Family Law Frequently Asked Questions

Below are answers to some of our most frequently asked questions about Family Law issues.

What is a separation agreement and why is it preferable to just raising a divorce action?

Relationship breakdown is a distressing and painful experience, having a huge impact on both your life and that of your family. Issues such as residence disputes, parents’ contact with children, and the impact on the parties’ financial affairs arise and you will understandably want to know the financial and practical consequences of any decisions you are considering making. At this time, emotions may be running high and it can be hard to keep hurt and anger out of negotiations. Our experience is that negotiation is generally the best way forward. We can assist you by entering into discussions with your partner’s solicitor with the intention of reaching an agreement covering all your concerns, rather that launching immediately into litigation. A separation agreement that covers all the relevant matters can make the transition following the breakdown of a relationship smoother, easier and less expensive. Our family law team at Mitchells Roberton are experienced, sympathetic and practical solicitors who can bring objectivity, guidance and support to you throughout your separation, avoiding unnecessary heartache and dispute.

What if we can’t agree?

Where an agreement cannot be reached in relation to any of the aspects of your separation, litigation may be inevitable. Where this is the case, we can represent you in a court action, and help you through this troublesome time. This could include raising divorce proceedings, or proceedings relating to the care and upbringing of children.

What are the grounds of Divorce or Dissolution of a Civil Partnership?

Before a Divorce or Dissolution can be granted it has to be shown to the Courts that you and your partner are no longer able to sustain a relationship on a permanent basis and that the marriage or partnership has broken down irretrievably. There are four main instances that demonstrate an irretrievable breakdown of marriage:

Where you have not been living as a married couple or as civil partners for at least one year, you both agree that there is no prospect of reconciliation then you can apply for a Divorce or Dissolution;
Where you and your partner have been living apart for at least two years, you can apply for a Divorce or Dissolution without your partner’s consent;
Where there is evidence of adultery, this is usually sufficient grounds for Divorce;
Where there is evidence of your partner’s unreasonable behaviour. The Courts apply a broad definition as to what constitutes unreasonable behaviour.

There is no minimum time requirement for a couple to have been separated before applying to a Court for Divorce on the basis of adultery or for Divorce or Dissolution on the grounds of unreasonable behaviour.

However, before a Court will consider granting a Divorce or Dissolution, notwithstanding that it has evidence of the irretrievable break-down of your relationship, it will need to know that all other important matters have been addressed, such as the care and welfare of any children involved and any outstanding financial issues. If you have been unable to come to an agreement on any of these matters, the court will make a decision for you as part of the divorce action and this decision is then legally binding on both parties.

What happens to the children?

This is one of the most important issues arising from a separation and it is sometimes very difficult to find an agreement acceptable to both parties. Courts are generally reluctant to get involved in decisions about how children are to be taken care of, but they will intervene if parents cannot agree. The Court’s decision will be made to protect the best interests of the child and that decision is then legally binding on both parties.

In terms of maintenance for children (known as ‘aliment’), both parents are obliged to financially support their children until the age of 18 (or 25 if they are in full time education). This is dealt with either by way of agreement or through the Child Maintenance Service (the successor of the Child Support Agency) and the Courts generally do not get involved.

What happens to the assets and/or debts of the relationship?

Matrimonial property is generally all assets accrued by the parties, either individually or jointly, between the date of the marriage and the agreed date of separation, less any debts accrued during this period. This does not include any property acquired by way of gift or inheritance during the marriage. Underpinning Scottish Divorce Law is the premise that the net value of the matrimonial property should be shared fairly between the parties of the marriage and that, as far as possible, financial agreements should provide for a ‘clean break’. The court can look at a number of factors in deciding what is considered to be fair and our team can advise you on how your particular circumstances may affect such a decision. In practice, it is rare that a Court will decide the asset split and financial arrangements – only about 3% of cases are decided in court, the majority being negotiated via the solicitors or between the two separating parties.

Have more questions about Family Law issues? Go back to the Family Law page for help from our expert team.

Need more help for yourself or your family? Visit our Services for Indviduals page for details of how our experts can help you.