually mean?”

Separation is defined as when you are no longer living together as husband and wife.  You can still be in the same house but be in a state of separation. The most obvious example of this would be if a couple were no longer sharing a bed, but it can also include no longer socialising as a couple and openly treating themselves as separated in social, family or professional circles. Often people will have actually been separated in the eyes of the law for a lot longer than they think and this can have significant bearing on any subsequent divorce case or financial settlement. Of course, separation also occurs when one person simply moves out of the home and the couple no longer have sexual relations.

“Why is the date of separation so important?”

The date of separation (or "the relevant date") is the “line in the sand” that the law draws for determining the value of financial assets and liabilities, so this can be a key factor in whether or not a person will achieve the best settlement they can. There may be a dispute between the parties as to when they actually separated, purely for the tactical reason that the date often affects the financial settlement.

To give an extreme example, if one person purchases a lottery ticket and wins the jackpot the day after the date of separation, then all of the winnings are excluded from their ex-partner's claim. But if their partner can successfully establish that they actually separated after that date, then they could claim a share.

“Do we have to go to court?”

It is possible to enter into a private separation agreement with your ex-partner if you both agree. Such agreements are the most common way of resolving the financial and property aspects of separations and allow the parties to keep well away from the divorce courts. Typically, they are much cheaper than going all the way to a full court hearing and are generally thought to create less long-lasting bitterness between the parties. When there are children involved in a separation, avoiding antagonism is an important factor for many parents.

“What is a separation agreement?”

A separation agreement is a legally binding contract, agreed on and signed by both parties on a voluntary basis, to resolve the issues surrounding a separation.

Separation agreements are usually drafted by solicitors. Although this is technically not required, in our experience matters are a lot easier if both parties have their own solicitor to assist them in negotiations. Aside from the solicitor’s experience in drafting such agreements, having a solicitor involved also prevents the risk of the parties getting sidetracked into emotional or legally irrelevant issues between themselves. It also makes the agreement safer from challenge at a later date and so helps to cement the full and final settlement that separation agreements typically aim to achieve.

A solicitor cannot act for both parties in a separation agreement. If only one person has a solicitor involved, experience and common sense tells us that they will get the best information, the best tactical advice and ultimately the best deal.  Should one party choose to "save money" on legal expenses, then they do so at their own risk and, very probably, cost.

“What happens after we sign the separation agreement?”

If all matters can be agreed, the parties need not bother with a disputed court action at all, instead obtaining a cheap and easy simplified divorce. No appearance in court is usually needed - it is basically a form-filling exercise rather than a court battle and is, unsurpisingly, the most desirable way to conclude matters once the finances have been agreed.

Simplified divorces are not available for couples with a child under 16. However, there is a relatively straightforward process for couples with a child under 16 who do not have any outstanding disputes and this is also seen as the most desirable way to conclude matters for them after a separation agreement has been reached.

In practice, many people simply sign separation agreements and wait years before actually bothering to apply for divorce, if at all. However this can backfire so it always best to consider that issue carefully.

“What financial issues need to be resolved and what has blame for the split got to do with it?”

The law allows a person to seek a financial settlement from their partner following a split. A court can make orders if necessary using a catalogue of complex rules laid out in legislation and developing case law in the courts.

One of the most important points that many people do not seem to realise is that the law does not make a link between who was to blame for the split and how the assets should be divided. It is completely irrelevant and is only important in issues relating to the actual grounds for divorce and, potentially, decisions relating to child residence and contact issues.

Every case is different, but basically the law requires all assets and liabilities acquired from the date of marriage until the date of separation to be valued and subject to some form of division between the parties. But in certain circumstances properties bought before the marriage can still become part of the calculation. Some assets and liabilties are or can be potentially excluded from this calculation, such as gifts individually received or individual inheritance proceeds. Sometimes if one person in a marriage has been reckless or dishonest with money or assets through (for example) gambling, alcoholism, secret spending on "paramours" (people they are having an affair with) or other inappropriate expenditure, then any effect that has had on the value of the assets of the marriage can be offset in favour of the other person. This is one of the rare examples of the law attaching blame to financial division in divorce situations. 

