Separation and divorce are amongst the most difficult things you will ever go through, full of emotion and uncertainty. It is natural to feel overwhelmed. However, you need to deal with the practicalities of the situation calmly and methodically. Getting professional legal advice early will make all the difference to getting a fair outcome and protecting your rights.

One of the first things to consider is whether a Minute of Agreement is the right way forward for you. In this article, we aim to provide guidance by outlining arrangements for children, finances, property and other important things. We believe this is a practical way to work through a separation and build a foundation for your future.

Finance and Property

When it comes to dividing assets and debts, you need to understand the legal framework. Here are some key points that matter:

1. Date of Separation: This is the date you officially separate. It is important because it is the date used to value matrimonial assets and debts.
2. Fault is Irrelevant: The law does not consider who is to blame for the breakdown of the marriage when settling financial and property allocation.
3. Rights to the Family Home: Even if one spouse owns the property, the other is legally entitled to remain in the property until the marriage ends.
4. Selling the Family Home: If you want to sell the family home while your spouse is still in the property, their consent is required.
5. Matrimonial Property: This includes assets acquired between the date of marriage and the date of separation, except gifts and inheritances unless used for the benefit of the marriage.
6. Inherited Property: Property purchased with inherited funds may be considered matrimonial property if used for joint purposes.
7. Debts: Individual debts are usually the responsibility of the person who incurred them, joint debts are usually allocated on a 50/50 basis.
8. Valuations: Professional valuations may be required for certain assets. Also, documentation will be required to vouch for inherited property.

Asset Division

Once valuations have been carried out, the next step is to decide how assets and debts will be divided:

1. Fair Share: The starting point is that matrimonial property should be divided on a 50/50 basis. However, exceptions can apply if there are circumstances that justify an unequal split.
2. Balancing Payments: If one spouse keeps more assets, they may need to make up for it by making a balancing payment to the other.
3. Economic Disadvantage: If one spouse gave up career opportunities for the family, they may be entitled to a larger share of the assets by way of compensation.
4. Family Home: To prioritise the children’s stability, the primary carer may be given the right to remain in the family home.
5. Support Payments: Short term financial support may be ordered to help a spouse retrain or find new employment.
6. Children’s Best Interests: Arrangements for residence and contact must put the children first. The court will consider their views if they are old enough to express them.

Practical Steps

1. Consider whether aliment is required: This is the financial obligation to support a former spouse and children based on need and means.
2. The need for independent legal advice: Each party must have their own lawyer to avoid conflicts of interest.
3. What options are there for the negotiation process? Settlements are usually negotiated through letters or meetings between solicitors (although there are alternatives of collaborative practice, mediation or arbitration)
4. Entering into a Minute of Agreement: Once terms are agreed, the document is signed, registered, and becomes legally binding.
5. There is a need to be patient: These matters can take time so be patient and focused.

Separation and Divorce Solicitors, Dunfermline, Fife

Separation and divorce are tough but you need to approach them with a clear understanding of your rights and options. Do not accept less than you’re entitled to or make hasty decisions under stress.

The rules on separation and divorce equally apply to couples in a civil partnership and the information provided above apply equally to civil partnership as to marriage.

If you’re going through a separation or divorce, our team is here to help. Gillian Gaffney is an experienced family law solicitor and has years of experience dealing with financial provision on separation and divorce. If you have separated or are thinking about separating from your spouse or partner and would like honest, pragmatic advice, get in touch to make an appointment with Gillian or give us a call on 01383 629720.