Overview
Divorce and separation are highly emotional and sensitive topics, and it can be hard to navigate the steps to take when couples are suffering the effects of a relationship breakdown.In this episode the process both for married and cohabiting couples separating and the difference in both scenarios are discussed.
Austin explains the length of time a divorce is likely to take and the difference between consent (1 year) and no consent (2 years).
The reasons or grounds for divorce are explored namely unreasonable behaviour, adultery, desertion and separation – all important if there is no agreement and court action is likely.
We discuss why the ‘date of separation’ is such an important legal concept, what it means and why a separation agreement is advisable.
Austin then goes through the advice to clients of the process from drawing up a spreadsheet of assets to how pension share is calculated as well as what happens to the family home, children and pets!
Finally, why misbehaviour doesn’t have any impact on the fair division of assets and why it’s best to negotiate to keep costs down.
Meet the contributors
Austin Lafferty
Consultant Solicitor
Austin is married and has two adult children – one of whom is a solicitor in London. He has run many road races including several marathons, the most recent being London 2015, and has raised tens of thousands of pounds for various charities. His main sport is karate – he is now a fourth Dan black belt. Austin has also worked for many years as a professional artist, specialising in drawn and painted portraits – both human and animal!
Angela Roberts
Producer & Host
Before becoming a freelance producer, Angela has had a long and varied career at the BBC – first as a radio producer on live topical phone in shows on BBC Radio Scotland and Radio 5 Live where she met and worked with Austin, before producing radio features for BBC Radio Scotland and Radio 4. She then moved to Digital Learning at BBC Scotland working on campaigns such as A History of the World in 100 Objects, Commonwealth Class and BBC News School Report. She led Authors Live, a partnership project with Scottish Book Trust, producing live TV events on iplayer featuring children’s authors. Angela recently spent 6 months as senior content producer on daytime programmes on BBC Radio Scotland, working on the morning's phone-in programmes and entertainment in the afternoons with presenters including Stephen Jardine and Michelle McManus.
Transcript
Angela: Hello, and welcome back to It's The Law. Today, we're going to tackle one of the most difficult areas of law, maybe not difficult legally, but emotionally, one of the most difficult topics, and that's separation and divorce. And here to answer all the questions, again, I've got Austin Lafferty with me.
Austin: Thanks, Angela. We will talk about all the ins and outs of separation and divorce, which is, as you quite rightly say, legally, it's well-trodden. I mean, the principles and rules are pretty well known to certainly the legal profession, although sometimes they're a surprise to separating and divorcing couples.
But the real problem is the emotional side, the personal side, and indeed the practical side, because you have a home where it's maybe a couple of parents, a few children, everyone living a routine life, and then that has to change. People have to live elsewhere, money has to move, property has to be sold. So the logistics of it, as well as the emotional upheaval are terrible.
Angela: I think it's probably fair to say that trends have changed over the years, perhaps not as many people marry. Is that your experience?
Austin: Very much so. People have all sorts of ways of being together, and the old Scottish word of a bide in means a cohabitant or cohabitee, which is a Scottish usage of that. So living together has its own set of laws and rules, or sometimes the absence of laws and rules, because marriage, formal marriage, or indeed now civil partnership as well, has built-in protections for the spouses or the partners, and indeed the children, whereas living together and then breaking up, there can be much more of a vagueness about what is expected and what could happen.
If you're going into any relationship, whether it be a formal marriage or living together, you should plan ahead, and you and I have talked about prenups in the past in other podcasts. Although they're not very popular in Scotland, they are growing in popularity, and to me, the logic is absolutely unassailable. If you're going into something that you're uncertain about, and okay, you hope for the best till death do part, and you're in love and all of those things, but nobody knows what's going to happen in the future.
So you should plan ahead for the various scenarios.
“What if we break up? What if things go wrong?
And in cohabitation, it's even more important to do that because the law doesn't protect a leaving partner in the same way that it does with marriage.
Angela: What do you think are the most common reasons for spouses or cohabiting couples to separate?
Austin: I don't have any greater insight to that than the rest of us, but if you start with the law, the law traditionally provides various grounds of divorce. One is unreasonable behaviour, and that can be anything from just not talking to the other party, or keeping them short of money, or violence, or drunkenness, or some other misbehaviour. So unreasonable behaviour used to be the kind of catch-all for relationships ending.
Adultery is another one, and that is what it says in the tin. It is going away with some other person to the detriment of your promise to be faithful to your own spouse. There's desertion, which is, again, what it sounds like in the old days.
Angela: Sounds like the war.”
Austin: Yes. Well, there you are. Never a truer word spoken.
It means leaving without agreement or consent and living somewhere else for a period of time. And the periods have changed over the years. And the other main grounds traditionally were separation.
Separation, desertion are two things. Separation is where you both agree you're living apart because you don't want to be married anymore. And in the old days, it was five years separation.
You get a divorce even if the other spouse didn't agree. Or two years separation if you both agreed. And then over the years, that was frankly so wildly successful as a change in the law.
They made it easier so that if you live apart for two years, and one party either doesn't agree to divorce or refuses to cooperate or communicate, you can get a divorce without consent of the other. But in the vast majority of cases, the parties, whatever else they disagree about, they agree that they no longer want to be married. And if that's the case, then after one year of being separated, you can get a legal divorce from the courts.
And of course, what I've been talking about the grounds of divorce, these are the grounds of divorce for court action and court decree of divorce in Scotland. Separation and living separately are a kind of parallel thing. So it's not as if you have to have one of those grounds in order to separate.
You can just separate as you both agree to do so.
Angela: And before we get ahead of ourselves, I think that date of separation is quite important, isn't it?
Austin: It very much is. And it's date of separation, capital D, capital S. It is a legal concept.
Now, the date of separation is crucial for a number of reasons. The two main things are, we've talked about the period of separation, two years, one year. The period of separation starts on the date of separation.
And the other main thing is that that is when the accounting is done. For example, if one spouse has a pension that is going, occupational pension, then the other spouse's claim on it is on the value or increase in value up to the date of separation. But after that, they have no claim on any further increase in value of the pension.
And that's the same with all assets. But what sometimes clients are worried about or unsure about is, well, what does the date of separation mean? We've been living together, but in separate rooms, or we don't talk, and it's been really, you know, awful.
And assuming everything holds together legally, you can start the date of separation from the date at which, even if you're both living in the same house, you stopped living together as a normal husband and wife. And that may be cooperating with each other, communicating, maybe financially, you've kind of separated things out, maybe you sleep in separate rooms, or a combination of those things, so that it's clear to you as spouses that things have changed irretrievably. Now, the classic is one leaves the house and goes and lives in a flat or back to their parents or in a bed set or something, and that's a very obvious date of separation.
But the date of separation is a very important legal milestone and concept, and a lot of other things flow from that.
Angela: Okay, let's just get into the practicalities then.
So a couple, or it could be one half of a couple, has decided for whatever reason that they don't want to live with each other anymore. What is the first step in formalising this split and the relationship?
Angela: Well, you would expect me to see a lawyer, and I do say that for a couple of reasons, and it's not just job creation for the legal profession. People are expert in their own lives or their own jobs, or if they're an architect, they know all about architecture. People, generally speaking, know a bit about the law, but not enough.
So when it comes to separating, A, you don't want them to take a false step that will disadvantage them in any final settlement or case. Secondly, you don't want them to do something which they're not entitled to do. For example, freeze the other party out of a bank account, or take stuff out of the house and hide it, or leave the house with the children and not tell the children's other parent where they're going.
You know, there's a range of things that can be avoided by just knowing what your rights and duties are.
“So you go to see a lawyer and find one who does a first consultation without a charge. And many firms do that.
We do that. And that allows you in a private but expert environment to talk to a solicitor. And you may use that solicitor for what happens afterwards, or you may not.
