Family Law

Whilst no one wants to think about the possible end of a relationship before it has officially started by way of a marriage or civil partnership, it is an unfortunate fact that some relationships do end in separation or divorce. Second marriages and civil partnerships are also far more common now and the parties involved will often have assets which they need to protect, perhaps for children of a previous relationship.  By entering into a pre-nuptial agreement you can:-

• protect your assets accumulated prior to the marriage or civil partnership and
• set out a framework to agree how assets accumulated later should be divided if the relationship ends.

It may sound all very “Hollywood”, but these agreements are becoming more common and Beveridge & Kellas can give you advice on drawing up such an agreement. Contact us now to discuss your options.

If you are setting up home with your partner and want to avoid the possibility of having to go to court to sort out your property and financial affairs on relationship breakdown, you can do so by drawing up a cohabitation agreement. This is particularly important if you are buying a property together or investing money in a property already owned by your partner.
The agreement can cover:-
• How much you have each invested in the property and what should happen to the property if your relationship breaks down or if one of you dies.
• What should happen to other assets on separation or death.
• How bills are to be divided and who pays for what.
We can prepare an agreement for you or give you advice if you have been asked to sign such an agreement by your partner. Contact us now to discuss your options.

BUT you may still have a claim under the Family Law (Scotland) Act 2006
• for payment of a capital sum if you split up
• for payment of a capital sum or transfer of property if your partner has died and not left a will.
There are no fixed rules on how much you should receive and the court has a wide discretion. A capital sum may be payable if one cohabitant gains an economic advantage from contributions made by the other and the other cohabitant has suffered a corresponding economic disadvantage. For example, one cohabitant may have put down the whole of the deposit on a jointly owned property or stayed at home to look after the children to let the other cohabitant progress their career. The Supreme Court has said the Act is about fairness and the court is entitled to take a broad brush approach which compares where the parties were at the beginning of their cohabitation and where they were at the end to decide what settlement would be fair.

Time Limits
There are strict time limits within which court action must be raised:-
• On separation the claim must be raised in court and served within One Year of the date of separation.
• On death of a cohabitant without a will within Six Months of the death.

Early specialist advice is essential in such cases. Contact us now to discuss your options.

• Where the children will live and their contact with the other parent.
• Payment of spousal/partner maintenance and child maintenance.
• Payment of school fees.
• Transfer or sale of the matrimonial home
• Pension sharing
• Division of other property.

These are just some of the matters which can be dealt with in a separation agreement but the couple can include whatever other matters are relevant to them.

The advantages of a Separation Agreement are:
• Control over what is dealt with in the Agreement.
• Certainty of outcome, unlike going to court where the judge has a wide discretion.
• Lower cost than court action.

If you are thinking about separation or are already separated and want to have a Separation Agreement we are here to help and advise. Whether you have already discussed terms of agreement with your spouse or partner and just need help to put it in writing or have no idea where to start on what would be a fair agreement, Beveridge and Kellas can guide you through the process. If a lawyer’s letter proposing a separation agreement has landed on your doormat we can advise you how to respond. Contact us now to discuss your options.

“Quickie” or “D.I.Y.” Divorce or Dissolution

These terms are often used in the mistaken belief that there is some special, quick divorce or dissolution procedure available to parties who are in agreement that their marriage or civil partnership should be ended. This is not so. The only ground for divorce or dissolution is irretrievable breakdown of the marriage or civil partnership (see below).

Simplified Procedure Divorce or Dissolution
This is only available in certain limited circumstances. To use it the couple must
• have been separated for one year where the other party consents or two years where there is no consent.
• have no children of the marriage or civil partnership under the age of 16 years and
• not be asking for financial provision on divorce (see below).
This procedure can of course be used if you have already entered into a separation agreement and there are no children under 16.

Ordinary Procedure Divorce or Dissolution of Civil Partnership
Most divorce actions are raised in the Sheriff Court local to where the parties live. Cases which involve high value assets or complex legal issues will usually be raised in the Court of Session.

If you are not asking the court to decide on financial matters or child issues (see below) or you already have a Separation Agreement (see above) the divorce will generally be undefended and will usually be granted within a couple of months.

If you and your spouse/civil partner cannot agree about property, money or child issues then the action will take longer depending on the particular circumstances of your case.
Even though an action starts out as defended, parties may agree a settlement of the property, money or child issues at any time during the case, up to the point when it goes before the judge for evidence to be led and a decision made by the court on the disputed matters (known as a proof). If no agreement is reached, then there must be a proof.

• One year separation of the parties with the consent of the party not bringing the divorce action
It is possible to be divorced on this ground even if you have been living in the same house for part or all of the separation as long as you can establish you have been leading separate lives during that time. This means you have to be able to show that you are no longer living together as husband and wife or civil partners. The defender must consent to the divorce but cannot be forced to do so. This is the most common ground of divorce or dissolution where the separation has been amicable and the parties have managed to reach agreement on child issues and financial matters.

• Two years’ separation of the parties, where there is no consent to divorce by the other party.
Again it is possible to raise a two year divorce or dissolution even if you have been living under the same roof for part or all of the separation, as long as there is evidence of that as set out in the paragraph above. A two-year separation action can go ahead without the defender’s consent, so he or she cannot stop the divorce simply on the basis that they don’t want it to happen.

