|
The following FAQs apply only to Scotland
What is
a Separation Agreement?
A separation agreement is a
document that outlines the divison of assets and child arrangements. the
contents are agreed upon by both parties.
All financial
arrangements and arrangements for any children must be agreed upon by both
parties before any divorce proceedings can begin.
Couples in
Scotland will usually legally separate by means of a separation agreement.
This is often entered into when the couple initially separate, to regulate
their financial affairs and the care arrangements for their children. It's
common for the couple to come to an agreement regarding the division of
their assets and for payment of financial support for the spouse and
children and indeed for the division of assets to take place at, or shortly
after, the time they separate. Thereafter, if the parties do come to
divorce, the divorce action can proceed on an uncontested basis.
Such separation agreements are normally registered in the Books of
Council and Session located in Edinburgh; this can be done simply by
writing a letter to the Books of Council and Session with a copy of the
signed agreement and asking for it to be registered. There is a fee payable
depending on how many pages the agreement extends to and how many copies
are required; once registered, the agreement has the same effect as a
divorce court decree and can be enforced.
There is only limited
scope for changing the terms of a registered agreement. For example, it's
possible to vary the arrangements made for the care of the children and to
vary the arrangements made for the payment of maintenance for a spouse
and/or children if there is a change of circumstances. Otherwise the
provisions of the agreement can only be challenged if it can be shown that
they were not fair and reasonable at the time they were entered into.
Separation Agreements were previously (and on occasions now)
referred to as Minutes of Agreement
Do I need
a solicitor to draw up my SA?
It is highly
advisable that proper legal advise is sought from a family law solicitor -
Separation Agreements can be very complex documents. It is possible for a
couple who are in complete agreement over the financial division and child
arrangements to draw up their own SA, and you can download SA templates (ie
from Lawpack), which are then completed and submitted in the usual manner.
However, if you are unsure about any aspect/clause within the self-drafted
SA, seek proper legal advice, as there is very limited scope to change any
clause after it becomes a legal document.
What if we cant agree?
If negotiation
between the 2 parties are proving fruitless, then there are a number of
options open;
(1) - negotiation through both parties' solicitors
(2) - collaborative law when both spouses meet with your respective
solicitors and work together around the table.
(3) Mediation - a
mediator would work with both parties to come to an amicable agreement
The final option is having the Courts decide upon the financial
split/child contact issues - however this is very costly, both in monetary
and stress terms. Only around 3% of divorcing couples in Scotland end up in
the courtroom for this.
What should I
consider when thinking about a SA?
There are four
steps which should be considered before making a decision about the
financial arrangements. Please note that matrimonial property is that which
is accrued between the date of marriage and the date of separation.
1. Establishing the date of separation on which the married couple
cease to cohabit as man and wife.
2. Identifying all the assets
owned jointly or individually by a couple at the separation date including
the house, furnishings, a car, pensions, savings and investments and any
outstanding liabilities (mortgage, car finance, personal loans, credit card
debts etc) in existence on the date of separation.
3.
Determining any non matrimonial property by looking at the individual
assets and seeing the circumstances in which they were acquired. Assets
owned by either party before the marriage or those gifted or inherited are
not matrimonial property.
4. Valuing matrimonial assets as at
the date of separation, for example, by providing statements for savings,
asking insurance companies for surrender valuations of endowments and
pension providers for the Cash Equivalent Transfer Value. Endowment
policies and pensions started before marriage are apportioned for the years
of the marriage. It's best to have agreement before having the house valued
by a Chartered Surveyor. The liabilities are deducted from the assets to
provide the net value of matrimonial property.
Do we have to have a Separation Agreement?
If there are NO outstanding financial matters, assets to be divided
or child contact issues, then a signed and witnessed affidavit stating this
will be suffice for the Court.
|
Forum 
Scotland 