There's no sales pitch as such on the part of the lawyer. But you ask the lawyer the questions, and indeed a lawyer, sometimes the clients themselves don't know the questions they want to ask. They've got an idea, but you as the solicitor, know this territory and start offering subject matter or heads of terms or advice or information that you're pretty sure they won't know.
And very quickly, you get a sense just from sitting down, and it's always best sitting down in the room rather than a Zoom call or emails or whatever. Initially, you want to see somebody face to face in private, not least because you can then express yourself in a way that you maybe even can't tell your family about or your children are too young or your friends. You don't want your friends to know everything.
You give the full, unexpurgated facts and the lawyer will tell you in broad terms initially what you're entitled to, what you should avoid doing, what you can't do, and how it's likely to go. And the how it's likely to go is probably the bit that the clients are really unaware of.
Angela: So what do you advise them at that stage?
Austin: What I would always advise is let's do everything we can not to make this any worse. We might not be able to make it better. I'm not a marriage guidance counsellor or, you know, Cilla Black bringing people together.
If it's done, it's gone, then let's just pick up what we have and move forward. And in the moving forward, what we do is we try to make it not worse. And therefore, it may be that communication has broken down so badly that the two of them can't talk to each other about anything.
But most often, I would say, it's not quite that. There's unhappiness and anger and bad emotions. But if I say to the client, look, without committing yourself to anything, talk to your other half and say, I've seen a lawyer just for a preliminary consultation.
We've had a chat. We've talked about it. And here's the points the lawyer has asked us to discuss.
Now, if the two of them are both civilized, then they can discuss it. I might not agree. I'm not asking them to agree.
I'm just asking to discuss it. For example, we'll need to get all of our bank accounts and any debts we've got and the value of our property and our pensions and put them all on a spreadsheet or an account or a statement or a bit of paper and see what we are worth as people financially, and then take it from there. Again, as I say, without committing to anything, because the law basically is that everything is to be shared fairly.
That may be 50-50 or it may be a different split, but we can't get to that point. I know we'll come to that later in more detail, but we can't get to that point without knowing everything that there is. So we have a rough kind of idea of what the money is.
Secondly, if there are children, and depending on what age they are, what do we think is best for the children? Not necessarily what we want for the children. The law is what is best for the children is much more important than what anybody wants, because it may be a time in school where moving them back to your parents who live in Fife is not practical or the best thing, best to keep them at the school.
Does that mean not selling the house and dividing the proceeds? Does that mean keeping the house going with one of us as a sort of main carer in the house until the children are old enough and then selling the house? Where are the children to live either here, or are they to be split between here and another property, or are you going to visit them here, or are they going to visit you there?
So already we're getting a flavour of how things might be in the near and further future. So what I want the client to do is go to the other spouse or partner and say, this is breaking down. We need to start building something new.
And the thing new is kind of two buildings instead of one. If that can help to resolve things or move things forward or give the parties confidence to be talking to each other more, that's great. But the likelihood is they'll still need to come back and say, right, here's what everything is, and here's what we think we want to do.
Can you comment on that legally, and how do you make it happen? And then a solicitor will be able to do that. We would say, well, yes, you are entitled to this, this, this, and this, and I see that you've got a valuation of, for the sake of argument, 100,000 pounds on the pension.
70,000 of that is a matrimonial asset, because your other party was working before you were married. So 30% of the increase in value of the pension is not matrimonial. But the period between the date of marriage and this date of separation is 70% of the pension, so you're entitled to 35%.
So, you know, there's already...
Angela: The ball starts rolling.
Ausitn: The ball starts rolling. There's specifics we can start putting in there. Talk about the kids, and the client might say, well, my partner, my spouse, is intending to rent a flat a couple of miles away, and there'll be a bedroom for the kids there.
And already we're saying, right, that's good, because it means that the kids will be staying at home, but they will have the right to the opportunity to visit the other spouse and even stay overnight and maybe go away for holidays. So that this is already a kind of healthier thing than just saying, I don't ever want to see them again, which you do get from time to time.
Angela: Is the situation different whether you're married or you're simply cohabiting?
Austin: Well, yes, is the broad answer to that. It is actually more important in those cohabitation situations, what is in whose name. And by that, I mean, if the house is in joint names, if the main bank or savings accounts are in joint names, if investments are in joint names, then it's almost a kind of pale copy of marriage.
Because if you own, say, a property, you and your pal bought a flat to let out because you're starting this business, and then one of you circumstances change and wants out. The fact that you are both joint owners means that the law allows you to reorganize the whole thing and sell the property and divide the proceeds. If it was just in one name, you know, if your pal gave you half the price but the property was in your name, they'd be in a terrible situation.
They would have very few rights, or at least we need to go to court to enforce them. If a couple have everything in joint names, then it's not quite marriage, but it has a lot of the same protections. Where they don't, that's where the problem is.
Because if everything is, most of it is in one partner's name, and the other partner says that this isn't working, I want to leave, and I want half of everything, they're not entitled to it.
No.
Because, principally, because they're not married.
Angela: But they might think, oh, I've been paying some of the mortgage here, and the...
Austin: Yes. And they would absolutely be entitled to seek a kind of restitution or a settlement based on the benefit that they have brought to the relationship and to the establishment of the house, the family. But without A, marriage, or B, some kind of minute of agreement specifying what the rights and duties are on exit, then it's not that they won't get anything.
It's just that if relations are very bad, they may have to take the other party to court and not get as much as they would have got if they'd been married or if they'd had an agreement set up.
Angela: Okay, so does one person need to immediately leave the family home, and do they have to support the other person, you know? I mean, what happens to the mortgage or the utility bills and that kind of thing?
Austin: Well, strictly speaking, neither of them has to leave. They can both continue to live in the same house on the basis that maybe one of them can't afford to leave. Live in the same house as separated parties, and they could share the bills or they could reorganise the bills in a way.
Maybe if one of them earns an awful lot more than the other one, or one of them has to work part time in order to look after children, then the one earning more may have to support with a greater contribution than the one with the kids. And that, if one of them does leave, becomes a very important foundation for the financial support. For example, if the spouses are, one of them earns more, let's just say it's the man who earns more, because, and it still is a social thing, that the wife, the spouse, has perhaps either given up or reduced her career in order to bring up their children that they both brought into the world, and both love, and both want.
But for practical reasons, one spouse now earns more than the other. If that spouse leaves, yes, he or she, but he will be required to support, at least for a short period, the family home, not least because the children need to be supported as they were. They come before the leaving spouse's fancy holidays, or the Maserati that he's always wanted to buy, and now feels that in his midlife crisis, he can do so.
But, I mean, those sound facetious, but they do happen
But even at a lesser level...
Angela: He’ll still have to pay rent or something in the new place, I guess, so they would have two lots of, you know...
Austin: Absolutely. And there's a question of priorities. Now, if he or she, we are using he, but it can be either way, refuses or just kind of never gets round to supporting, then there are mechanisms to take them to court or to get statutory child support.
Neither spouse can waltz away and give up their responsibilities. The devil is always in the detail. Every house is different.
Every relationship and family are different. And the costs that can be identified as lying against the absent parent or the absent spouse are particular to that situation. But the main thing to say is, in a sense, if the situation at home is untenable and you just cannot be in the same place together, then one leaving does not mean that there is necessarily a complete financial meltdown.
If one of them really sticks and says, no, I don't agree with that, you've got to pay this or I'm not paying that, then it can be resolved at court. And that might speed up the involvement of lawyers and courts in order to resolve those things. Because even if the parties themselves disagree about who is paying for the insurance or who is paying for the kids' after school clubs, then if lawyers get involved, I'm not saying they will wave a wand and make everything right, but they act, on both sides, a separate solicitor for each spouse, they act as kind of the reasonable legal person reflecting on what the client wants and saying, yes, but the law says this, or have you thought about that?
And bringing in an objective note, yes, you support the client, but you don't just simply write down everything the client says and put that in your case and say, right, we're demanding all of that.
Angela: You're trying to mediate between both.
Austin: You really are. And actually, there's a fashion. I mean, and this has come up through my career.
