Separation and Divorce – Pitfalls and Preparation
It’s a grim statistic that more relationships fail than succeed. I am not a social scientist, but I do know as a solicitor that whatever the causes, the process can be made more – or less – difficult depending on how it is approached and then conducted.
There is a joke which goes along the lines of “Excuse me, how do I get to …?” to which the answer is “Well sir, I wouldn’t start from here.” It is the same with marriage, civil partnership and cohabitation. People in love fall into living together thinking, hoping, assuming all will be well, and they will only be parted by death. But when it all breaks down, one or both wanting to extricate themselves from the home they bought or rented together, lack of knowledge and failure to prepare will bite hard.
I am not proposing that couples intending to set up together go to classes in family law. Well, maybe I am. There ought to be nothing wrong in with asking questions ahead of time, such as:
Who will get the house if we split up?
Will I get to see the children if I leave home to stop constant arguing?
Will I have to give up part of my pension on separations – it’s in my name alone?
Will he/she have to pay me maintenance if I move out/stay here?
Can I be forced to sell the house?
If he goes off with someone else does he forfeit any claim on me?
How much will it cost me in legal fees if we break up?
(Note, the answers are: 1. If owned together, either joint owner can force a sale or be bought out. 2. Yes. 3. Yes, you have to share the portion that covers the growth over period for the date of marriage to the date of separation 4. Probably unless it is manifestly unfair as your own income is enough 5. Yes, though you might be able to delay it if you are looking after children 6. No – our law separates the causes of breakup and the financial considerations 7. There is not one-size-fits-all. Your solicitor will cost the work out based on your situation.)
And lots more. But in the absence of knowing the law in detail on the way in, it is important to find out the rules that apply to your situation (which will undoubtedly be different from every other situation no matter what friends tell you based on their experience or hearsay) on matters of property, capital, maintenance, children. How best to do that?
For sure the internet has an ocean of information. But like all other aspects of the worldwide web of knowledge, it needs to be treated with care. Search “family breakup law” or suchlike, and among the pages and pages of links and websites, you can bet that the overwhelming majority will not be about Scottish law. A UK search will bring up English law sites and firms. The law in the jurisdictions of the United Kingdom are all different. The procedures are also different – in England and Wales the divorce comes first and then an ex-couple negotiate or fight over the money. In Scotland it’s the opposite. So at very least check that the advice or illustrations shown are from a Scottish law firm, agency or website.
I can put a pitch in for the legal profession here. The best way to get preliminary advice – before or while talking with a partner about separation – is to make an appointment with a solicitor. That meeting and discussion are confidential, and you can be as open as you need or want and ask the unpalatable questions. Even if the answers are not reassuring, they will be correct, and better to know all scenarios, including the worst, before starting a formal process or taking a big step.
The solicitor will not just describe the law, but will deal with any misconceptions and assumptions you may have, and there are often quite a few, so you don’t take matters too far down the wrong road. He/she will also work through explanations of HOW to proceed. Not all separations end up in a contested court action. Actually very few do. Part of the legal role is to damp down disagreement where it can be avoided, and help find common ground to get a deal done that his or her client can walk away from with at least a degree of contentment.
On that note, managing expectations is also a skill. An experienced solicitor will not strap on a set of guns and a flamethrower demanding to know where the enemy is at. He/she will not only work out the legals, but talk to the client about hopes and fears, priorities and bottom lines, but also ask about the soon-to-be ex-partner, to get a holistic picture of what has been happening and what the client wants to happen in future. That’s important because a separation or divorce is not just about leaving a bad situation, it is also about moving forward, into a new setup – especially where children are involved – that can be healthy and manageable for everyone.
Fundamentally Scottish law talks about division of assets being fair, and arrangements for children being in the children’s best interests. No legal system is perfect, but ours is geared towards a civilised and balanced outcome.
None of this is ever pleasant, but properly managed, the fallout and unhappiness can at least be reduced, and partners can eventually start to move on.