Children where they live now and in the future Maintenance of Spouse Procedure for reaching a negotiated agreement Time it takes to reach an agreement Minute of Agreement Date of Separation and its relevance called in law the Relevant Date is the date when the parties finally and actually separated. It can be sometimes be disputed by the parties especially if they have drifted apart over time rather than had a major fall-out.
Whilst it is usually the date when one spouse leaves home, it sometimes occurs even though both start to live separately under the same roof. Matrimonial Home Both parties are entitled to remain in the house until such time as the marriage is legally brought to an end.
Even if the home is owned by one alone, the other is legally entitled to remain there with occupancy rights. Life within the home can become very difficult once the parties have decided to separate. However it does not mean one can force the other to leave. Should one of the parties decide to leave and live elsewhere then they will still be allowed to have access to the property within reason. Even if one partner say the sole owner of the house were to attempt to sell the house while the other partner remains living there the purchaser cannot force the spouse to move out as the remaining spouse has enforceable occupancy rights, so it would be almost impossible for such a transaction even to get off the ground, and thus the threat of selling the house over the head of a spouse is an empty one.
Should there be an issue by one spouse on the other which would make it impossible for one of the parties to remain in the property, then exclusion orders can be sought allowing the under threat party to remain in the property — again no matter whose name the house is in.
Although one spouse may move out they do still have a right to enter the property. This could only be countered if there was an interdict or exclusion order in place excluding one of the spouses. Similar rights exist now for unmarried cohabitees and civil partners. As is usual in the law there are some exceptions. Where one of the parties inherits either property or money during the marriage from another person such as their parents then this is not classed as Matrimonial property.
The same can be said for a gift received from a third party e. However should the inherited or gifted item be money and the party then buys an item with it for use within the marriage e. Definition of Matrimonial debts Unlike matrimonial assets these for some purposes remain with the individual who signed up for the debt originally. Joint debts such as the mortgage are equally split between the two parties.
However there are some exceptions. For example if the wife takes out a loan for the renovation of the family home bathroom, then although the debt is in one name, the loan was for the improvement of a matrimonial asset and for the enjoyment of both parties, hence is matrimonial.
Like the assets the debts required to be vouched. When it comes to negotiating a settlement, debts even in the name of one spouse alone are shared if the debt was for matrimonial purposes — holidays, home improvements, general housekeeping and more. Process of Vouching All assets and liabilities i. If an asset is stated as being inherited some type of evidence will be required to show the other side that it was inherited i.
Fair Division or fair sharing. The law provides for sharing the matrimonial property or its net value fairly between the two parties. This does not always mean that couples will split items in half. What it means is that the net value of matrimonial property will be calculated and then the value split — usually equally.
Where one party owns more of the matrimonial property than the other, then a balancing payment may be made from one to another. Every relationship is different and the calculations are different, but the principles are universal. Unequal Division There are many reasons why an equal division of the matrimonial property would be unfair and your solicitor will assess your circumstances to determine whether your set of circumstances would warrant the solicitor to argue for an unequal split in your favour.
The following considerations may be taken into account: The common scenario is when the woman has taken a break from her career to raise children. The courts now take this into account if relevant. The courts will look at transferring the property which allows the children to remain in their own home but may also look at a periodical allowance regular maintenance for a limited period. If a periodical allowance is agreed then this would normally only continue until the child reached the aged 16 years.
This specifically aimed at the older woman who has been at home for years and has very limited skills or experience to offer an employer. The allowance would help the spouse to retrain and gain employment.
This allows a periodical allowance for a reasonable time and is the only one which may continue indefinitely. Children where they live now and in the future Please note that although you may be familiar with the words Custody and Access, some years ago these were replaced in Scottish law with the words Residence and Contact, which mean more or less the same things respectively.
It is difficult not to involve any children in arguments. However parents need to remember that there are two parents both of whom need to put their own feelings to one side and make arrangements which take into account what is in the best interest of the child. Most couples separating are able to arrange and agree the care of the children — where they will live and how often the non-resident parent will have contact. Such agreements are either made by the couple themselves or with the help of solicitors, or other mediators.
Sometimes these arrangements are then set out in a minute of agreement such as described in earlier headings in this note. Dependent on the age of the children their views may be taken into account. The older a child the more say he or she has in where he or she lives and how much contact with the other parent there is. The arrangements made at the time of separation may very well require to change as children get older and they start school or become teenagers and this can be built into the Minute of Agreement.
Maintenance of Spouse Aliment or maintenance is the payment that arises out of the obligation to reasonably support a husband or wife and any children from the marriage. This support needs to be reasonable and takes into account the needs and resources of both parties, the earning capacity of the parties and any other relevant circumstances. It does not take conduct into account.
With regard to Spousal maintenance, the courts are reluctant to grant periodical allowance as they feel that clean break between couples and separating is preferable to having one party dependent financially on another even after divorce. They are more likely to make arrangements to transfer capital or some other asset. However in some circumstances see above a periodical allowance will be granted by the court or negotiated between the parties.
However an order can be sought from the court should an agreement not be reached. An order cannot be sought should the Child Support Agency be involved in the matter. The CSA website has an online calculator which allows a very rough guide to what should be paid by the absent parent.
The payments are made until the child reaches the age of 18 or 25 if still in full time education It is not appropriate to have the same solicitor for both parties due to conflict of interest. Initially each party will value the matrimonial assets including such assets as pensions and any businesses owned by either spouse and liabilities debts, loans, financial obligations owed in their sole or joint names.
The matrimonial home requires to be valued and a redemption figure for the mortgage obtained. This can take some considerable time especially when other agencies are involved. Once both parties have a clear picture of the value of the assets and liabilities then they sit down with their solicitor and discuss how they wish to proceed, and whether there are any grounds for an unequal division. Once the solicitor has taken instructions then negotiations can commence.
The best possible outcome is for an agreement to be reached by the parties, to avoid having to go to court. Once an agreement is reached then a Minute of Agreement is drafted by one of the solicitors which will then be passed between the solicitors until both sides have revised and negotiated, and are happy with its terms. Time it takes to reach an agreement This varies from case to case. Some parties can arrive at an agreement very quickly and therefore the process can take a few short months.
However for other parties it may take months and even years to reach an agreement. The Minute of Agreement Once a final draft of the document detailing the terms agreed by the parties has been reached then both parties will be required to sign the document before witnesses the solicitor can witness, and often does.
It will then be sent to the public register called the Books of Council and Session in Edinburgh for registration and you will receive a copy for your records. Litigation Court action In some cases parties will reach an impasse and it will require one party to raise a court action in the local Sheriff Court, or the Court of Session the superior civil court of Scotland, which sits in Edinburgh in order that the Sheriff makes a ruling and impose terms.
This is an expensive and lengthy process which as well as increasing the cost and length of the process increases the stress and disharmony between the parties. Costs The costs of a divorce or dissolution of a civil partnership can vary considerably, depending on whether it is defended or undefended, and the amount of work that solicitors have to do. The sheriff decides who has to pay the costs of the action, unless the parties have agreed how to meet the legal costs.
The court can also decide that each partner has to pay their own costs. Should an amicable agreement be reached then each party will be liable for their own legal fees and any outlays incurred.
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