To start with, it always used to be that you just kind of fought for your client, and that was it. But then the idea of mediated justice has come in and become more and more powerful and useful. And very often, it's starting on the point that the two spouses, they're not bad people.
It's just they can't get on together. And if presented with a realistic, common sense and fair proposal, then maybe not immediately, but they will come round to seeing the merits of it.
Angela: On that, is the wrongdoer, if we can call them that, punished financially if they do leave for another partner? Does it matter in separation if you're a saint or if you're a sinner?
Austin: Well, most people are neither. They're somewhere in between. But the point you make is one of those, absolutely one of those, that the spouses are unaware of or unsure of before they seek legal advice or inquire into the law, because people assume that if somebody has misbehaved and either gone off with somebody else or been a bully in the house and has, thank God, left, that somehow crime doesn't pay, that you will be penalized for causing or precipitating or being the reason for the breakup of marriage.
And actually, news alert, everybody. No, that is not the way the law in Scotland or indeed elsewhere, certainly not in England, looks at it. What they say is, no matter who has behaved in a particular way, once the marriage comes to an end, the principles of fair division of money and property and finance come into play.
And fair division does not mean in Scottish law fair because he's an awful person or she misbehaved. Fair just means in terms of the build up of the assets and debts within the marriage, how should they be divided between them? Should it be 50-50 or are there reasons to change that?
And the reasons to change it are not about misbehaviour. They're more to do with, for example, if the partners break up and there are young children and because there are young children, say the mother has got main care of them, she can't go out to either work or... It may be that the children themselves have special needs.
The mother can't go out to work at all, needs to get care in or can only work part-time. In that situation, it may be that she will get more than 50% in order to not even to compensate, but just to support her going forward in the next phase of her life as a separated or divorced parent and spouse. But no, it comes as a surprise to a lot of people that somebody can be really kind of awful in the house, and they're still entitled to, you know, 50% or whatever of the assets.
Angela: Now, before we go on to all the practical finances in a bit more detail, here's a thing. Do separating married couples actually need to get divorced?
Austin: No. In fact, some will feel that even though they're separated and they've got a full deal done and everything is settled, all the money in the property and everything, that they don't want to be divorced. It may be a faith thing.
My faith says, I shouldn't get divorced, so I'm not going to. We'll just live as separated persons. And that's what some people do, and they're perfectly content to do it.
One thing to shout out at this point is, if you do that, then make a will. Because if you're still married, unless you made a separation agreement, we'll come to that in a second, but if you just never really bother with each other again, when one of you dies, the other one has legal rights on your estate. And that either creates real problems on the death of whichever first spouse it is, or it involves bad feeling.
If you make a claim, or if you don't sign away the claim quickly enough, then the relatives think, oh, what's she got? What's her agenda or his agenda? But you can overcome it either by making a will or the separation agreement.
And in a sense, this is at the heart of your question about separation and divorce.
Angela: Yeah, what is a separation agreement then?
Austin: It is the foundation. It is the best way of regulating a separation between either spouses or unmarried partners' cohabitants. You've gone to your lawyers and they advise you on what you're entitled to and what you need to give up or agree to.
And after a while, back and forth, an overall deal comes to mind. And it may be that the house is going to be kept until the youngest child is 18 and then sold, and the profits from that will be divided. Both parties will contribute to the mortgage.
The pensions will be marked up, so that they're shared between the two, according to the law. There are savings, so they're immediately, you know, encashed and divided between the two. So, there's all sorts of things will happen.
The main one in this one being the children will remain living in the house just now. That can all be written up in what we call a separation agreement. You might call it a contract.
And it is set up in legal language. It is signed by both. It is witnessed and it is registered in the Books of Council and Session, and becomes legally binding.
And that deals with everything, including these inheritance rights, because they are signed away. It deals with everything except the legal status of single married divorced. You are still married.
That may have some minor consequences for you. Further down the line, as I said, it may be that that somehow keeps you feeling right about the world, that you are still married. Practically, you're not living together, and you've done all the deals for the money and the kids and the property, but actually you're content that you're still a married person.
On the other hand, what you can do is get on with the separation agreement negotiations immediately, so that by the end of that, and it may take, for the sake of argument, three months, four months, you then need to wait another seven months, eight months, in order to get to start the divorce, because you can do the separation agreement without doing the divorce, and you can then start the divorce a month or so before your year is up, because you've been separated a year. And if we remember, if you both agree to divorce, you only need to be separated a year, and the court will in effect rubber stamp the divorce. So after about 11 months, you get the lawyer, get the writ ready, and it lands just on the 12 months, and you get a divorce quite quickly after that.
But the divorce itself is separate from those financial separation negotiations and agreement. And indeed, the smart way of doing it is by separation agreement, because if you don't, if you negotiate or try and argue for all the financials and property and kids in the divorce action, it's going to take a year, a year and a half, cost thousands and have an uncertainty, because it's not you and your spouse negotiating and agreeing things. You're putting it in the hands of the sheriff, who's an independent expert by all means, but independent third party, who will say, no, no, no, you're asking for 50,000 pounds.
I think you're only entitled to 40,000 pounds. So you have less control. So the separation agreement is A, a very effective and cost effective and legally valid and worthwhile way of doing it.
And B, it is kind of stand alone. It does not mean that you need to get divorced after that, although you can.
Angela: And I guess you would if you were wanting to remarry. So that's when you absolutely do it.
Austin: That's well observed. It hadn't gone through my head, the idea of remarrying. But you are quite right.
And sometimes if the separation hinges around a new relationship, then you're absolutely right. You can bet that somebody will be putting on the pressure for remarriage. And therefore, the kind of quickest way of doing it is that year separation with all the financials out of the way.
But don't forget this. If, for whatever reason the spouse who has been left for another person says, why should I do them any favours? I didn't want them to leave.
I certainly don't approve of that new partner that they've got. I'm not agreeing to anything. Then hopefully their solicitor will say to them, well, you really do need to agree the kind of financials and things.
You just have no way out of that. So let's keep it under our control rather than leave it to the court. But also, because of the separation period as being one year, if you both agree, and two years, if you don't, it means that after two years, the other spouse can get a divorce, whether you've agreed to it or not, whether you approve or not.
So it's actually generally better, even, you know, with your teeth grinding, to negotiate and enter the correspondence and the process at an early stage, and keep that level of control as best you can than just harumph and I'm not cooperating with anything, because eventually that will count against you.
Angela: And it's inevitable, so you might as well just deal with it, I guess. Okay, let's have a look at the finances then. We have touched on them a bit before, but first of all, what does happen to the family home?
Do you have to sell it right away and split it?
Austin: Any two people with owning property jointly, one of them can force a sale. But in the course of a marriage, there is still a right to liquidate, as we would say, your share of the value of the property. But crucially, in the marriage, if you seek to do that and the other party doesn't agree, it has to go to court.
And whether that's an action of division of sale or more likely a divorce action within which there is a crave, as we call it, a request that the court makes a sale order, it is always best done as part of an overall package. So although the question is, can the house be sold? Does the house need to be sold immediately?
And of course, it doesn't. If both parties agree, they'll keep it either, they'll keep it until one of them dies or keep it until the children are growing up, then they're perfectly entitled to do that.
But if one of them is desperate to sell and the other one isn't, then A, it can be negotiated seriously in the separation agreement.
B, if that doesn't work, one party can ask the court to make such an order. But generally speaking in a divorce, that order won't be made on its own. It will be made as part of an overall package, so that for the sake of argument, one spouse has savings of £100,000, which are a matrimonial asset.
The house has a net worth of £50,000 after the mortgage is paid off, so that both spouses have half of 50, £25,000 each from the house. But the savings are all in the name of one in the sum of £100,000. So if the house is sold, the spouse with less, would get the whole proceeds of the sale, plus a bit of the savings to balance it all up.
