“the Money is in an account in my name, it is mine, he/she doesn’t have a claim”
If funds have been saved during the period of a marriage from income derived during the period of the marriage, usually those funds form part of the matrimonial funds which fall to be shared between the parties in a separation. It is not sufficient to say that because one party saved all of the funds they are property retained by that spouse.
“the debts are in his name, they are nothing to do with me”
Debts which arise during the course of a marriage are likewise usually regarded as matrimonial debts. The circumstances surrounding the debt including the purpose of the debt would be considered. Only in exceptional circumstances would one party be solely responsible for such debts. However, if one spouse squanders the assets through gambling, drug addiction, alcoholism or some other way there may be an argument that those debts which arose as a result of such dissipation should not be shared between the spouses.
“I never get to see my children so I am not paying maintenance for them”
Maintenance for children is due to be paid regardless of whether one parent has contact or not. A parent can be deprived of contact if that contact is shown not to be in the best interests of the child. The issues of maintenance and contact should be kept quite separate although they can become blurred.
“I am not paying maintenance to her, I will pay maintenance for my children into an account in their name”
Maintenance is payable to a parent who has the care of the children. It is not open to the payer to decide how to make the payment or on what the payee should spend the maintenance money on. It is an amount which is paid regularly so that the parent with care of the children can provide for them. It is not to be seen as a payment for the other spouse. Without maintenance, it is the children who suffer.
“My husband/wife caused the split so they should get less money”
Scotland has a “no fault” system of divorce. This means that regardless of the reasons for the breakdown of the marriage, this is not taken into account when considering the fair sharing of the assets. Only in exceptional circumstances will the conduct of the spouses form part of the decision making process as to the division of the assets.
“pre-nuptual agreements are not valid in Scotland”
Courts are reluctant to interfere with a contract which has been signed between spouses prior to marriage. The court would have to hear strong argument before it would take a decision to render such an agreement invalid. If the court felt there was a significant prejudice to one spouse, if they believed that non-disclosure of the true position was not made prior to entering the agreement or if they felt one party had been forced to enter into it, they may set aside part or all of the agreement.
“children always end up staying with Mum”
Perhaps in days gone by that might have been the case, but societal changes have meant a changing of attitudes in connection with residence and contact with children. Courts must not make an order in connection with a child that is not in that child’s best interests. The child’s best interests are the courts paramount consideration when it comes to making orders relating to children.
“everything is agreed and we want it put in writing”
You should only enter into and agree the terms of an agreement with your spouse once you have taken legal advice. A solicitor’s job is to allow a client to make an informed decision. The only way someone can make an informed decision is to have all of the information in front of them when they decide. Therefore, if there are assets, such as pensions, which have not been valued, a client is not in a position to make an informed choice. Once an agreement is signed, it is then very difficult to go behind the terms of an agreement. If you sign an agreement without legal advice, you are expected to have known what you were signing and you are bound by its terms.
“we want to save costs, everything is very amicable and we want to see a solicitor together”
This is not possible as solicitors have professional obligations, such as not to act in a conflict of interest situation. There is a conflict of interest between spouses who separate. Therefore, solicitors cannot see them together. Each should be separately represented.
“I can get divorced and then deal with the assets”
In Scotland once you are divorced you lose the right to make any claims. Therefore all assets/debts must be dealt with before you get divorced.
“everything we own is up for sharing on divorce”
In Scotland it is only the assets and debts which were derived during the period of the marriage which are considered for sharing. In a small number of cases, assets acquired before marriage, on the basis that they were to be used as matrimonial assets, are considered. Such assets do not include assets which were inherited or were received as gifts from third parties. However, it is not as black and white as that. It depends what the spouses have done with the gifts or inheritances during the marriage.
“the legal costs will be extortionate”
Solicitors don’t have any magical powers to make people agree. The only reason legal costs spiral is because spouses argue with one another and cannot agree matters in connection with assets or children. The more you disagree, the higher the costs and the bigger the impact on the family as a whole. This should be avoided at all costs. If you wish to keep costs to a minimum it is worthwhile remembering that you will have to negotiate, understand that there are no winners or losers and neither of the spouses will receive what they think they are entitled to. All negotiations require an understanding of the other viewpoint and a willingness to negotiate to bring about settlement. Remember, what is reasonable to one spouse may be regarded as completely unreasonable by the other.
Sally Swinney, Senior Partner, Blackwood & Smith