Separating from your partner or spouse will always be difficult. Follow these five steps at the initial relationship breakdown to be in the best position to move forward with life after separation.
Step 1: Decide Who Will Leave
You need to decide who will leave the joint home and where your children or pets will live.
You will in most cases both have occupancy rights, whether or not you jointly own/lease the property. Both of you can choose to remain in the property however this can cause difficulties, even in an amicable separation.
Step 2: Gather Documents
In a relationship various assets (possessions) are accumulated and various liabilities (debts) are incurred. You need to know what these are.
Most couples keep papers together in one place. Even if you’re remaining in the home it’s essential that you gather and, if necessary, photocopy all documentation you can find relating to assets and liabilities. The more paperwork you have the better informed you will be.
This step is even more important if you have been content to allow your partner to deal with all the finances during the relationship.
Step 3: Make A List
Once you’ve gathered the documents, make a list of everything with values as at date of separation where you can. This is particularly important if you are married because the assets and liabilities are the “matrimonial property.”
Matrimonial property is defined as any property acquired during the marriage and owned by the parties at the date of the separation. It is intended to include property acquired by the parties by their own efforts. This means inheritances and gifts from third parties are excluded from the definition of matrimonial property. Most property acquired by one party before marriage is also excluded, unless it was purchased for use as a family home. However, if inheritances and gifts are used during the marriage to acquire other assets this converts those assets into matrimonial property.
The date of separation is a crucial date and you should not agree a date of separation with your partner before speaking with a solicitor.
Step 4: Decide What Matters To You
You should consider all aspects of your relationship: from your children, your home and your pets through to that tourist painting you picked up on holiday one year. It’s essential to make a note of which things are important to you. A solicitor can only assist if they understand what really matters to you as an individual.
Everyone is different so don’t assume you and your partner will attach sentimental value to the same items. It’s worth considering what you are happy to part with and what you will not give up under any circumstances.
This is important because the first step towards divorce is usually to put in place a Separation Agreement. This is a binding contract setting out exactly what will happen to your assets and liabilities together with any children and pets. It is an agreement and therefore is developed through substantial negotiations in most cases.
Step 5: Get Legal Advice
The law regulating the division of assets on divorce is contained in the Family Law (Scotland) Act 1985. The ethos of this Act is that matrimonial assets and liabilities should be shared fairly between the parties. This normally means that assets and liabilities will be shared equally, but there are many circumstances where this isn’t appropriate.
A qualified solicitor will be able to provide guidance and reassurance throughout the difficult process of separating and potentially divorcing from your partner. Go to the Law Society of Scotland’s “Find a Solicitor” webpage and search for a solicitor in your area who specialises in family law.