There's plenty of flexibility in the system, and it's like maybe like a baking programme in the television where all the ingredients come together to make the cake. And those ingredients tend to be things like the value of the house, pensions,
Angela: cars, exactly, savings, premium bonds lots of people have those. Debt, on the negative side, there may be credit card debt, so they may have taken a loan to improve their house, and that loan's still to be paid off.
Angela: So controversially, if someone has a huge credit card debt and the other person doesn't really know about it, are they liable for their debt?
Ausitn: Well, if the debt was used for, or if the credit card was used for domestic purposes, for example, they used it to pay for the holidays and bought furniture and took them nights out and the expensive bottles of wine and all that, then there would be a very strong argument that the, the quote, innocent party still has to pay a share of those debts because they were used for their benefit, even in a kind of roundabout way. But if the spouse had a gambling problem and spent money on things and just frittered it away, then that would not be classed as a matrimonial debt, or at least that would be the argument and should be a successful argument by the innocent spouse thing. I didn't know anything about this.
I see receipts here for the casino or for holidays and restaurants and things. I wasn't there.
Nothing to do with me.
Angela: Presents for the other person.
Austin: There is that, yes. So that would be, again, talk about fair division. It wouldn't be fair for the innocent party to have to be landed with a debt that they knew nothing about and that did not do any good to them.
Angela: What about pensions?? You touched a little bit on pensions and savings. So, that's the same?
You look at the date of separation, and then it's kind of, there's a formula, I guess, around that.
Austin: With pensions in particular, ordinary people and lawyers are generally not geared up to do the relevant calculations because there's quite a kind of complex legal process that the pensions need to be filtered through in order to give a usable figure for the court or for the lawyers to help with the negotiations. And so it tends to be either actuaries who take the figures and all the facts and give a report with the matrimonial value, or increasingly a lot of the big pension companies have their own in-house people. So that if you ask them for a matrimonial valuation of the pension based on such and such a date of separation, they will just send you that back in a few days.
But it's that figure that is crucial to come back. And both parties may have pensions, and those are compared against each other. And inevitably, one will be either a bit bigger than the other, or maybe a lot bigger than the other.
And you can do a pension share to allow the kind of top slice to be taken from one pension to another. Again, there's a procedure for that. The pension providers are all geared up to it.
And the court, if it's at court, the sheriff knows what to do about making a pension share order. And then that all happens after that.
Angela: Do you need to go to court? And how long does the court process take? And how much would that cost?
Ausitn: If you cannot agree stuff, and eventually one party kind of gives up trying and says, look, we've negotiated all around the houses. My ex is not going to agree to this, so I will take it to court.
Any court action, not just divorce, but any court action of any sort is an expensive business.
And you would not be looking at anything less than, you know, thousands of pounds, and it can be tens of thousands of pounds. We all read from time to time in the newspapers about society divorces where it's millions of pounds. On the average, you would be drifting into a five-figure sum.
Now, unlike other cases where, if, for example, somebody owed you money, they didn't pay, you took them to court, you got an order for repayment of the loan plus most of your costs. It's not necessarily like that with marriage and divorce. The question of who pays the costs can be very complex.
There may be good points on both sides, and the sheriff makes an order for divorce, but says for the pursuer, it's pursuer and defender, whichever spouse takes the case, it's the pursuer, the other party, the defender. Between pursuer and defender, the pursuer has made these points and is entitled to these craves, requests that they've put down. The other spouse, the defender, was wrong about some things, but right about others.
So therefore, what I propose to do is grant the divorce, plus these certain other financial orders, and each party will be liable for their own expenses. And that, probably the majority of matrimonial cases, that's the way it ends up. Or the sheriff could even say, well, I'll award the pursuer half of their costs against the defender, which is still a lot of money to find.
But somebody has to pay a huge lot of money to the lawyers for a court case where there is stuff in dispute. If it's just the divorce, if we've had the separation agreement, we've negotiated it all successfully, and signed it all off, and all we need to do is the actual divorce after the year or the two years. That's a very limited thing.
It's called the simplified procedure, and it literally is filling up a form, signing it, getting the lawyer to counter sign it, sticking it into the court with a fee. Nothing happens for three weeks, and then you get a divorce. And that is hundreds of pounds at worst, and it may be part of the overall costs of the separation agreement.
So from that end of the scale, it can go to tens, hundreds of thousands of pounds in legal costs.
Angela: Wow. So you should really negotiate before you get to that stage.
Austin: Definitely.
Angela: And one other thing before we go on to a bit of a summary. What about pets?
Austin: Ah!
Angela: Pet prenups seem to be a thing now.
Austin: Yes, and so they should be. Pets, with some clients, I of course won't name, they almost work on the assumption that children are property to be argued and fought over and kept and possessed. Whereas pets are like human beings and have every right and privilege imaginable.
That is the way a lot of people think. The law is 180 degrees away from that. Children are not property.
They are their own people.
Angela: And indeed, we've done a whole episode about this.
Austin: We have, as we have spoken about before. Children can be a party in the case, can have their own lawyer or their own safeguard and all those things. Pets are property.”
I'm sorry, dog and cat owners. Pets are, in England, they call them chattels. In Scotland, we call them movable possessions, movable property.
So they conform to the rules. For example, if I have a car before I get married, and I get married, and it doesn't work out, and I get divorced, I still keep my car. It was my car before the marriage.
It's the same with pets. If I brought a lovely dog, cat, beloved of me, into the relationship, and my partner falls in love with a dog or cat, and we think of him or her as a little member of the family, and then when the family breaks up, my ex is heartbroken because she feels that the cat responds better to her, or she feels she's spent her money on the vets, or she's the one that remembers to feed it or takes the dog out for a walk, so she should get it. Now, I'm afraid the courts are not as sympathetic as they might be, and they've got to be practical.
It is a piece of property. I have seen cases where the pet is given into kind of joint ownership and the parties are told, well, you have got to sort out how you share the animal or how you see it, whether it has two homes or you come to visit it. That's kind of up to you, but we're not really going to descend to a decision on what days you get the dog and what days you get the cat.
But there is no doubt that in the negotiation, or if it goes to court, that there will be more heat and light arguing about who gets the pet than about almost anything else. A pension is just a sum of money. A cat is a member of the family, but the law doesn't support that.
To the law, it is a piece of property.
Angela: OK then, so I think we've covered quite a lot of ground here. What about a wee bit of a summary? What are the steps if someone is considering a divorce? How long does it take, and how much does it cost, would you say?
Austin: Right, if you're considering it, speak to somebody. Don't get caught in a kind of silo or whirlpool of loneliness and angst. Because although we've talked about the technicalities, at the heart, it is a sad, sad thing.
It can be distressing, you can be afraid, you can be in emotional or indeed physical pain. There's so many personal, awful aspects to it that need to be looked after. If you think it's not going to work, that's the point at which to consider getting advice, confidential, free advice from a solicitor, and that will be the trigger for things moving forward if they're going to.
How long will it take? Piece of string. It won't take anything less than three months, four months.
And that's because there are so many practical things. If you have a house, if you have a pension, if you have children, particularly, then it can take a long time to get your head round it, and also a long time to articulate what you want, and then deal with what the other person wants, and kind of negotiate through the undergrowth with that. It can take longer than that, but it shouldn't take longer than a year to get the whole thing out of the way, unless it's a contested court, actually it can take longer than that.
But it should be between, I would say, three months and a year. How much does it cost? Bargain basement, if you agree most things, and this is one of the reasons you're encouraged to speak to your partner and agree whatever you can agree, so that the less the lawyer has to do, the less will be the cost.
I can't imagine a separation agreement being done for less than a thousand pounds. You can then start going up two, three, four, five thousand, even a bit more if there's a number of assets, or if there is disagreement on valuation. Say there's a business that one of you runs, or you both run, what's that business worth as a matrimonial asset?
