Whether you are married, in a civil partnership, or living together, if you decide to separate it can be a difficult time - however amicable you wish it to be. Our family lawyers can deal with your separation sensitively and in a spirit of co-operation - but at the same time we will advise you on the best course of action for you.
Below we have outlines some of the most commonly asked questions about:
Separating from your spouse or civil partner
Dissolution of a civil partnership
What are the main financial issues arising on separation?
There are two separate financial issues to be sorted out. One is the question of ongoing financial support including child support. The other is the question of how to divide the property accumulated during the course of the marriage or civil partnership. The principle is that matrimonial or partnership property should be divided fairly between the spouses or civil partners, but the definitions are complex and every case is different.
Written Separation Agreement – why bother?
Most couples want to end their relationship with the minimum of acrimony. We try to negotiate agreement for you on financial issues, always taking account of what you are entitled to from the assets (property, investments, savings, pensions) you both own. Your partner will require separate legal representation. If agreement can be reached we will draw up a legally binding separation agreement which you can both sign. This allows the divorce or dissolution of civil partnership to proceed immediately following the necessary period of separation without any implication of blame and with a minimum amount of difficulty and expense. Unfortunately, if there is a breakdown in negotiation, or one
party refuses to engage in negotiation, the matter may require to be determined by a court.
What financial information is usually required?
Details of your and your partner’s:
Who has the right to stay in the family home?
Normally both husband and wife or both civil partners have occupancy rights in the family home. It usually does not matter which of the couple is owner or tenant. Both have the right to remain in the house. If there is a risk to the physical or mental welfare of one of a couple or any children caused by the behaviour of one of the parties then the court can be asked to exclude the person causing the risk from the family home. While a couple is married or in a civil partnership neither can automatically insist that the house is sold. In a divorce or dissolution court action one of the couple can ask the court for continued occupancy rights or transfer of title or tenancy as part of the overall financial settlement.
Who can ask for financial support?
When a couple separate and one is working and the other is not or is on a lower income, the one who is worse off may ask their partner for financial support called aliment (maintenance), usually paid weekly or monthly. The amount depends on the needs and resources of both households. The one who has left the family home can be asked to pay towards specific outgoings to do with the house, for example, mortgage repayments. If children are involved, also have a look at Children of Separated Parents.
What is "a cohabitee"?
A person who lives with another person as if they were husband and wife, or two persons of the same sex who live together as if they were civil partners. Those simply sharing a flat, for example flat mates, are not cohabitees.
Written Cohabitation Agreement – why bother?
Whether you already live with your partner or are considering moving in together, you may wish to discuss the financial implications with a member of our family law team. To avoid financial uncertainty in the future, you should consider a written Cohabitation Agreement to provide for division of your assets should your relationship come to an end. It is also a good idea to make a will.
What are a cohabitee's rights on separation?
Provided an application is made to court within one year of the date on which the cohabitation ended, a court may order a capital sum, which can be paid in instalments, to be paid by one cohabitee to the other. There is no provision for the transfer of any property. The legislation in this area is fairly complicated. The court must consider whether any economic advantage or disadvantage has been gained or suffered by either party and then balance up any advantage or disadvantage in determining whether or not a capital sum is due to the applicant. Cohabitees have no legal obligation to pay maintenance to each other if they separate, although there is an obligation to maintain any child(ren) of the relationship. The court can make an order to pay a specified amount in respect of the future economic burden of caring for any children of the relationship.
What are a cohabitee's rights if the other cohabitee dies?
The surviving cohabitee can make a claim on the deceased’s estate provided the deceased does not have a Will and they were living together immediately before the death. The claim has to be made to the court within 6 months of the death. The cohabitee’s claim will be considered after any claim of the deceased cohabitee’s surviving spouse
or civil partner. The court will also have regard to any claims made on the estate by the deceased’s children and to any benefit the surviving cohabitee has received or will receive, for example from joint life policies. The maximum amount that can be claimed will not be more than the amount which would have been available to a surviving spouse or civil partner. The court can order payment of a capital sum or the transfer of property from the deceased’s net estate. Under landlord and tenant law there may be rights for a cohabitee to apply to transfer a tenancy of the family home, or to defend eviction proceedings.
