You may be considering separation or already have separated. Separating may bring home to you the sheer amount of practical issues you must begin to deal with. Sometimes, separation may allow you breathing space and a chance for you to gather your thoughts for what may lie ahead. Whilst not meant to be exhaustive of the law concerning separation, I will detail below common questions and queries from clients throughout Perthshire that I have dealt with in relation to separation advice and drafting separation agreements.
For the purposes of family law in Scotland, separation is looked upon as the day that you stop living together as husband and wife. Using a simple example, separation can be said to commence when one party leaves the matrimonial home to reside elsewhere. This day is important as family law legislation assigns this date as the ” relevant date ” Whether or not you are separated is a matter of fact under family law – a couple could be classed as separated despite continuing to live together under the same roof. In this example, separation would be demonstrated as no longer engaging in mutual activities, for example preparing meals for each other, visiting attractions together or performing work for each other around the home. Both parties would have to be diligent in attending to their own needs and their needs alone. Performing tasks together for the benefit and/or welfare of the couples children would not affect the couples separation.
Reference was made earlier to the ” relevant date “. In terms of The Family Law ( Scotland ) Act 1985 the Act defines the ” relevant date ” is the date of separation or the date a divorce action was served on the other party.
Matrimonial property consists of all property belonging to the parties or either of them at the relevant date. The ” relevant date ” is used to devise the valuation of matrimonial property forming the financial settlement later in the divorce process.
It is strongly recommended to seek legal advice from a solicitor for advice and perhaps drafting a separation agreement. The separation agreement may also be known as a ” minute of agreement “. A separation agreement spells out how the parties will deal with the numerous matters that will require to be addressed in the aftermath of the breakdown of their marriage. These matters may consist of what to do with the matrimonial homes and/or other property, care arrangements for children, maintenance arrangements for children, claims under succession and decisions concerning financial products such as pensions, life policies, saving accounts etc. Agreements can be as detailed as the parties may wish for their particular circumstances. It is good practice following a separation that parties attempt to enter into a separation agreement thus minimising the areas that may become bones of contention. Where parties fail to enter into agreement, court action may be likely which can result in high costs and longer resolution times for the respective parties.
After all terms of the Separation Agreement have been agreed between the respective parties’ solicitors, the separation agreement is registered with the Registers of Scotland, Books of Council and Session. Registration of the document results in the separation agreement obtaining a similar weight as a court order and the agreement can thus be enforced by the courts. This means that if either party breaches terms of the separation agreement they could face an action. There are though exceptions with care arrangements for children; if arrangements are clearly not working for a child then the agreement may be subject to variation by either party by application to the court, with the ” best interests ” of the child central to the order issued by the court.
I ensure that you & your family’s particular circumstances are given paramount consideration and this will be reflected in drafting your separation agreement. I have a wealth of experience in drafting separation agreements with many satisfied clients throughout Perth and Perth & Kinross
We can help you with:-
CONTACT WITH CHILDREN
RESIDENCE OF CHILDREN
PARENTAL RIGHTS & RESPONSIBILITIES
FINANCE PROVISION ON DIVORCE
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Louisa J Wade
Family Law Solicitor
2 Ardchoille Park
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