It might take some time to sort that out. If it goes to court, as we've said, maybe start at ten and start going upwards from there in terms of costs. Build in the costs to the whole thing, because if your assets are worth X, then you may say, well, in order for peace of mind and a future and a way forward that's sensible, I'm prepared to throw three, four, five thousand pounds at it. because that's a good investment.
If I do nothing, if I don't engage a lawyer, or I don't get into the process, I will be left in this miserable, unhappy situation for everybody. So like everything else, if you're going to improve your house, you pay thousands of pounds to the joiner. If you're going to improve your health, you pay thousands of pounds to the health club.
If you're going to improve your life because your marriage or relationship was broken down, you're going to have to invest in that. And that brings in the lawyers.
Angela: So try and be amicable then, if you can?
Austin: Amicable saves you money. The more to fight about, the more expensive it is, the more upsetting it is, the longer it's going to take, and the worse is going to be the effect, not just on you, but on your ex, on your children, on your wider family, on your friends, because they'll get fed up hearing you talk about the misery, and they might get an impression of you rather than of your ex by the way you talk about the way you're prolonging things or not agreeing things. Just be objective be amicable, take advice, listen to reason, and take a breath before saying anything or deciding anything.
Angela: Okay, Austin, thanks again.
Austin: My pleasure.
Austin: Thanks, Angela. We will talk about all the ins and outs of separation and divorce, which is, as you quite rightly say, legally, it's well-trodden. I mean, the principles and rules are pretty well known to certainly the legal profession, although sometimes they're a surprise to separating and divorcing couples.
But the real problem is the emotional side, the personal side, and indeed the practical side, because you have a home where it's maybe a couple of parents, a few children, everyone living a routine life, and then that has to change. People have to live elsewhere, money has to move, property has to be sold. So the logistics of it, as well as the emotional upheaval are terrible.
Angela: I think it's probably fair to say that trends have changed over the years, perhaps not as many people marry. Is that your experience?
Austin: Very much so. People have all sorts of ways of being together, and the old Scottish word of a bide in means a cohabitant or cohabitee, which is a Scottish usage of that. So living together has its own set of laws and rules, or sometimes the absence of laws and rules, because marriage, formal marriage, or indeed now civil partnership as well, has built-in protections for the spouses or the partners, and indeed the children, whereas living together and then breaking up, there can be much more of a vagueness about what is expected and what could happen.
If you're going into any relationship, whether it be a formal marriage or living together, you should plan ahead, and you and I have talked about prenups in the past in other podcasts. Although they're not very popular in Scotland, they are growing in popularity, and to me, the logic is absolutely unassailable. If you're going into something that you're uncertain about, and okay, you hope for the best till death do part, and you're in love and all of those things, but nobody knows what's going to happen in the future.
So you should plan ahead for the various scenarios.
“What if we break up? What if things go wrong?
And in cohabitation, it's even more important to do that because the law doesn't protect a leaving partner in the same way that it does with marriage.
Angela: What do you think are the most common reasons for spouses or cohabiting couples to separate?
Austin: I don't have any greater insight to that than the rest of us, but if you start with the law, the law traditionally provides various grounds of divorce. One is unreasonable behaviour, and that can be anything from just not talking to the other party, or keeping them short of money, or violence, or drunkenness, or some other misbehaviour. So unreasonable behaviour used to be the kind of catch-all for relationships ending.
Adultery is another one, and that is what it says in the tin. It is going away with some other person to the detriment of your promise to be faithful to your own spouse. There's desertion, which is, again, what it sounds like in the old days.
Angela: Sounds like the war.”
Austin: Yes. Well, there you are. Never a truer word spoken.
It means leaving without agreement or consent and living somewhere else for a period of time. And the periods have changed over the years. And the other main grounds traditionally were separation.
Separation, desertion are two things. Separation is where you both agree you're living apart because you don't want to be married anymore. And in the old days, it was five years separation.
You get a divorce even if the other spouse didn't agree. Or two years separation if you both agreed. And then over the years, that was frankly so wildly successful as a change in the law.
They made it easier so that if you live apart for two years, and one party either doesn't agree to divorce or refuses to cooperate or communicate, you can get a divorce without consent of the other. But in the vast majority of cases, the parties, whatever else they disagree about, they agree that they no longer want to be married. And if that's the case, then after one year of being separated, you can get a legal divorce from the courts.
And of course, what I've been talking about the grounds of divorce, these are the grounds of divorce for court action and court decree of divorce in Scotland. Separation and living separately are a kind of parallel thing. So it's not as if you have to have one of those grounds in order to separate.
You can just separate as you both agree to do so.
Angela: And before we get ahead of ourselves, I think that date of separation is quite important, isn't it?
Austin: It very much is. And it's date of separation, capital D, capital S. It is a legal concept.
Now, the date of separation is crucial for a number of reasons. The two main things are, we've talked about the period of separation, two years, one year. The period of separation starts on the date of separation.
And the other main thing is that that is when the accounting is done. For example, if one spouse has a pension that is going, occupational pension, then the other spouse's claim on it is on the value or increase in value up to the date of separation. But after that, they have no claim on any further increase in value of the pension.
And that's the same with all assets. But what sometimes clients are worried about or unsure about is, well, what does the date of separation mean? We've been living together, but in separate rooms, or we don't talk, and it's been really, you know, awful.
And assuming everything holds together legally, you can start the date of separation from the date at which, even if you're both living in the same house, you stopped living together as a normal husband and wife. And that may be cooperating with each other, communicating, maybe financially, you've kind of separated things out, maybe you sleep in separate rooms, or a combination of those things, so that it's clear to you as spouses that things have changed irretrievably. Now, the classic is one leaves the house and goes and lives in a flat or back to their parents or in a bed set or something, and that's a very obvious date of separation.
But the date of separation is a very important legal milestone and concept, and a lot of other things flow from that.
Angela: Okay, let's just get into the practicalities then.
So a couple, or it could be one half of a couple, has decided for whatever reason that they don't want to live with each other anymore. What is the first step in formalising this split and the relationship?
Angela: Well, you would expect me to see a lawyer, and I do say that for a couple of reasons, and it's not just job creation for the legal profession. People are expert in their own lives or their own jobs, or if they're an architect, they know all about architecture. People, generally speaking, know a bit about the law, but not enough.
So when it comes to separating, A, you don't want them to take a false step that will disadvantage them in any final settlement or case. Secondly, you don't want them to do something which they're not entitled to do. For example, freeze the other party out of a bank account, or take stuff out of the house and hide it, or leave the house with the children and not tell the children's other parent where they're going.
You know, there's a range of things that can be avoided by just knowing what your rights and duties are.
“So you go to see a lawyer and find one who does a first consultation without a charge. And many firms do that.
We do that. And that allows you in a private but expert environment to talk to a solicitor. And you may use that solicitor for what happens afterwards, or you may not.
There's no sales pitch as such on the part of the lawyer. But you ask the lawyer the questions, and indeed a lawyer, sometimes the clients themselves don't know the questions they want to ask. They've got an idea, but you as the solicitor, know this territory and start offering subject matter or heads of terms or advice or information that you're pretty sure they won't know.
And very quickly, you get a sense just from sitting down, and it's always best sitting down in the room rather than a Zoom call or emails or whatever. Initially, you want to see somebody face to face in private, not least because you can then express yourself in a way that you maybe even can't tell your family about or your children are too young or your friends. You don't want your friends to know everything.
You give the full, unexpurgated facts and the lawyer will tell you in broad terms initially what you're entitled to, what you should avoid doing, what you can't do, and how it's likely to go. And the how it's likely to go is probably the bit that the clients are really unaware of.
Angela: So what do you advise them at that stage?
Austin: What I would always advise is let's do everything we can not to make this any worse. We might not be able to make it better. I'm not a marriage guidance counsellor or, you know, Cilla Black bringing people together.
If it's done, it's gone, then let's just pick up what we have and move forward. And in the moving forward, what we do is we try to make it not worse. And therefore, it may be that communication has broken down so badly that the two of them can't talk to each other about anything.