What are the grounds for divorce?
All divorces are granted because of the irretrievable breakdown of a marriage but there are only certain ways that can be proved. The law outlines four circumstances which can satisfy the court that the marriage has broken down irretrievably - the party who wants a divorce has to prove that (1) the other spouse has committed adultery or (2) the other spouse has behaved unreasonably; (3) the couple have been separated for one year and the other spouse consents to the divorce; (4) the couple have been separated for 2 years, in which case the consent of the other spouse is not required. In each circumstance, there must be evidence from someone other than the couple.
Will I have to appear in court?
Most divorces are granted by the court without anyone having to appear in court. If both you and your spouse are in agreement about the financial aspects and the care of any children, then the divorce can be dealt with by a paper process which involves swearing affidavits to provide the necessary evidence. Even if spouses disagree at the outset of a separation, negotiations can usually reach a compromise to avoid a disputed court action (see our Factsheet Separating from Your Spouse or Civil Partner). Once agreement has been reached there is no need to appear in court. However, if there are issues about money or about children which require a decision from the court, then it is likely that you will have to appear in court to give evidence. If the court fixes a Child Welfare Hearing in relation to children of the marriage, then both parents must attend the hearing.
What is a Child Welfare Hearing?
A Child Welfare Hearing is a hearing conducted in court in private. All the adults involved must attend and this should be an opportunity for all issues about children to be discussed. Children do not usually attend, but they will receive a form asking them to indicate their own views and wishes. Our family lawyers can advise you about procedures in your case.
What is a simplified divorce procedure?
Where there are no children under 16 and no financial issues to be resolved, a simpler and cheaper divorce is available after one year if both spouses want to be divorced or two years if only one spouse wants to be divorced. In that type of divorce it is not necessary to involve a witness.
What are the grounds of dissolution of a civil partnership?
There are two grounds of dissolution in Scotland. The first ground is that an interim transgender recognition certificate has been issued to one of the civil partners. The second ground is that the civil partnership has broken down irretrievably. The circumstances which can satisfy the court that the civil partnership has broken down irretrievably are: the party who wants a dissolution has to prove that (1) the other civil partner has behaved unreasonably; (2) the couple have been separated for one year and the other civil partner consents to the dissolution; (3) the couple have been separated for 2 years, in which case the consent of the other civil partner is not required. In each circumstance, there must be evidence from someone other than the couple.
Will I have to appear in court?
Most dissolutions are granted by the court without anyone having to appear in court. If both you and your civil partner are in agreement about the financial aspects and the care of any children, then the dissolution can be dealt with by a paper process which involves swearing affidavits to provide the necessary evidence. Even if civil partners disagree at the outset of a separation, negotiations can usually reach a compromise to avoid a disputed court action (see our Factsheet Separating from Your Spouse or Civil Partner). Once agreement has been reached there is no need to appear in court. However, if there are issues about money or about children which require a decision from the court, then it is likely that you will have to appear in court to give evidence. If the court fixes a Child Welfare Hearing in relation to children of the relationship, then both partners must attend the hearing.
What is a Child Welfare Hearing?
A Child Welfare Hearing is a hearing conducted in court in private. All the adults involved must attend and this should be an opportunity for all issues about children to be discussed. Children do not usually attend, but they will receive a form asking them to indicate their own views and wishes. Our family lawyers can advise you about procedures in your case.
What is a simplified dissolution procedure?
Where there are no children under 16 and no financial issues to be sorted out, a simpler and cheaper process of dissolution is available after one year if both civil partners want the civil partnership to be dissolved or two years if only one partner wants the dissolution. In that type of dissolution procedure it is not necessary to involve a witness.
