Duthie Ward Solicitors, Aberdeen Scotland
Duthie Ward Solicitors, Aberdeen Scotland
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Separation
       
SEPARATION

Introduction
Am I legally separated?
What is a separation agreement?
How do we sort out all these issues?
Can the agreement be changed?
Do we still have to apply to a court for the divorce?
Cohabiting and same-sex couples
How we can help

Introduction
When a relationship breaks down, it is a time of great uncertainty for you and your family. You wonder what the future holds for you. What are your rights? What are your responsibilities? It is a time when you need support and understanding as well as the best legal advice available. You may hear horror stories about other people’s experiences, and receive well-intentioned, but ill-informed legal advice from friends. Seeing a solicitor at such a time can be quite daunting, especially if you have not have much involvement with solicitors in the past. You may also feel that consulting a solicitor is the point of no return. However the sooner you do it the sooner you will know exactly how you stand. Things are rarely as bad as you think! This website will give you some general information that will hopefully set your mind at rest.  You can then make an appointment to see Richard Ward to get advice specific to your situation.

Am I legally separated?
Whether or not you are separated is a matter of fact.  The simplest case is where one of you leaves the matrimonial home and sets up home elsewhere.  In that case, the date of separation is the date that he or she leaves.  However, it is possible to be separated in the eyes of the law, even though you are still living in the same house, if you are leading separate lives. 

You can be separated in the eyes of the law even though the separation has not been formalised by a written separation agreement. However, if it has been, that is commonly referred to as a legal separation.

 
Richard Ward divorce solicitor

What is a separation agreement?
This is a written agreement setting out the terms of the separation. It is intended to deal with all of the practical and financial issues that arise. It can deal with any one or more of the following questions: -

  • What is to happen to the family home?
    If you own the house, you will have to decide whether it is to be sold, transferred to one of you, or remain in joint names with one of you are having the right to stay there, perhaps for an agreed period of time.  If you lease the house, is the tenancy to be transferred to one of you?
  • What about other assets that you own?
    The law says that, on divorce, assets that you owned at the date of separation which you have acquired during the marriage should be shared fairly between you.  However, you don’t have to get divorced at this stage. You can still share these assets  between you now, rather than leaving it until later, simply by applying the rules that would apply on divorce.  See Sharing the Matrimonial Property.
  • What about the children?
    You will both continue to have parental responsibilities and parental rights, but you will have to consider arrangements for their care -- with which parent are they to live, and how often and when are they to see the other parent? See Children and Separation.
  • What about maintenance?
    Spouses have a mutual obligation to support each other financially for so long as they remained married.  Whether any maintenance is, in fact, payable will depend on a number of factors.  Maintenance can also be payable after divorce, although usually only for a limited period of time.  See Maintenance for Spouses.

    Both parents have an obligation to maintain their children.  If the children are living mainly with one parent, the other parent will be required to provide financial support.  This can be agreed, but, in the absence of agreement, either parent can apply to the Child Support Agency for a child maintenance assessment.  See Maintenance for Children.

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How do we sort out all these issues?
It is best that you both obtain independent legal advice as soon as possible, so that you start off knowing what your rights and responsibilities are.  You can then try and resolve these issues using any of the following methods: –

  • Negotiating through your solicitors – this is the traditional method used, and can be best for some situations.  However, it can take a long time because of the chain of communication between the four people involved, i.e. you, your spouse, and the two solicitors. It can also be expensive in terms of legal costs, sometimes without achieving a great deal, and can lead to a building up of resentment and frustration.
  • Going to a family mediator – this is an independent solicitor who is trained as a family mediator and who will work with you as a couple try and resolve the issues arising from your separation. Your individual solicitors will only be involved after the mediation is finished in drawing up the separation agreement, and implementing it, e.g. selling a house. For more information, click here
  • Collaborative family law – this is a new process which has recently become available in Aberdeen.  Richard Wardis a trained collaborative lawyes. You and your spouse each have your own solicitor to advise and assist in negotiating a settlement. All negotiations take place in “four-way” meetings attended by both solicitors and clients. Everyone involved undertakes not to go to court or threaten to go to court. Settlement is the only agenda. For more information click here.

  •  “Round table meeting” – this is a meeting attended by you and your spouse/partner, but with your solicitors present.  It is less satisfactory than either mediation or collaborative family law, but could be used where your spouse’s solicitor is not a trained collaborative lawyer. It requires a high degree of co-operation and production in advance of all necessary documents, valuations, etc.
  • Going to Court – this should always be a last resort, as it is expensive, stressful and tends to drive a couple even further apart than they are already.  If you ask for a divorce, you can ask the court to make orders for a division of matrimonial assets and maintenance for yourself. But you don’t have to raise an action of divorce: you can apply to the court for other orders, such as maintenance for yourself, or for orders relating to children.  Sometimes court action is inevitable at an early stage, if you require the protection of an interdict, or an interim order relating to the care of children.  However, once you have the interim orders, you can still use one of the above methods to resolve other outstanding issues. 

Can the agreement be changed?
It is usually in both your interests that the agreement is a binding legal contract.  However, any provisions for the care of children will always be subject to variation if the welfare of the children requires it. Also any provision for maintenance, whether for a spouse or children, is usually variable if there is a material change of circumstances. See Maintenance for a Spouse and Maintenance for Children

Do we still have to apply to a court for a divorce?
Yes.  Only a court can grant a decree (order) of divorce.  Most divorces are dealt with in the local sheriff court.  However, if all other issues have been resolved, and you both want a divorce, it can proceed without the need for either of you to attend at court.  See Divorce.

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Cohabiting and same-sex couples
Since 4th May 2006, cohabitees (both opposite and samesex) have enjoyed some, but not all, of the rights which are accorded to married and civil partners. For example, cohabitees now have equalrights in household goods acquired during the period of cohabitation and can claim a financial settlement when the relationship comes to an end. They also have limited rights on succession where their partner dies without leaving a will.

The rights of same sex couples are set out in the Civil Partnership Act 2004. This Act puts civil partners in a similar position to married couples. For example, civil partnerships can be dissolved, in the same way as a married couple can be divorced. Civil partners have similar succession rights to married couples, and similar rights to financial provision on dissolution – see Sharing the Matrimonial Property. Civil partners can enter into separation agreements in the same way as married couples and can attempt to resolve their differences, using mediation and collaborative family law. Much of the information on this site relating to married couples will also be relevant to civil partners. However, there are differences, and you should contact us to get specific advice on your own situation.

How We Can Help
With over 30 years experience of family law, Richard Ward combines an in-depth knowledge of the law with a sympathetic and understanding approach.  He is aware of the emotional as well as the practical and legal consequences of separation and divorce.  He will explain the law to you in clear and understandable terms and tell you about the options that are open to you to resolve the issues that arise from your separation.  He will negotiate on your behalf for a fair settlement and prepare any written agreement that is required.  You will find him both approachable and professional.  Contact him by telephoning 01224 621622 or by email richard@duthieward.co.uk

Here is what some of our clients have said about us:-

“Thank you so much for all your efforts, endless patience and hard work ... it has been hugely appreciated.”

“Thank you for all your work connected with my divorce. I greatly appreciate your care and attention.”

The legal information contained in this site is not comprehensive, nor should it be treated as a substitute for specific legal advice on any individual situation.

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42 Carden Place, Aberdeen, AB10 1UP, Scotland
Tel: 01224 621622 Fax: 01224 621623 e-mail: info@duthieward.co.uk