But most often, I would say, it's not quite that. There's unhappiness and anger and bad emotions. But if I say to the client, look, without committing yourself to anything, talk to your other half and say, I've seen a lawyer just for a preliminary consultation.
We've had a chat. We've talked about it. And here's the points the lawyer has asked us to discuss.
Now, if the two of them are both civilized, then they can discuss it. I might not agree. I'm not asking them to agree.
I'm just asking to discuss it. For example, we'll need to get all of our bank accounts and any debts we've got and the value of our property and our pensions and put them all on a spreadsheet or an account or a statement or a bit of paper and see what we are worth as people financially, and then take it from there. Again, as I say, without committing to anything, because the law basically is that everything is to be shared fairly.
That may be 50-50 or it may be a different split, but we can't get to that point. I know we'll come to that later in more detail, but we can't get to that point without knowing everything that there is. So we have a rough kind of idea of what the money is.
Secondly, if there are children, and depending on what age they are, what do we think is best for the children? Not necessarily what we want for the children. The law is what is best for the children is much more important than what anybody wants, because it may be a time in school where moving them back to your parents who live in Fife is not practical or the best thing, best to keep them at the school.
Does that mean not selling the house and dividing the proceeds? Does that mean keeping the house going with one of us as a sort of main carer in the house until the children are old enough and then selling the house? Where are the children to live either here, or are they to be split between here and another property, or are you going to visit them here, or are they going to visit you there?
So already we're getting a flavour of how things might be in the near and further future. So what I want the client to do is go to the other spouse or partner and say, this is breaking down. We need to start building something new.
And the thing new is kind of two buildings instead of one. If that can help to resolve things or move things forward or give the parties confidence to be talking to each other more, that's great. But the likelihood is they'll still need to come back and say, right, here's what everything is, and here's what we think we want to do.
Can you comment on that legally, and how do you make it happen? And then a solicitor will be able to do that. We would say, well, yes, you are entitled to this, this, this, and this, and I see that you've got a valuation of, for the sake of argument, 100,000 pounds on the pension.
70,000 of that is a matrimonial asset, because your other party was working before you were married. So 30% of the increase in value of the pension is not matrimonial. But the period between the date of marriage and this date of separation is 70% of the pension, so you're entitled to 35%.
So, you know, there's already...
Angela: The ball starts rolling.
Ausitn: The ball starts rolling. There's specifics we can start putting in there. Talk about the kids, and the client might say, well, my partner, my spouse, is intending to rent a flat a couple of miles away, and there'll be a bedroom for the kids there.
And already we're saying, right, that's good, because it means that the kids will be staying at home, but they will have the right to the opportunity to visit the other spouse and even stay overnight and maybe go away for holidays. So that this is already a kind of healthier thing than just saying, I don't ever want to see them again, which you do get from time to time.
Angela: Is the situation different whether you're married or you're simply cohabiting?
Austin: Well, yes, is the broad answer to that. It is actually more important in those cohabitation situations, what is in whose name. And by that, I mean, if the house is in joint names, if the main bank or savings accounts are in joint names, if investments are in joint names, then it's almost a kind of pale copy of marriage.
Because if you own, say, a property, you and your pal bought a flat to let out because you're starting this business, and then one of you circumstances change and wants out. The fact that you are both joint owners means that the law allows you to reorganize the whole thing and sell the property and divide the proceeds. If it was just in one name, you know, if your pal gave you half the price but the property was in your name, they'd be in a terrible situation.
They would have very few rights, or at least we need to go to court to enforce them. If a couple have everything in joint names, then it's not quite marriage, but it has a lot of the same protections. Where they don't, that's where the problem is.
Because if everything is, most of it is in one partner's name, and the other partner says that this isn't working, I want to leave, and I want half of everything, they're not entitled to it.
No.
Because, principally, because they're not married.
Angela: But they might think, oh, I've been paying some of the mortgage here, and the...
Austin: Yes. And they would absolutely be entitled to seek a kind of restitution or a settlement based on the benefit that they have brought to the relationship and to the establishment of the house, the family. But without A, marriage, or B, some kind of minute of agreement specifying what the rights and duties are on exit, then it's not that they won't get anything.
It's just that if relations are very bad, they may have to take the other party to court and not get as much as they would have got if they'd been married or if they'd had an agreement set up.
Angela: Okay, so does one person need to immediately leave the family home, and do they have to support the other person, you know? I mean, what happens to the mortgage or the utility bills and that kind of thing?
Austin: Well, strictly speaking, neither of them has to leave. They can both continue to live in the same house on the basis that maybe one of them can't afford to leave. Live in the same house as separated parties, and they could share the bills or they could reorganise the bills in a way.
Maybe if one of them earns an awful lot more than the other one, or one of them has to work part time in order to look after children, then the one earning more may have to support with a greater contribution than the one with the kids. And that, if one of them does leave, becomes a very important foundation for the financial support. For example, if the spouses are, one of them earns more, let's just say it's the man who earns more, because, and it still is a social thing, that the wife, the spouse, has perhaps either given up or reduced her career in order to bring up their children that they both brought into the world, and both love, and both want.
But for practical reasons, one spouse now earns more than the other. If that spouse leaves, yes, he or she, but he will be required to support, at least for a short period, the family home, not least because the children need to be supported as they were. They come before the leaving spouse's fancy holidays, or the Maserati that he's always wanted to buy, and now feels that in his midlife crisis, he can do so.
But, I mean, those sound facetious, but they do happen
But even at a lesser level...
Angela: He’ll still have to pay rent or something in the new place, I guess, so they would have two lots of, you know...
Austin: Absolutely. And there's a question of priorities. Now, if he or she, we are using he, but it can be either way, refuses or just kind of never gets round to supporting, then there are mechanisms to take them to court or to get statutory child support.
Neither spouse can waltz away and give up their responsibilities. The devil is always in the detail. Every house is different.
Every relationship and family are different. And the costs that can be identified as lying against the absent parent or the absent spouse are particular to that situation. But the main thing to say is, in a sense, if the situation at home is untenable and you just cannot be in the same place together, then one leaving does not mean that there is necessarily a complete financial meltdown.
If one of them really sticks and says, no, I don't agree with that, you've got to pay this or I'm not paying that, then it can be resolved at court. And that might speed up the involvement of lawyers and courts in order to resolve those things. Because even if the parties themselves disagree about who is paying for the insurance or who is paying for the kids' after school clubs, then if lawyers get involved, I'm not saying they will wave a wand and make everything right, but they act, on both sides, a separate solicitor for each spouse, they act as kind of the reasonable legal person reflecting on what the client wants and saying, yes, but the law says this, or have you thought about that?
And bringing in an objective note, yes, you support the client, but you don't just simply write down everything the client says and put that in your case and say, right, we're demanding all of that.
Angela: You're trying to mediate between both.
Austin: You really are. And actually, there's a fashion. I mean, and this has come up through my career.
To start with, it always used to be that you just kind of fought for your client, and that was it. But then the idea of mediated justice has come in and become more and more powerful and useful. And very often, it's starting on the point that the two spouses, they're not bad people.
It's just they can't get on together. And if presented with a realistic, common sense and fair proposal, then maybe not immediately, but they will come round to seeing the merits of it.
Angela: On that, is the wrongdoer, if we can call them that, punished financially if they do leave for another partner? Does it matter in separation if you're a saint or if you're a sinner?
Austin: Well, most people are neither. They're somewhere in between. But the point you make is one of those, absolutely one of those, that the spouses are unaware of or unsure of before they seek legal advice or inquire into the law, because people assume that if somebody has misbehaved and either gone off with somebody else or been a bully in the house and has, thank God, left, that somehow crime doesn't pay, that you will be penalized for causing or precipitating or being the reason for the breakup of marriage.
And actually, news alert, everybody. No, that is not the way the law in Scotland or indeed elsewhere, certainly not in England, looks at it. What they say is, no matter who has behaved in a particular way, once the marriage comes to an end, the principles of fair division of money and property and finance come into play.
