The Top 15 Questions We Are Asked By Separating Couples
We've prepared a list of the most common questions we recieve when dealing with divorce cases in Scotland.
1. How quickly can I get a divorce?
You need 3 things before you can apply for a divorce:
(a) Agreement with your partner with regard to any children under the age of16,
(b) No outstanding matrimonial finances to be sorted out.
(c) A ground for divorce. If all of these are met then you can be divorced in a matter of weeks.
2. Do I need a divorce?
Simply put, there are few advantages to a divorce apart from being able to remarry. When parties separate, they often come in and ask for a divorce. Well, do you need a divorce? Only if you want to remarry. The finances relative to a relationship are more commonly dealt with by way of a separation agreement. A separation agreement is a contract entered into between the parties that gives them both financial independence. The agreement can deal with the family home, bank accounts, shares, pensions and credit cards together with any support money required and even child access. Usually parties enter into an agreement and then wait for a ground for divorce. The most commonly used grounds are 12 months post separation with the other party’s consent or 24 months post separation without the other party’s consent.
3. How much does a divorce cost?
The divorce in itself can be inexpensive and quick but what is expensive is the time it takes to reach settlement with regards to the children and/or the finances. As couples fail to reach agreement and if the court ultimately needs to arbitrate on matters, then divorce can become expensive.
4. Can I get a divorce for a fixed price?
Yes, a fixed price divorce is an option. Ask your solicitor to agree a fixed price before instructing her/him.
5. Is my spouse due a share of my pension?
Pensions are considered matrimonial property. If a party builds up a pension during the period of marriage then that pension would be part of the matrimonial assets. It requires to be valued after they separate and the other party who doesn’t have the pension is due a share of the increase in value of the pension from the date of marriage to the date of separation. If both parties have a pension then both pensions will need to be valued and if there is a difference in the relative values then a compensating payment will have to be made. The compensating payment can be a capital sum or a pension share depending on the circumstances. A pension share, once implemented, will mean that the other party receives a separate pension, independent of the spouse’s pension, when they reach retirement age.
6. Do we need to split all of our assets when we separate or divorce?
The matrimonial assets are the assets accrued generally after the date one is married and before the parties separate. These assets are all valued and their value totaled and then the debts built up after the date of marriage and before the date of separation are deducted. This is defined as the net matrimonial assets. Each asset thereafter doesn’t need to be split. What usually happens is that, if possible, the parties retain the respective assets in their name and the party who has the lesser amount receive a balancing payment from the other party.
7. Do we need to sell the family home and can I be forced out?
There is a difference on the answer to this question depending on whether or not the parties are married. If they are married then both parties have occupancy rights to the family home irrespective of whose name is on the title. If the parties are cohabiting however then the party whose name is on the title will have to apply to the court to gain occupancy rights. Without a ground for divorce then either spouse will have a period of 2 years to continue living in the property. After 2 years one of the parties can force the issue and apply for a divorce on the grounds of being separated in excess of 2 years and this will start the process whereby the court may decide if the house is to be sold. Even after the 2 years is up however and one party has applied to the court, matters may still take many months to resolve before the house is to be sold, if at all, depending on the decision of the sheriff.
8. Do I need to sell my car?
Car ownership is different from being the registered keeper of a car. A registered keeper, i.e. the person named on the DVLA V5 certificate does not denote ownership. It is a matter of fact who owns the car. Who signed the sales agreement and who paid for the car? Is there a credit agreement associated with the car and if so, what type of agreement is it? If it is a hire purchase agreement then the car will be owned by the credit company. What was the intention of the parties? Was it a gift? All of these factors will determine who owns the car.
9. Who do the children live with after we separate?
In Scotland the position for children born sine 2006 is the same whether or not the parties are married as long as the father’s name is on the birth certificate. In these cases, a married mother or father and an unmarried mother and father have the same rights. The rights and responsibilities of both parents are the same. In practical terms if a father refuses to return a child to the mother the only course of redress is for the mother to apply to the court for an order to regulate matters and likewise if a mother refuses the father contact with the child then the father has to apply to the court for an order to regulate matters. There is no difference based on the sex of the parent.
10. Do I need to keep paying the mortgage after I leave the family home?
A mortgage is a debt payable by the person named on the papers signed at the time it was taken out. This may be one party or both parties. If only one party has taken out the mortgage then it is only that party that the lender can sue if the mortgage remains unpaid and ultimately the lender can then force the sale of the house. If both parties enter into the mortgage then the lender can sue either or both parties to collect any sums owned and again force the sale of the house. The mortgage payments may still however be taken into account when splitting the matrimonial assets. If one party keeps paying the mortgage after separation then he or she may seek to recover half of those mortgage payments back from the other party when considering a fair division of the matrimonial assets.
11. Are the matrimonial assets split 50/50?
The current legislation doesn’t state that the assets are split equally it states that there should be a fair split of the assets. A fair split of the assets is an equal split unless there are special circumstances. There are 5 special circumstances listed in the current legislation, a. an agreement between the parties such as a prenup, b. the source of where any funds came from and this could be savings a party had before marriage, c. any destruction, dissipation or alienation of assets by one party and this could relate to such matters as gambling by one party whereby they have used a lot of funds or assets to funds the addiction and therefore reduced the level of matrimonial assets, d. the nature of the matrimonial property or use made of it e. expenses incurred by either party in relation to the divorce.
12. Can I keep my wedding ring?
Gifts from third parties are not included in the definition of matrimonial property and therefore do not need to be considered. However, gifts to either of the parties are included therefore a wedding and/or an engagement ring would be included in the definition of matrimonial property. In practical terms these matters are not normally valued and split, parties usually agree to retain their respective rings.
13. I am due an inheritance from a relative is my partner due a share of this?
Inheritance is not included in the definition of matrimonial property and therefore is not included, therefore whatever is inherited cannot be claimed by a separating partner. However, one must be careful because if you inherit a sum of money, whilst that money is excluded, if you buy a car with the money, the car becomes a matrimonial asset. The safest thing to do with inherited funds is to retain them in the form you received them.
14. What happens to the family pet?
Family pets can cause arguments. A bit like with a car (sorry animal lovers) one must ask the question, who owns the pet? Who bought it and when and what was the intention? If you own the pet, you keep the pet but matters are rarely that simple. Many bitter augments can arise over family pets at separation.
15. Am I liable for my partner’s credit card?
A credit card is a debt like a mortgage but one that isn’t secured over a home. A credit card debt is payable by the party who signed up for the card. You may be an additional card holder but the additional card holder won’t be liable for payment of the debt. The named party who receives the statement will need to pay the monthly payments and if they stop the credit card company will only pursue the card holder for the debt. The credit card is likely to be matrimonial debt however to be taken into account when working out the net matrimonial assets, if it was taken out after the date of marriage and before the date of separation.