Most of us will have seen the recent speculation in the news and on social media that David and Victoria Beckham are the latest celebrity couple to be the subject of divorce rumours.
Whilst we can all be thankful that the tabloids won’t be full of stories about arguments over who gets the Ferrari or the mansion every day, for the majority of us who don’t have the wealth of the rich and famous, we share concerns over what to do if we find ourselves in the position of separating from our spouse.
So, what can we do?
The first thing you should think about are the assets that you and your spouse have built up during your marriage. This is an important first step and something that your solicitor will ask you at a first meeting. Even if your finances are relatively straight forward, it is always prudent to document the way in which you and your spouse have agreed to split your finances or matrimonial property as we call it. Separation Agreements are typically used to detail the way in which separating spouses wish to document any financial settlement that has been agreed and can also include arrangements that have been agreed for any children of the marriage. In terms of the finances, the law dealing with this in Scotland is laid out in the Family Law (Scotland) Act 1985. The principle of the act is that upon separation, spouses should receive a “fair share” of the matrimonial assets. The starting point would be that you are each entitled to a 50% share however there are various arguments that can be made for an un-equal share in favour of one spouse. Matrimonial assets include any financial assets built up during the marriage and up to the date of your separation. An example of matrimonial assets can include the matrimonial home; any money that either spouse may have in bank accounts at the date of separation; any businesses; aliment and pensions. A financial settlement may also include any debts that have been built up during the marriage. Any assets that have been gifted or are an inheritance are exempt and cannot be shared upon separation.
A separation agreement can also detail any arrangements that you have agreed for your children, for example regular contact; school holiday contact and child maintenance.
The grounds for divorce in Scotland are that the marriage has broken down irretrievably because of one of the following:-
one year non-cohabitation with the consent of your spouse;
two years non-cohabitation – consent not required;
adultery by your spouse; unreasonable behaviour by your spouse.
If you do not have any children under the age of sixteen and you have either agreed a financial settlement or there are no financial matters to be dealt with, you can go ahead with a simplified divorce either after one year of non-cohabitation with the consent of your spouse or after two years non-cohabitation. If there are children under sixteen then you cannot use the simplified divorce procedure and will have to apply to court using the ordinary court procedure which is a slightly longer and more costly process.
If you cannot agree a financial settlement with your spouse then it is possible to have this determined by the courts.
It is important that any financial matters are settled prior to your divorce being granted by the court because no financial claim can be made once the divorce has been granted.
How much will it cost?
The cost of your divorce will vary depending on a number of different factors. A settlement agreement will be negotiated out of court. The cost of a separation agreement varies depending on the various issues you and your spouse agree should be included. If matters cannot be settled without a court action then the costs will increase significantly. If you and your spouse have agreed a settlement and simply wish to proceed with a divorce and if you have children under the age of sixteen, an ordinary divorce action will cost in the region of £1000. If you do not have any children under the age of sixteen, you can proceed with a simplified divorce which requires minimal input from a solicitor and will cost significantly less.
If you require any advice following a separation, please contact one of our offices and ask to speak with one of our family law solicitors.