And fair division does not mean in Scottish law fair because he's an awful person or she misbehaved. Fair just means in terms of the build up of the assets and debts within the marriage, how should they be divided between them? Should it be 50-50 or are there reasons to change that?
And the reasons to change it are not about misbehaviour. They're more to do with, for example, if the partners break up and there are young children and because there are young children, say the mother has got main care of them, she can't go out to either work or... It may be that the children themselves have special needs.
The mother can't go out to work at all, needs to get care in or can only work part-time. In that situation, it may be that she will get more than 50% in order to not even to compensate, but just to support her going forward in the next phase of her life as a separated or divorced parent and spouse. But no, it comes as a surprise to a lot of people that somebody can be really kind of awful in the house, and they're still entitled to, you know, 50% or whatever of the assets.
Angela: Now, before we go on to all the practical finances in a bit more detail, here's a thing. Do separating married couples actually need to get divorced?
Austin: No. In fact, some will feel that even though they're separated and they've got a full deal done and everything is settled, all the money in the property and everything, that they don't want to be divorced. It may be a faith thing.
My faith says, I shouldn't get divorced, so I'm not going to. We'll just live as separated persons. And that's what some people do, and they're perfectly content to do it.
One thing to shout out at this point is, if you do that, then make a will. Because if you're still married, unless you made a separation agreement, we'll come to that in a second, but if you just never really bother with each other again, when one of you dies, the other one has legal rights on your estate. And that either creates real problems on the death of whichever first spouse it is, or it involves bad feeling.
If you make a claim, or if you don't sign away the claim quickly enough, then the relatives think, oh, what's she got? What's her agenda or his agenda? But you can overcome it either by making a will or the separation agreement.
And in a sense, this is at the heart of your question about separation and divorce.
Angela: Yeah, what is a separation agreement then?
Austin: It is the foundation. It is the best way of regulating a separation between either spouses or unmarried partners' cohabitants. You've gone to your lawyers and they advise you on what you're entitled to and what you need to give up or agree to.
And after a while, back and forth, an overall deal comes to mind. And it may be that the house is going to be kept until the youngest child is 18 and then sold, and the profits from that will be divided. Both parties will contribute to the mortgage.
The pensions will be marked up, so that they're shared between the two, according to the law. There are savings, so they're immediately, you know, encashed and divided between the two. So, there's all sorts of things will happen.
The main one in this one being the children will remain living in the house just now. That can all be written up in what we call a separation agreement. You might call it a contract.
And it is set up in legal language. It is signed by both. It is witnessed and it is registered in the Books of Council and Session, and becomes legally binding.
And that deals with everything, including these inheritance rights, because they are signed away. It deals with everything except the legal status of single married divorced. You are still married.
That may have some minor consequences for you. Further down the line, as I said, it may be that that somehow keeps you feeling right about the world, that you are still married. Practically, you're not living together, and you've done all the deals for the money and the kids and the property, but actually you're content that you're still a married person.
On the other hand, what you can do is get on with the separation agreement negotiations immediately, so that by the end of that, and it may take, for the sake of argument, three months, four months, you then need to wait another seven months, eight months, in order to get to start the divorce, because you can do the separation agreement without doing the divorce, and you can then start the divorce a month or so before your year is up, because you've been separated a year. And if we remember, if you both agree to divorce, you only need to be separated a year, and the court will in effect rubber stamp the divorce. So after about 11 months, you get the lawyer, get the writ ready, and it lands just on the 12 months, and you get a divorce quite quickly after that.
But the divorce itself is separate from those financial separation negotiations and agreement. And indeed, the smart way of doing it is by separation agreement, because if you don't, if you negotiate or try and argue for all the financials and property and kids in the divorce action, it's going to take a year, a year and a half, cost thousands and have an uncertainty, because it's not you and your spouse negotiating and agreeing things. You're putting it in the hands of the sheriff, who's an independent expert by all means, but independent third party, who will say, no, no, no, you're asking for 50,000 pounds.
I think you're only entitled to 40,000 pounds. So you have less control. So the separation agreement is A, a very effective and cost effective and legally valid and worthwhile way of doing it.
And B, it is kind of stand alone. It does not mean that you need to get divorced after that, although you can.
Angela: And I guess you would if you were wanting to remarry. So that's when you absolutely do it.
Austin: That's well observed. It hadn't gone through my head, the idea of remarrying. But you are quite right.
And sometimes if the separation hinges around a new relationship, then you're absolutely right. You can bet that somebody will be putting on the pressure for remarriage. And therefore, the kind of quickest way of doing it is that year separation with all the financials out of the way.
But don't forget this. If, for whatever reason the spouse who has been left for another person says, why should I do them any favours? I didn't want them to leave.
I certainly don't approve of that new partner that they've got. I'm not agreeing to anything. Then hopefully their solicitor will say to them, well, you really do need to agree the kind of financials and things.
You just have no way out of that. So let's keep it under our control rather than leave it to the court. But also, because of the separation period as being one year, if you both agree, and two years, if you don't, it means that after two years, the other spouse can get a divorce, whether you've agreed to it or not, whether you approve or not.
So it's actually generally better, even, you know, with your teeth grinding, to negotiate and enter the correspondence and the process at an early stage, and keep that level of control as best you can than just harumph and I'm not cooperating with anything, because eventually that will count against you.
Angela: And it's inevitable, so you might as well just deal with it, I guess. Okay, let's have a look at the finances then. We have touched on them a bit before, but first of all, what does happen to the family home?
Do you have to sell it right away and split it?
Austin: Any two people with owning property jointly, one of them can force a sale. But in the course of a marriage, there is still a right to liquidate, as we would say, your share of the value of the property. But crucially, in the marriage, if you seek to do that and the other party doesn't agree, it has to go to court.
And whether that's an action of division of sale or more likely a divorce action within which there is a crave, as we call it, a request that the court makes a sale order, it is always best done as part of an overall package. So although the question is, can the house be sold? Does the house need to be sold immediately?
And of course, it doesn't. If both parties agree, they'll keep it either, they'll keep it until one of them dies or keep it until the children are growing up, then they're perfectly entitled to do that.
But if one of them is desperate to sell and the other one isn't, then A, it can be negotiated seriously in the separation agreement.
B, if that doesn't work, one party can ask the court to make such an order. But generally speaking in a divorce, that order won't be made on its own. It will be made as part of an overall package, so that for the sake of argument, one spouse has savings of £100,000, which are a matrimonial asset.
The house has a net worth of £50,000 after the mortgage is paid off, so that both spouses have half of 50, £25,000 each from the house. But the savings are all in the name of one in the sum of £100,000. So if the house is sold, the spouse with less, would get the whole proceeds of the sale, plus a bit of the savings to balance it all up.
There's plenty of flexibility in the system, and it's like maybe like a baking programme in the television where all the ingredients come together to make the cake. And those ingredients tend to be things like the value of the house, pensions,
Angela: cars, exactly, savings, premium bonds lots of people have those. Debt, on the negative side, there may be credit card debt, so they may have taken a loan to improve their house, and that loan's still to be paid off.
Angela: So controversially, if someone has a huge credit card debt and the other person doesn't really know about it, are they liable for their debt?
Ausitn: Well, if the debt was used for, or if the credit card was used for domestic purposes, for example, they used it to pay for the holidays and bought furniture and took them nights out and the expensive bottles of wine and all that, then there would be a very strong argument that the, the quote, innocent party still has to pay a share of those debts because they were used for their benefit, even in a kind of roundabout way. But if the spouse had a gambling problem and spent money on things and just frittered it away, then that would not be classed as a matrimonial debt, or at least that would be the argument and should be a successful argument by the innocent spouse thing. I didn't know anything about this.
I see receipts here for the casino or for holidays and restaurants and things. I wasn't there.
Nothing to do with me.
Angela: Presents for the other person.