• Unreasonable behaviour by the party not bringing the action.
The behaviour can be conduct, which is quite obviously unacceptable, such as physical abuse but it is not restricted to that. The law recognises that what one person may consider acceptable conduct in a spouse or partner another will find completely unacceptable. The conduct can take place on a regular basis or be a build-up of isolated incidents. In rare cases, a single incident can be enough. Each case turns on its own facts and we can discuss those with you and advise you on whether you would be able to raise divorce proceedings and if so whether that is the right course of action for you.

• In divorce actions only, adultery by the person not bringing the action.
Adultery is voluntary sexual intercourse between a married person and a person of the opposite sex who is not the marriage partner. Parties to the marriage do not need to be living together when the adultery took place.

In a court action the person raising the action is called the Pursuer and the opponent is called the Defender. Beveridge and Kellas act for Pursuers and Defenders.
• If you need to raise an action we can help.
• If an action has been raised against you, we can advise and put forward your side of the case.
Contact us now for advice.

Spousal/Partner Maintenance After Separation but Before Divorce

After separation but before divorce is granted, in certain circumstances, one spouse/civil partner may claim periodic payments from the other to assist with their day-to-day living expenses. This is called interim aliment. In making such an award the court must have regard to the needs and resources of the parties, their earning capacities and generally all the circumstances of the case.

Spousal/Partner Maintenance on Divorce

‘Periodical allowance’ is the name for weekly or monthly payments ordered by the court to be paid by one spouse/partner to the other after divorce/dissolution This can only be awarded in limited circumstances where there is not enough capital or other property to give the spouse/partner claiming financial provision a fair share of the matrimonial property (see below). It is paid out of the paying spouse/partner’s earnings. The amount can be increased or decreased on a material change in circumstances. Payment can be for a certain length of time or for an indefinite time but always ends on the death or re-marriage of the spouse/partner receiving the periodical allowance.

What is the Relevant Date?

This is the date at which the value of the matrimonial/partnership property is established. It is either:

• the date on which the parties stopped living together as husband and wife/civil partners; or
• the date of service of the court action, whichever occurs first.

This date is of great importance, particularly in relation to assets which may fluctuate or dramatically increase or decrease in value. There are special rules about the valuation date for property which is to be transferred by a property transfer order, which must be either a date agreed between the parties, or the date when the transfer order is made which will usually be the date of the divorce or dissolution. The most common example of this is where one party is asking that the house be transferred.

What is matrimonial/partnership property?

It is all the property belonging to the parties or to either of them at the relevant date, which was acquired by them or either of them during the marriage/civil partnership but before the relevant date (see above).
It includes
• A house acquired before the marriage for use by the parties as a family home, and the household contents.
• Gifts from one spouse/partner to the other
Gifts to both, or either spouse/partner, by third parties and money or other items inherited from a third party are not matrimonial property.

Property owned by either spouse/partner before the marriage (with the exception of the family home, outlined above) is not matrimonial/partnership property although the court can take this into account as a resource of the spouse/partner who owns it, in assessing how the matrimonial property should be divided.

How is the matrimonial/partnership property divided?

The Act says there should be fair sharing of the matrimonial property and the staring point is equal sharing or a 50/50 split of the matrimonial property. There are other principles which can then be taken into account to deal with particular situations. Those are:-
• Taking fair account of economic advantage and disadvantage between the spouses partners. Examples may be one spouse/partner giving up their career to look after children or help the other spouse or partner in their career.
• Making sure the economic burden of caring after divorce for a child of the marriage/partnership under the age of 16 years is shared fairly between the parties. This principle can be used to justify an award of more than half the matrimonial property to the parent with care of the children if the court accepts that that is necessary to distribute the burden of childcare fairly. A parent with care can also be awarded periodical allowance (see above).
• Making sure a spouse/partner who has been financially dependent has financial support to allow them to retrain/get back into work. This can be done by awarding a property transfer order and/or a capital sum and/or periodical allowance. (see above)
• Making sure a spouse/partner who seems likely to suffer serious financial hardship because of the divorce is properly financially supported. This can be done by awarding a property transfer order and/or a capital sum and/or periodical allowance. (see above)

Special circumstances justifying unequal division of matrimonial property

In certain cases there may be factors which justify an unequal split. These can include:

• Any agreement between the parties on the ownership or division of any of the property so for example a Pre-Nuptial Agreement. (see above)
• The source of money or assets used to acquire property where the money or assets did not come from the income or efforts of the parties during the marriage/civil partnership;
• Destruction or squandering or giving away property by either party;
• The nature of the property, the use made of it (including use for business purposes or matrimonial/partnership home) and the extent to which it is reasonable to expect it to be sold or divided or used as security;
• Liability for the expenses of valuation or transfer of property

Special circumstances are not limited to those listed above. Unequal division is not automatic in every case where special circumstances exist. The court must be satisfied that unequal division is justified.