“What sort of financial orders can the court make in a divorce action?”

There are a number of different orders which a court can make. The most common are:

Capital Sum

Apart from actually dissolving the marriage, the court can grant an order for a capital sum to be paid by one party to the other. This is usually meant as a "clean break" single payment, to allow the recipient to have a “nest egg” for the future so that they can live without their partner's support. It can also be awarded as compensation for losing ownership of a house previously owned jointly between both parties. (In other words, one person gets the house and the other gets paid cash instead.)

Transfer of Property

The court can order a house to be transferred from one party's name into the other - either transferring complete ownership from one to the other or awarding one party's joint share to the other, creating one single owner. In practical terms, this is often desirable when the person getting the house is also looking after the children of the marriage, who the court may not wish to require to move house and therefore possibly schools, neighbourhoods and social routines. Of course, sometimes the parties themselves will agree this in advance anyway and financial disputes may be in other areas.

Pension Rights

A pension can be transferred by the court in whole or part, or may be ordered by the court to be

shared in whole or part between the parties. This is often a very valuable asset and particularly good pensions are possibly more lucrative assets than houses.

A spouse can claim a share of their spouse's pension based on the value of that pension from the date of marriage to the date of separation. Accordingly, even if a pension was started up before a marriage, it can still be subject to a claim based on the value of the pension accrued during the marriage. Clearly, couples who know that one of them has a particularly good and secure pension may not choose to save money as prudently as they might have done and so when there is a split the person who does not personally own that pension needs to seriously consider making a claim on a share of the pension. Even if the pension is years away from being paid out, the court can still make orders requiring a cash payment to be made by the pension holder to their spouse in recognition of the value of the pension or can order the pension administrator to split the pension and pay out accordingly in the future. The court can also make a pension sharing order, requiring part of the actual pension payments to be made to the spouse when the pension actually starts to pay out. 

Aliment

The court can also award aliment, often referred to as alimony (much to the annoyance of Scots lawyers, who fight off the terminology of American courtroom dramas and English legal news stories on a daily basis!) Aliment is basically a maintenance payment designed to provide the spouse with a lower income with a reasonable standard of living. Such awards are typically made right at the beginning of a divorce action or even long before that in a separate action, so that the lower earning spouse can have some income stability until the final settlement has been agreed or imposed by the court.

Periodic Allowance

Aliment generally stops once divorce has actually been granted. If a court wishes to make a post-divorce award for maintenance to allow one spouse to "get back on their feet" following a severance of financial support from their ex-spouse, the court may award periodical allowance for up to three years after the divorce. This is thought appropriate when one spouse has given up a career to look after children.

There is some division of opinion as to whether or not periodical allowance has a place in the 21st century, as it is hard to avoid the conclusion that it is really a "housewife's remedy". Many judges tend to decide against it and instead rely on capital sum payments to create the much sought after "clean break". Aliment and periodical allowance are payable by the other spouse and the court has to take into account the financial resources and requirements of the paying spouse as well as consider whether the spouse claiming aliment or periodical allowance has taken reasonable steps to manage their own expenditure and maximise their own independent income.

“Can my husband or wife really "take me to the cleaners"?”

Possibly. The courts have discretion on how to divide the assets and debts, although a guiding principle is that settlement orders made by the court have to be fair and reasonable. Unfortunately the law's reliance on courts using discretion based on "fairness" and "reasonableness" creates a significant degree of uncertainty because two different judges could easily regard two completely different decisions as still within the ambit of reason and fairness. The law is not an exact science and the legislation only really provides a framework for parties to resolve their differences.

Unfortunately, it is entirely possible for a person to mismanage their divorce or separation so badly that they are indeed "taken to the cleaners" and so it is important to recognise the seriousness of the legal aspects and to approach the situation in as objective and rational a manner as possible. In order to get pragmatic, objective advice, it is important to talk to a solicitor.