Many people will have had experiences of the legal system following a separation and will offer opinions and advice about how to deal with the issues arising. It is important to seek expert advice, as family law is a complex area, and a great deal of what happens depends very much on your own individual circumstances. We look at some of the common myths and misconceptions that exist in this area.
“My husband/wife caused the split, so he/she will get less of the money”
In Scotland, we have a no-fault system when it comes to dealing with the breakdown of marriages and the financial settlements that follow. This means that it does not matter why you are separating when you are working out how to divide up your money. The spouse who has left the family or had an affair or behaved badly will not be punished financially, except in exceptional circumstances if the behaviour can be shown to have had adverse financial consequences. The law provides that the matrimonial property should be divided fairly, regardless of the circumstances giving rise to the separation.
“What is the difference between decree nisi and decree absolute?”
These concepts do not exist in Scotland. Only one decree of divorce is granted by the court and is final. Often in Scotland, you do not even need to bring a court action for divorce right away. Many couples prefer to sort out the financial and other aspects of their separation in a written agreement without the court being involved at all. The court does not have to “sign off” these agreements, and if you prefer not to apply for divorce you do not have to. Separation agreements must be fair and reasonable at the time they are signed, so it is important, even if you are not going to court, that you get advice from an expert family lawyer.
“I bought a boat with money I inherited from my parents – that is not part of the matrimonial pot”
The answer in these circumstances is not quite as straightforward as that. Property that is gifted or inherited from third parties is not matrimonial, but if you change the nature of the item gifted or inherited it might be. For example, if you inherit money and buy a boat then your boat is matrimonial property. However, it can be argued that the source of funds should be factored in when dividing the matrimonial property. Speaking to a solicitor at an early stage can help you make sure that you are well informed about the strengths and weaknesses of your position.