What orders can the court make?
• Capital sum payment
• Property transfer order
• Pension sharing order (splitting the value of one spouse/partner’s pension)
• Periodical allowance
• Incidental order (e.g. for the sale of property)

The court has very wide powers and discretion to re-distribute the matrimonial property in such a way as to achieve a settlement which is justified by the principles above and reasonable having regard to the parties’ resources at the time of the divorce.

Recovering Information and Protecting Assets
In divorce/dissolution proceedings you can obtain orders for your spouse/partner to provide details of their income and other resources.
You can also recover documents from third parties, such as banks, building societies and company registrars, to obtain information about your spouse’s money, bank accounts and shares, etc.
If you have reason to believe that your spouse may dispose of assets to try to thwart your claim for financial provision you can obtain court orders allowing you to arrest (freeze) their bank or building society accounts or funds due to them held by other parties. You can also prevent them from making a voluntary disposal of heritable property (e.g. a house, flat or piece of ground) by a procedure known as inhibition. You can also obtain interdict.

The law on financial provision is not “one size fits all”. Each case turns on its own facts and circumstances and every case is dealt with individually. The outcome of a friend’s or relative’s case is no guide to what would happen in your own situation. Our specialist family lawyers can help you to understand the law and how it may apply in your particular circumstances. We will strive to achieve a negotiated settlement that works for you but if court action is necessary we will support and guide you through the court process.
Contact us now for advice on your situation.

Residence and Contact
As you would expect the law about what happens to children when their parents separate, focuses on what is in the child’s best interests. This is often referred to as the “welfare principle”. The test for any arrangement for a child is will it benefit the child?
Separation from your spouse or partner can be stressful and can also have an impact on your children particularly if there are arguments about how much time they should spend with each parent. The law expects parents to try and reach agreement between themselves about the best arrangements for the children when a relationship breaks down. A negotiated settlement is almost always better for your children and for you as a parent.

If parents cannot reach agreement, then court orders can be made. The court can make the following orders in relation to children under 16:

• A residence order is a decision of the court about where a child should live on a day-to-day basis.
• A contact order is a decision of the court about contact a child will have with the non-resident parent.

What the court considers in deciding whether to make an order

• The welfare of the child, which is the most important issue in deciding what order to make
• The child’s views. Children do not have to give their views but are entitled to do so if they wish and the court must take them into account where practicable. The judge must decide what weight should be given to the child’s views.
If you are struggling to agree with your ex what time your child should spend with each parent or being refused contact with your child then early expert advice is key to maintaining your relationship. Contact us now for sympathetic practical advice We can help you to negotiate agreement on where the children will live (Residence) and the time they should spend with the other parent (Contact) or to raise court proceedings if matters cannot be agreed.

Relocation
A separated parent may decide that he or she wants to move with their child to another part of Scotland or the United Kingdom or abroad. The law says the parent must take account of the views of the other parent in making such a decision.
Where the parent wants to move the child abroad, they must have the agreement of the other parent. If the other parent won’t agree you must obtain a court order to allow the child to move.
If you are concerned that your child may be moved abroad without your agreement you should contact us for advice on getting emergency court orders to stop the other parent taking the child out of the country (known as interdict against removal) and to surrender the child’s passport to the court.

Moving a child to another part of Scotland or the United Kingdom may also require the court’s permission if the parent who is not moving does not agree and takes steps to stop the move (known as an interdict against removal).

In this type of case early expert advice is crucial. Contact us to discuss the best course of action for your situation.

Child maintenance

Child maintenance for children of the relationship must either be agreed between the parents or in the absence of agreement one or other parent can apply to the Child Maintenance Service (CMS) for a Maintenance Assessment. If maintenance is agreed between the parents it is common to use the CMS figures as a benchmark or starting point for negotiation on how much maintenance should be paid. Further information can be found on the government website https://www.gov.uk/making-child-maintenance-arrangement

The CMS do not deal with payment of school fees which, if they cannot be agreed must be dealt with by court order.

Maintenance for Children over 18 and under 25

Both parents still have an obligation to maintain children in this age bracket where they are still in education or are training for employment and are not financially independent. The maintenance is no longer paid to the parent but directly to the child and the child can raise court proceedings against one or both parents if they fail to pay.

Mediation

There are two types of mediation:
Child centred mediation on matters involving parental rights and responsibilities.
Parties can attend this type of mediation voluntarily, either before or after court proceedings have been raised. In addition, the court also has the power to refer parties to this type of mediation in any family action dealing with parental rights and responsibilities.

Mediation covering all aspects of marital breakdown, including financial aspects.
Both parties attend mediation sessions with a qualified solicitor mediator with the aim of drawing up a comprehensive agreement dealing with all aspects of their separation. A solicitor mediator cannot provide legal advice to either party. Parties are advised to seek advice from their own solicitors and any agreement reached in mediation has to be drawn up by the parties’ solicitors, not by the mediator.

Collaborative Law

In collaborative law each party instructs his or her own specially trained collaborative lawyer and settlement of all issues is attempted in a series of “four way” meetings between the separating couple and their solicitors. If agreement cannot be reached and court proceedings are necessary collaborative lawyers cannot go to court for their clients, who must then instruct new solicitors.