January is traditionally a time for taking stock, planning for the future and making life-changing decisions. For many couples, this can mean a fresh start apart to embark on different paths. The media has taken to annually reporting a rise in the number of people looking for legal advice about ending a relationship in January, often termed ‘divorce month’ (or ‘divorce day’ when referring to the first working day of the year).
Yet the phrase is something of a misnomer. In Scotland, the actual divorce procedure is only the last part of ending a marriage, that is normally started after all financial matters and/or child arrangements are agreed and settled. Further, people who are looking for advice are not only those who are married: civil partners and cohabitants also want to know what their options are and how their separation should be managed. Nor are all enquiries about an imminent or current break-up: some couples want to plan for the future by regulating how their assets will be divided should their relationship come to an end.
The Legal Status of the Relationship
When thinking about ending a relationship, it is important to be aware that the rights that individuals have depend on the legal status of their relationship. This is an important basic factor that can be overlooked by those considering their options when facing a break-up.
Being in a marriage or civil partnership means the parties have entered into a legal arrangement. This gives the parties rights that are protected should the relationship break down. For example, the law provides that money, property and other assets acquired during the marriage are ‘matrimonial property’, which must be fairly shared. Once there is an agreement between the spouses or civil partners, or the courts decide how money and property should be divided, only then is the relationship formally ended by going through the divorce process or a process to dissolve the civil partnership.
There is different protection for those who simply live together. common law marriage no longer exists in Scotland. Those who are not married but live together on a permanent basis (cohabitation) have not entered into a legal contract and therefore have very different rights if they separate, which are further restricted by being subject to strict time limits. For example, a cohabitant can only make a claim against their former partner if they have been financially disadvantaged as a result of the relationship or if their partner has been financially advantaged. The right to make a claim expires a year after the break-up. Find out more about the rights of cohabitants here.
Yet despite the different rights and degrees of protection available depending on the status of the relationship, there is general consensus that the most effective way to manage the end of a relationship, whether a marriage, a civil partnership or cohabitation, is to do so amicably. If it is possible to come to an arrangement with your former partner without the involvement of the courts, then the outcome is likely to be more beneficial for all those involved and will allow you to start your new life as soon as possible.
Mediation & Negotiation
For most couples splitting up, mediation and negotiation are key to successfully managing separation. Not only do they significantly reduce their costs and help them to avoid the need to go to court, they can also make arrangements in relation to property, finance and children that are in their best interests.
Mediation is a voluntary and flexible process that allows separating couples to reach an agreement about how their affairs will be resolved. The aim is for the couple to reach an agreement about arrangements through constructive discussions that suits both their needs. It is carried out informally with an independent and non-judgemental mediator, who helps the couple identify the issues they face, whether relating to finance, child residence or contact, or property, and assists them to arrive at their own solution.
They key thing to keep in mind is that mediation is a way for separating couples to reach a solution without having one imposed by the courts. Once an agreement is reached, it can then be formalised into a legally binding agreement, which can be enforced against a defaulting party should the need arise.
Another way of easing the stress of ending a relationship is to makes plans for managing separation in the future. This can be done by entering into a binding agreement that sets out how affairs will be regulated should the relationship end.
There are different types of agreement available depending on the stage and status of the couple’s relationship:
- Prenuptial agreements – for couples who are about to marry or enter into a civil partnership;
- Postnuptial agreements – for couples who have married or entered into a civil partnership and not contemplating divorce;
- Cohabitation agreements – for couples who live together and do not intend to formalise their relationship through marriage or civil partnership.
Provided they are carefully drafted and legal advice is sought, these agreements can be a valuable, practical and realistic way of avoiding future disputes and managing future separation.
Finding the Best Solution
As hopefully this post has shown, ending a relationship doesn’t necessarily mean an acrimonious court battle. The courts are not the default route, and there are many other options that should be considered, no matter the legal status of your relationship and the issues you may face. At Gibson Kerr we can help you find the best solution.