Austin Lafferty’s Guide to Divorce and Separation in Scotland

Our guide to divorce and separation in Scotland aims to provide an introduction to the main areas of divorce law and other significant matters which affect most divorcing couples in Scotland.

Separation, divorce and fault of blame

Although it might be difficult to keep the ‘who did what’ and ‘whose fault it was’ out of the equation, the law rarely takes into account who has caused the breakup. There are very few separations/divorces in which the blame for the breakup needs to be determined for legal purposes when determining the financial separation agreements in Scotland. There may be a reason to discuss whose fault it was should a ‘fault’ reason for divorce be sought, but these cases are few and far between now that a year’s separation can be the basis of divorce by consent.

Final settlement and minute of agreement

In order to assist in a financial settlement, the solicitor for each spouse/partner needs to value the matrimonial property - which may seem a cold and calculating process, but is essential. Once there is a clear picture of what is owed by the spouses both singly and jointly then both parties will usually come together either physically or by correspondence between solicitors, and try to negotiate a settlement. This negotiated settlement, if successful, will result in a Minute of Agreement. This is a signed and registered document which ensures that the settlement is legally enforceable – and cannot later be changed by one party alone. Should the other party default on one of the agreed terms then you have the right to apply to the court to have that right enforced.

The Date of Separation and its relevance

The Date of Separation (referred to in law as the Relevant Date) is the date when the parties finally and actually separated. There doesn’t need to be any formal document confirming it. This is also the date when most matrimonial assets and debts are valued for separation/divorce purposes. It can sometimes be disputed by the parties especially if they have drifted apart over time rather than had a major fall-out. Whilst it is usually the date when one spouse leaves home, it sometimes occurs even though both start to live separately under the same roof.

The distinction between conduct and finance

The law is not interested in who is the “guilty” party in separation or divorce in Scotland, nor who has left home, who has gone off with someone else, or who has initiated the separation. Matters of finance, property and child care are treated almost wholly separately from conduct, and the principles of fair sharing of assets and debts do not allow for consideration of which party “deserves” the money more as the wronged spouse.

The matrimonial home

Both parties are entitled to remain in the house until the marriage is legally brought to an end. Even if the home is owned by one alone, the other is legally entitled to remain there with occupancy rights. Life within the home can become very difficult once the parties have decided to separate.

However, it does not mean one can force the other to leave. Should one of the parties decide to leave and live elsewhere then they will still be allowed to have access to the property (within reason). Even if one partner (say the sole owner of the house) was to attempt to sell the house while the other partner remains living there the purchaser cannot force the spouse to move out as the remaining spouse has enforceable occupancy rights, so it would be almost impossible for such a transaction even to get off the ground, and thus the threat of selling the house over the head of a spouse is an empty one.

Should there be an issue by one spouse on the other which would make it impossible for one of the parties to remain in the property, then exclusion orders can be sought to allow the under threat party to remain in the property – again no matter whose name the house is in. Although one spouse may move out they do still have a right to enter the property. This could only be countered if there was an interdict or exclusion order in place excluding one of the spouses. Similar rights exist now for unmarried cohabitees and civil partners.

Definition of matrimonial property

This is property which is owned by the parties in the marriage/civil partnership. However, to be taken into account the property must have been acquired after the date of marriage/civil partnership but before the date of separation. As is usual in the law there are some exceptions. Where one of the parties inherits either property or money during the marriage from another person such as their parents then this is not classed as Matrimonial property. The same can be said for a gift received from a third party e.g. a painting given to one of the spouses by their parents would not be classed as matrimonial property. However should the inherited or gifted item be money and the party then buys an item with it for use within the marriage e.g. a car, then the car becomes matrimonial property.

One further exception is where the property is acquired by one of the parties before the date of marriage / civil partnership but with the intent of it being a family home e.g. a flat is bought by one party before they get married but with the intention that they would move in after the wedding, then this is also classed as matrimonial property.

