Family Law Save your energy for the good times

Whilst some people choose to proceed without taking legal advice, the most important thing you can do following separation is make decisions on a fully informed basis.  Consulting with a specialist family lawyer is essential to doing this.

When it comes to any children of the relationship, the best course of action is always to try to come to an agreement as to when they will see each parent.  A healthy loving relationship with both parents should be encouraged.

If this cannot be agreed, mediation from a specialist family mediator may assist in breaking down barriers preventing parental agreement.  Mediation can be a positive step by both parties in committing to work together in the interests of any children, and setting aside their differences for that purpose.

As a last resort, a court action can be raised where a judge or sheriff will be asked to determine what is in the best interests of each individual child and the parties will be ordered to implement and adhere to that decision going forward, whether they are happy about it or not.

The starting point to any entitlement on divorce is assessing the extent of the ‘matrimonial property’.  Matrimonial property is all property acquired between the date of marriage and the date of separation, subject to any gifts or inheritances from third parties which have not changed form during the marriage.

Once all the individual assets have been identified, they require to be valued at the date of separation.  Thereafter, the liabilities are deducted from the assets leaving the net ‘matrimonial pot’.

In Scotland, matrimonial law provides for each party receiving a ‘fair share’ of the matrimonial pot, a fair share in the first instance being considered an equal share.  There are, however, arguments which can be advanced to justify an unequal division of the matrimonial pot, for example, if one party sacrificed their career to look after any children of the marriage, or where pre-marital property was used to purchase an asset during the marriage.  Consulting a family lawyer allows you to explore these issues and receive legal advice specific to your circumstances.

In Scotland, divorce is the final step of the separation process.  Divorce is granted by a court when the court is satisfied all financial and child related matters arising from the separation have been dealt with.  In the majority of cases, this will be achieved by way of negotiation and agreement between the parties, but if this is not possible, a court will be asked to make a decision on these issues.

If matters are agreed and both parties consent to the divorce, the court can grant divorce one year after the date upon which parties separated.  In absence of consent, the parties must wait until two years after the date of separation, following which consent is not required.

A party may raise an action for divorce within the first year of separation if the action is based on the other party’s unreasonable behaviour, or adultery, but again, the court will expect the finances and child issues to be resolved before granting the divorce.  This behaviour will also require to be corroborated by a supporting witness before divorce is granted.

It is always considered better, if possible, for the parties to use one of the time-based grounds.  Separations are emotive enough in themselves, without the grounds of divorce in the court action adding further fuel to the fire.

It is challenging to provide accurate fee estimates at the start of the process as often there are so many unknowns as to how a case may progress.  Often this can be very different from how it may be projected at the outset. After the initial meeting with the solicitor, the anticipated fees and outlays will be set out as clearly as possible, together with the charge out rates for the individuals who will be working on the case, to provide clarity going forward.  Where possible, we can discuss a fixed fee; otherwise, we bill monthly so clients can keep on top of their fees and indicate at the earliest opportunity if there is a difficulty with making payment going forward.  This, so far as possible, is intended to keep fees in manageable chunks, rather than an unknown bill at the end of the matter.