Separating from your spouse or partner can be a stressful and sometimes traumatic experience. Emotions can take over and logical thinking tends to go awry. Within this turmoil, you need to deal with the practicalities of your position. That can be extremely difficult! Sometimes, there is a drive to go to court to demand your perceived rights. However, there are advantages of having a Separation Agreement. A properly negotiated Separation Agreement can lead to a swifter and more amicable resolution.
Before you make any decisions, you should seek professional advice. You need to speak with someone who deals almost exclusively with family law and has expertise in dealing with separation and divorce cases.
Even the simplest divorce can take time, especially when there are children and money involved. Taking the court route can be time consuming and is likely to be more expensive. That’s why a Separation Agreement can lead to a resolution of issues quicker and with less expense.
What is a Separation Agreement?
A Separation Agreement is a document, signed by you and your former spouse or partner which will have contractual effect. It contains important details of when you married, began cohabitation or entered into a civil partnership and that you wish this to now come to an end. The Separation Agreement may also detail whether you have children and set out residence and contact arrangements regarding the children.
Importantly, the Separation Agreement will deal with the financial arrangements following your separation. It may set out what will happen to the family home and if one of the parties is to remain there. If there are monetary payments to be made by one party to the other, they will be set out in the Agreement. Often there will be a differential between the valuations of the spouses’ respective pensions. This differential can be addressed through a “pension sharing agreement” which can be incorporated in the Separation Agreement. This can be a very technical part of the Agreement upon which expert advice from your solicitor is required.
Is the share of property, assets and investments equal in a Separation Agreement?
Scottish Family Law contains provisions dealing with financial matters on divorce. It says that any division should be fair. However, a fair division of property, assets and investments does not always mean an equal share. Circumstances may dictate why the division should not be equal. A Separation Agreement may, for example, record that the net free proceeds of sale of a jointly owned house be split in unequal proportions (which may be different to how the title has been taken) by virtue of the fact that one party to the marriage received an inheritance which they used to clear the mortgage.
When discussing financial arrangements, there are two critical aspects to address. The first is the actual date of separation called the “relevant date” and the second is what constitutes “matrimonial property”. Your solicitor will obtain valuations of matrimonial assets and debts with a view to calculating the net matrimonial assets.
Once these have been established, the next stage is to consider how the net matrimonial assets are divided between the parties. For cohabiting couples, a different law will apply. The discussion can be complex and technical and best dealt with through negotiation.
Clearly, it is best to record your agreement regarding any children. Who they live with and when they can see or stay with the other parent are important things to record in the Separation Agreement.
The advantage of a Separation Agreement is that all these matters can be discussed, negotiated and agreed without the need to step inside a courtroom.
Separation and Divorce Solicitors, Dunfermline, Fife and Kinross
We have solicitors in the firm who specialise in all aspects of family law including separation and divorce, residence and contact and financial provision across Fife and throughout Scotland. Get in touch with us if you wish to discuss the advantages of having a Separation Agreement prepared.