Matrimonial debt

Unlike matrimonial assets, these for some purposes remain with the individual who signed up for the debt originally. Joint debts such as mortgages are equally split between the two parties, however, there are some exceptions. For example, if the wife takes out a loan for the renovation of the family home bathroom, then although the debt is in one name, the loan was for the improvement of a matrimonial asset and the enjoyment of both parties, hence is matrimonial. Like the assets the debts required to be vouched. When it comes to negotiating a settlement, debts even in the name of one spouse alone are shared if the debt was for matrimonial purposes – holidays, home improvements, general housekeeping and more.

The process of vouching

All assets and liabilities i.e. property owned and debts owed by either party on their own or as a couple need to be vouched i.e. proved by documentation/valuation. If an asset is stated as being inherited some type of evidence will be required to show the other side that it was inherited i.e. a Will or a court certificate of Confirmation (probate) or perhaps a letter from the solicitor who wound up the deceased’s estate. Where a loan was taken out for a home improvement the loan application stating home improvement and/or receipts and invoices for tradesmen can be used to prove the status of the loan.

Fair division or fair share

All assets and liabilities i.e. property owned and debts owed by either party on their own or as a couple need to be vouched i.e. proved by documentation/valuation. If an asset is stated as being inherited some type of evidence will be required to show the other side that it was inherited i.e. a Will or a court certificate of Confirmation (probate) or perhaps a letter from the solicitor who wound up the deceased’s estate. Where a loan was taken out for a home improvement the loan application stating home improvement and/or receipts and invoices for tradesmen can be used to prove the status of the loan.

Unequal division 

There are many reasons why an equal division of the matrimonial property would be unfair and your solicitor will assess your circumstances to determine whether your set of circumstances would warrant the solicitor to argue for an unequal split in your favour. The other spouse/partner’s solicitor will of course probably try to argue against this or even for an unequal split in their client’s favour.

The following considerations may be taken into account:

  1. Has either spouse/partner been economically advantaged or disadvantaged by the marriage? The common scenario is when the woman has taken a break from her career to raise children. The courts now take this into account if relevant. In the main, the courts will look at the amount of disadvantage suffered by the individual and will calculate a one-off payment, which may for example take the form of transfer of the other spouse’s half of the property.
  2. If there are children under 16 years of age then one spouse may have the main burden for the day to day care of the children. The courts will look at transferring the property which allows the children to remain in their own home but may also look at a periodical allowance (regular maintenance for a limited period). Courts are not keen to have periodical allowances as this maintains the link between the parties and doesn’t follow the philosophy of the clean break. If a periodical allowance is agreed then this would normally only continue until the child reached the age of 16 years.
  3. Depending on the age of the disadvantaged spouse (often the woman) the courts may set up a periodical allowance for a short period (up to 3 years) which allows the spouse to retrain. This is specifically aimed at the older woman who has been at home for years and has very limited skills or experience to offer an employer. The allowance would help the spouse to retrain and gain employment.

There is a safety net set up by the law which catches any spouse who is going to suffer serious hardship but doesn’t fit into any of the above categories. This allows a periodical allowance for a reasonable time and is the only one which may continue indefinitely.

Children (where they live now and in the future)

**Please note that although you may be familiar with the words Custody and Access, some years ago these were replaced in Scottish law with the words Residence and Contact, which mean more or less the same things respectively.**

It is difficult not to involve any children in arguments. However, parents need to remember that there are two parents both of whom need to put their feelings to one side and make arrangements which take into account what is in the best interest of the child. Most couples separating can arrange and agree on the care of the children – where they will live and how often the non-resident parent will have contact. Such agreements are either made by the couple themselves or with the help of solicitors, or other mediators. Sometimes these arrangements are then set out in a minute of agreement such as described in earlier headings in this note. 

