What happens when you separate from your spouse in Scotland and there are financial matters to be resolved?
In this article, I will broadly explore and explain the process which I have found can be quite confusing for clients, many of whom may have obtained information online about the English process which is very different.
I explain this to clients as a three stage process. Firstly, we need to gather information about the finances, secondly we need to agree with the other spouse (or their solicitor) the division of the finances and thirdly we need to agree how to achieve that. If we are able to reach agreement on all of this, we can then draw up a contract which will be signed by the spouses, known as a ‘Minute of Agreement’.
So, taking the stages in order:
Gathering information about the finances
What we look for is a ‘snapshot’ of the assets and debts which you and your spouse held at the date of separation, either in your sole names or in joint names. By ‘assets’ I mean, for example, a house, bank accounts, shares, motor cars etc. By ‘debts’ I mean, for example, a mortgage, credit cards, loans. Broadly speaking, we require the value as at the date of separation for items in your sole names, and as at current date for the items in joint names. Once we have all of the values, these will be pulled together as a list, known as a ‘schedule of matrimonial property’.
Agreeing the division of the finances
Broadly speaking, the law relating to separation of spouses in Scotland provides for a fair sharing of the matrimonial property, which usually means an equal sharing unless there are circumstances which exist to justify not equally sharing the property. There are many such circumstances but, for example, they could arise where one spouse paid money into a matrimonial asset from an asset owned before the marriage, or from an inheritance or gift from a third party. They could also arise in a situation where one party has been disadvantaged in their career progression to enable the other party to progress their career.
Agreeing how to achieve the division of the finances
Once we have agreed the division of the finances, so perhaps 50/50 split, or something else, where one party is getting more than 50% of the matrimonial property and the other is getting less, we then need to agree how to achieve that. A common misconception is that every item of matrimonial property is split in the agreed division. That is not the case. It is an overall division we look at, and we try to minimise the transferring of assets to make achieving the division as straightforward as possible.
Once agreement has been reached on the above, a Solicitor will then draw up a contract known as a ‘Minute of Agreement’. This document sets out precisely what has been agreed between the spouses and, once signed by them both, is a binding contract. At that stage, one of the spouses may wish to apply for a divorce, provided there are grounds to do that at that time. The divorce action will (generally speaking) not make reference to the financial matters, as they are all resolved in the Minute of Agreement. This makes the divorce process more straightforward.
The Drummond Miller family team is extremely experienced in dealing with all aspects of family law, including separation and divorce. If you would like any further information or advice, please get in touch with our experienced solicitors in Edinburgh, Glasgow, Dalkeith, Musselburgh and Bathgate.