Austin: There is that, yes. So that would be, again, talk about fair division. It wouldn't be fair for the innocent party to have to be landed with a debt that they knew nothing about and that did not do any good to them.
Angela: What about pensions?? You touched a little bit on pensions and savings. So, that's the same?
You look at the date of separation, and then it's kind of, there's a formula, I guess, around that.
Austin: With pensions in particular, ordinary people and lawyers are generally not geared up to do the relevant calculations because there's quite a kind of complex legal process that the pensions need to be filtered through in order to give a usable figure for the court or for the lawyers to help with the negotiations. And so it tends to be either actuaries who take the figures and all the facts and give a report with the matrimonial value, or increasingly a lot of the big pension companies have their own in-house people. So that if you ask them for a matrimonial valuation of the pension based on such and such a date of separation, they will just send you that back in a few days.
But it's that figure that is crucial to come back. And both parties may have pensions, and those are compared against each other. And inevitably, one will be either a bit bigger than the other, or maybe a lot bigger than the other.
And you can do a pension share to allow the kind of top slice to be taken from one pension to another. Again, there's a procedure for that. The pension providers are all geared up to it.
And the court, if it's at court, the sheriff knows what to do about making a pension share order. And then that all happens after that.
Angela: Do you need to go to court? And how long does the court process take? And how much would that cost?
Ausitn: If you cannot agree stuff, and eventually one party kind of gives up trying and says, look, we've negotiated all around the houses. My ex is not going to agree to this, so I will take it to court.
Any court action, not just divorce, but any court action of any sort is an expensive business.
And you would not be looking at anything less than, you know, thousands of pounds, and it can be tens of thousands of pounds. We all read from time to time in the newspapers about society divorces where it's millions of pounds. On the average, you would be drifting into a five-figure sum.
Now, unlike other cases where, if, for example, somebody owed you money, they didn't pay, you took them to court, you got an order for repayment of the loan plus most of your costs. It's not necessarily like that with marriage and divorce. The question of who pays the costs can be very complex.
There may be good points on both sides, and the sheriff makes an order for divorce, but says for the pursuer, it's pursuer and defender, whichever spouse takes the case, it's the pursuer, the other party, the defender. Between pursuer and defender, the pursuer has made these points and is entitled to these craves, requests that they've put down. The other spouse, the defender, was wrong about some things, but right about others.
So therefore, what I propose to do is grant the divorce, plus these certain other financial orders, and each party will be liable for their own expenses. And that, probably the majority of matrimonial cases, that's the way it ends up. Or the sheriff could even say, well, I'll award the pursuer half of their costs against the defender, which is still a lot of money to find.
But somebody has to pay a huge lot of money to the lawyers for a court case where there is stuff in dispute. If it's just the divorce, if we've had the separation agreement, we've negotiated it all successfully, and signed it all off, and all we need to do is the actual divorce after the year or the two years. That's a very limited thing.
It's called the simplified procedure, and it literally is filling up a form, signing it, getting the lawyer to counter sign it, sticking it into the court with a fee. Nothing happens for three weeks, and then you get a divorce. And that is hundreds of pounds at worst, and it may be part of the overall costs of the separation agreement.
So from that end of the scale, it can go to tens, hundreds of thousands of pounds in legal costs.
Angela: Wow. So you should really negotiate before you get to that stage.
Austin: Definitely.
Angela: And one other thing before we go on to a bit of a summary. What about pets?
Austin: Ah!
Angela: Pet prenups seem to be a thing now.
Austin: Yes, and so they should be. Pets, with some clients, I of course won't name, they almost work on the assumption that children are property to be argued and fought over and kept and possessed. Whereas pets are like human beings and have every right and privilege imaginable.
That is the way a lot of people think. The law is 180 degrees away from that. Children are not property.
They are their own people.
Angela: And indeed, we've done a whole episode about this.
Austin: We have, as we have spoken about before. Children can be a party in the case, can have their own lawyer or their own safeguard and all those things. Pets are property.”
I'm sorry, dog and cat owners. Pets are, in England, they call them chattels. In Scotland, we call them movable possessions, movable property.
So they conform to the rules. For example, if I have a car before I get married, and I get married, and it doesn't work out, and I get divorced, I still keep my car. It was my car before the marriage.
It's the same with pets. If I brought a lovely dog, cat, beloved of me, into the relationship, and my partner falls in love with a dog or cat, and we think of him or her as a little member of the family, and then when the family breaks up, my ex is heartbroken because she feels that the cat responds better to her, or she feels she's spent her money on the vets, or she's the one that remembers to feed it or takes the dog out for a walk, so she should get it. Now, I'm afraid the courts are not as sympathetic as they might be, and they've got to be practical.
It is a piece of property. I have seen cases where the pet is given into kind of joint ownership and the parties are told, well, you have got to sort out how you share the animal or how you see it, whether it has two homes or you come to visit it. That's kind of up to you, but we're not really going to descend to a decision on what days you get the dog and what days you get the cat.
But there is no doubt that in the negotiation, or if it goes to court, that there will be more heat and light arguing about who gets the pet than about almost anything else. A pension is just a sum of money. A cat is a member of the family, but the law doesn't support that.
To the law, it is a piece of property.
Angela: OK then, so I think we've covered quite a lot of ground here. What about a wee bit of a summary? What are the steps if someone is considering a divorce? How long does it take, and how much does it cost, would you say?
Austin: Right, if you're considering it, speak to somebody. Don't get caught in a kind of silo or whirlpool of loneliness and angst. Because although we've talked about the technicalities, at the heart, it is a sad, sad thing.
It can be distressing, you can be afraid, you can be in emotional or indeed physical pain. There's so many personal, awful aspects to it that need to be looked after. If you think it's not going to work, that's the point at which to consider getting advice, confidential, free advice from a solicitor, and that will be the trigger for things moving forward if they're going to.
How long will it take? Piece of string. It won't take anything less than three months, four months.
And that's because there are so many practical things. If you have a house, if you have a pension, if you have children, particularly, then it can take a long time to get your head round it, and also a long time to articulate what you want, and then deal with what the other person wants, and kind of negotiate through the undergrowth with that. It can take longer than that, but it shouldn't take longer than a year to get the whole thing out of the way, unless it's a contested court, actually it can take longer than that.
But it should be between, I would say, three months and a year. How much does it cost? Bargain basement, if you agree most things, and this is one of the reasons you're encouraged to speak to your partner and agree whatever you can agree, so that the less the lawyer has to do, the less will be the cost.
I can't imagine a separation agreement being done for less than a thousand pounds. You can then start going up two, three, four, five thousand, even a bit more if there's a number of assets, or if there is disagreement on valuation. Say there's a business that one of you runs, or you both run, what's that business worth as a matrimonial asset?
It might take some time to sort that out. If it goes to court, as we've said, maybe start at ten and start going upwards from there in terms of costs. Build in the costs to the whole thing, because if your assets are worth X, then you may say, well, in order for peace of mind and a future and a way forward that's sensible, I'm prepared to throw three, four, five thousand pounds at it. because that's a good investment.
If I do nothing, if I don't engage a lawyer, or I don't get into the process, I will be left in this miserable, unhappy situation for everybody. So like everything else, if you're going to improve your house, you pay thousands of pounds to the joiner. If you're going to improve your health, you pay thousands of pounds to the health club.
If you're going to improve your life because your marriage or relationship was broken down, you're going to have to invest in that. And that brings in the lawyers.
Angela: So try and be amicable then, if you can?
Austin: Amicable saves you money. The more to fight about, the more expensive it is, the more upsetting it is, the longer it's going to take, and the worse is going to be the effect, not just on you, but on your ex, on your children, on your wider family, on your friends, because they'll get fed up hearing you talk about the misery, and they might get an impression of you rather than of your ex by the way you talk about the way you're prolonging things or not agreeing things. Just be objective be amicable, take advice, listen to reason, and take a breath before saying anything or deciding anything.
Angela: Okay, Austin, thanks again.
Austin: My pleasure.
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