FLB Booklet V2.Indd 1 10/11/2011 12:24 Contents
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tHe family law association Guide to separation and divorce in scotland m familylaassociation FLB booklet v2.indd 1 10/11/2011 12:24 Contents INTRODUCTION: Breaking up is hard to do 3 EDITOR ROGER CHAPTER 1: Do I need a solicitor? 4 MACKENZIE, MACLAY MURRAY CHAPTER 2: The family home 7 & SPENS, GLASGOW CHAPTER 3: Children 10 CHAPTER 4: Domestic violence – interdicts and exclusion orders 14 CHAPTER 5: Aliment and child support 18 CHAPTER 6: Division of matrimonial property 22 CHAPTER 7: Divorce 30 CHAPTER 8: Cohabitation 34 CHAPTER 9: Common myths and misconceptions 38 CHAPTER 10: Agreements 40 MEMBER LISTINGS 43 m familylaassociation FLB booklet v2.indd 2 10/11/2011 12:24 3 IntroDUCtIon Breaking up is hard to do Graham THE ending of a relationship is available. Negotiation, mediation, Harding, always a diffi cult time for those collaboration or arbitration may Chair of the involved. It does not just affect well offer a less expensive and more Family Law the couple themselves but also effective solution than court action. Association children, grandparents, other family There will be practical matters members and even friends. Anyone to consider at an early stage, such as: considering separation should who will look after the children; how therefore take time to fully consider will the mortgage or rent be paid; are its effects before making such a there state benefi ts available; what major decision. fi nancial support does one party owe This easy-to-read guide is to the other? intended to assist anyone whose In the longer term, decisions marriage, civil partnership or may have to be made on the division relationship has come to an end by of property. These can be fraught giving a straightforward outline of with problems and can be diffi cult the law as it stands in Scotland at to resolve, particularly if there has November 2011. It is important to been a breakdown in communication note that family law in Scotland is between the parties. quite distinct from the law in the The Family Law Association has rest of the United Kingdom, a membership of about 350 solicitors therefore no reliance should be spread across Scotland. Many are placed on the information provided accredited by the Law Society of in this booklet as applying elsewhere Scotland as specialists in family law. in the UK. All FLA members are committed Frequently emotions will run to upholding the aims of the high, particularly in the early stages Association and in particular to of a separation. During these diffi cult trying to resolve issues rather than days people can and indeed often do infl ame situations. At the back of this act out of character. That can leave booklet readers will fi nd the names the other party unsure as to what to and addresses of solicitors’ fi rms with do next. One side or other might want members in their area. n to rush to court to seek a remedy. Sometimes that may be the only Further information is way forward, but more frequently i available on the FLA website than not there are better alternatives www.familylawassociation.org FLB booklet v2.indd 3 10/11/2011 12:24 4 Chapter 1 Do I need a solicitor? by Graham NO MATTER how amicable a but they will always Harding, separation may be, there are few suggest that the unrepresented Thorntons, situations in which advice from a party seeks legal advice first. Perth and Chair of the solicitor would not benefit one or In Scotland, unlike other parts Family Law other party. If there are any children of the UK, it is usual to enter into a Association under 16, or if there is any matrimo- binding minute of agreement prior nial property such as the matrimonial to divorce, thus making the divorce home, savings, investments, pen- itself a straightforward and therefore sions or motor vehicles, then you relatively inexpensive procedure. If need to know what your rights and there are no children under 16, and obligations are and be in a position to if all financial matters have been make informed decisions about these resolved, then a party can apply important matters. directly to the sheriff court in their Even in a situation where there are no children and few, if any, assets there may still be issues to be resolved such as financial support or the transfer of a tenancy. Solicitors are there to advise you on the law, to identify issues particular to your circumstances, and to suggest options that are appropriate to your needs. A solicitor can only act for one party in a situation where there is potential for a conflict of interest. It is therefore important that both parties consider consulting their own solici- tor. Where parties have reached an agreement between themselves that they consider fair and reasonable, one party may instruct a solicitor to prepare a minute of agreement to be signed by both parties. In that case the solicitor may write to the other party asking them to sign and return the agreement, FLB booklet v2.indd 4 10/11/2011 12:24 5 area for a divorce using the simplified procedure, provided they have been separated for one or two years In this case the only role for a solicitor would By seekinG advice be to act as a notary public in relation at an early staGe to the sworn affidavit which requires “ after separation, to be lodged with the application. Where there are children under 16, or proBlems can Be where there are financial issues to be resolved Before resolved, the procedures are generally too complex for a lay person to deal tHey Become with on their own and they would major issues therefore be advised to consult a solicitor. By seeking advice at an early stage after separation, problems can solicitor is essential, such as when be resolved before they become major there is violence, intimidation or the issues. Where one party is stronger or ”threat of removal of a child from the more manipulative, there is a risk that country. Here time is of the essence the other party if left without advice and it may be necessary to obtain from a solicitor may be treated less protective measures through the fairly and be left disadvantaged on courts at very short notice. Again, divorce. solicitors who specialise in family law Many Family Law Association work will be able to assess the situa- solicitors are trained in tion, advise on procedures, and take non-adversarial methods of such steps as may be necessary to dispute resolution such as media- protect their client’s interests. tion or collaboration. These methods Although cohabitants now have can sometimes provide parties with some rights, their position is still less outcomes that a court could not secure than married couples. The achieve and can help people retain law relating to cohabitants is still good relations with their ex, which is developing and in many cases the particularly important where there parties themselves will have little idea are children of the relationship. of their rights or obligations. While Sometimes of course, circum- there can be grounds for claiming stances dictate that instructing a a capital sum, the arguments are 4 FLB booklet v2.indd 5 10/11/2011 12:24 6 tHe puBlic may tHink tHat solicitors are “expensive, and it would Be wronG to suGGest tHat cost may not Be an issue. But tHe cost of not GettinG any leGal advice could Be incalculaBle 4 complex and again taking advice always without costs, may allow a from a solicitor in the early stages party to obtain legal advice or ” of the separation may be invaluable. representation who could not There is a short timescale in which otherwise afford it. cohabitants’ claims have to be lodged Enclosed with this booklet with the court following separation or are details of the Family law on death of a partner, so getting early Association members fi rms practising advice is critical. in your area. They tend to specialise The public may think that solici- in family law and any of them will tors are expensive, and it would be be happy to advise you on the issues wrong to suggest that cost may not be raised on separation and divorce. n an issue. But the cost of not getting any legal advice could be incalculable. Further information is Legal aid may be available in some i available on the FLA website circumstances, and although not www.familylawassociation.org FLB booklet v2.indd 6 10/11/2011 12:24 7 Chapter 2 The family home Jackie WHEN couples separate, one of the a solicitor as quickly as possible to Polson, primary concerns for each party is raise court proceedings to ask the Bonar whether they are entitled to continue court to regulate your right to occupy Mackenzie Edinburgh to live in the family home, especially the matrimonial home. Occupancy if they are not an owner or registered rights to a matrimonial home expire tenant of the property. Different rules when they are not exercised for two apply to spouses and civil partners years or more, and on divorce or dis- than apply to cohabiting couples. An- solution of a civil partnership, and it is other question which is often asked is, therefore important that you consult a what right there is to insist on a sale solicitor as soon as possible to ensure or transfer of the family home. that you do not lose your rights. We will attempt to give brief Cohabitants do not have an au- answers to these questions as they relate tomatic right to continue to live in a to each type of couple in this chapter.