Should no agreement be reached and matters have to be resolved in court, then the court will not take into account just the parents’ views (though they may take into account negative or damaging conduct by parents should that be detrimental to what is in the best interests of the child). Depending on the age of the children their views may be taken into account. The older a child is, the more say he or she has in where he or she lives and how much contact with the other parent there is. Court cases involving child care often involve the use of independent court reporters ( often solicitors themselves) and/or social workers investigating the whole background of the case and the child’s life, which can be quite traumatic for children. it is always better to come to an amicable arrangement for the children either face to face or by asking your solicitor to negotiate the issue with the other party’s solicitor.

The arrangements made at the time of separation may very well require change as children get older and they start school or become teenagers and this can be built into the Minute of Agreement. Do remember that in law the contact with, or residence of, a child is not for the parent’s benefit but for the child’s.

Maintenance of spouse

Aliment or maintenance is the payment that arises out of the obligation to reasonably support a husband or wife and any children from the marriage. This support needs to be reasonable and takes into account the needs and resources of both parties, the earning capacity of the parties and any other relevant circumstances. It does not take conduct into account.

With regard to spousal maintenance, the courts are reluctant to grant periodical allowance as they feel that a clean break between couples and separating is preferable to having one party dependent financially on another even after divorce. They are more likely to make arrangements to transfer capital or some other asset. However in some circumstances (see above) a periodical allowance will be granted by the court or negotiated between the parties.

Maintenance of children

An agreement should be reached by negotiation for both financial support and living arrangements for any children of the marriage/partnership. However, an order can be sought from the court should an agreement not be reached. An order cannot be sought should the Child Support Agency be involved in the matter. The CSA website has an online calculator which allows a very rough guide to what should be paid by the absent parent. The payments are made until the child reaches the age of 18 (or 25 if still in full time education).

Reaching a negotiated agreement

When parties separate they may appoint solicitors (although some don’t). The solicitors act on each party’s behalf. It is not appropriate to have the same solicitor for both parties due to a conflict of interest. Initially, each party will value the matrimonial assets (including such assets as pensions and any businesses owned by either spouse) and liabilities (debts, loans, financial obligations owed) in their sole or joint names. The matrimonial home requires to be valued and a redemption figure for the mortgage obtained. This can take some considerable time especially when other agencies are involved.

Once both parties have a clear picture of the value of the assets and liabilities then they sit down with their solicitor and discuss how they wish to proceed, and whether there are any grounds for an unequal division. Once the solicitor has taken instructions then negotiations can commence. These may take the form of letters back and forward between solicitors and/or a meeting between the parties’ solicitors with or without the parties present. The best possible outcome is for an agreement to be reached by the parties, to avoid having to go to court. Once an agreement is reached then a Minute of Agreement is drafted by one of the solicitors which will then be passed between the solicitors until both sides have revised and negotiated, and are happy with its terms.

Time it takes to reach an agreement

This varies from case to case. Some parties can agree very quickly and therefore the process can take a few short months. However, for other parties, it may take months and even years to reach an agreement.

The Minute of Agreement

Once a final draft of the document detailing the terms agreed by the parties has been reached then both parties will be required to sign the document before witnesses (the solicitor can witness, and often does). It will then be sent to the public register called the Books of Council and Session in Edinburgh for registration and you will receive a copy for your records. This document is a record of both parties’ enforceable rights and should one party renege on any part of the agreement then the other one can have enforcement proceedings carried out on the strength of it.

Litigation (court action)

In some cases, parties will reach an impasse and it will require one party to raise a court action in the local Sheriff Court, or the Court of Session (the superior civil court of Scotland, which sits in Edinburgh) in order that the Sheriff makes a ruling and impose terms. This is an expensive and lengthy process which as well as increasing the cost and length of the process and increases the stress and disharmony between the parties.

If you still have any questions about the divorce and separation process in Scotland our team of experienced divorce solicitors are here to help. We have a highly experienced team who have dealt with all aspects of separation and divorce in Scotland. 

Contact us to find out more about the divorce and separation process in Scotland or read our common questions about divorce online today.

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