Separation and Divorce

As with any Family Law practice, the work with which we are most frequently involved concerns the resolution of all matters arising from a married couple’s separation, with particular emphasis on their financial affairs.

With the benefit of advice on the legal position from our solicitors, we find that most married couples are now able to resolve child-related issues following separation without involving the Courts. This is in keeping with the non-interventionist approach promoted by the Children (Scotland) Act 1995 and we encourage an open and conciliatory approach to the resolution of child-related issues.

In keeping with the modern practice of Family Law, our ethos in relation to financial issues is one of attempting to resolve those issues wherever possible without resorting to litigation and we have a very high success rate in negotiating favourable settlements on behalf of our clients. Such settlements are embodied in a Minute of Agreement which prevents the need for the Courts to become involved in financial issues.

However, on those occasions where it does not prove possible to resolve issues by negotiation, we do have very considerable experience of conducting contested divorce actions in both the Court of Session and in the Sheriff Court as circumstances dictate. We ensure that in Court of Session cases, Counsel of the highest quality are instructed.

The law relating to the making of financial provision upon divorce has become increasingly complex in recent years. There are a number of factors which have contributed to this increase in complexity but the principal ones can be listed as follows:

• Interim support – one of the first concerns following separation may be ongoing financial support for the client and any children, particularly where a combined income which previously financed one household now needs to finance two households. We have extensive knowledge in dealing with the issues surrounding maintenance, including negotiating maintenance and litigating where necessary. We also have solicitors with detailed knowledge of Child Support Agency related matters.
   
• The Matrimonial Home – issues relating to the matrimonial home will arise in most cases and it is important they are resolved properly. We are happy to discuss all of the available options including continued occupation by one spouse, transfer or sale of the property.
   
• Premature disposal of assets – for some clients, a significant concern when they separate from their spouse is that the other party could dispose of assets without their knowledge. In certain circumstances there are remedies available where premature disposal of assets is a real risk. We are able to act quickly and thoroughly to respond when these situations arise.
   
• Business Valuations – the valuation of an individual’s interest in a business is often a matter of dispute and the valuation of a shareholding in a private limited company can be particularly contentious. We liaise frequently with experienced forensic accountants to enable us to provide comprehensive advice. Gillian Crandles has particular expertise in this field.
   
• Partnerships – some of the most difficult cases which we handle are those in which a couple have not only been married to each other but are also in partnership with each other in a business. In other words, the couple are in two separate conflicting legal relationships with each other. We liaise with other solicitors within Turcan Connell with expertise in the field of Partnership Law in these circumstances to ensure that comprehensive advice is provided.
   
• Farming – when couples separate and a farming business is involved, extremely complicated issues can arise. These issues can vary depending on the structure of the farming business (for example, whether it is a company or a partnership) and whether the business has been passed down through generations of a family. By utilising Turcan Connell’s agricultural expertise and our strong links with experts, such as surveyors, who have specialist knowledge in this field we can give detailed and thorough advice.
   
• Pension Sharing – our experience in this area enhances the range of options available to achieve a fair division of matrimonial property. We frequently liaise with Consulting Actuaries with regard to pension sharing. The expertise of Turcan Connell’s Financial Planning Team also complements this advice.
   
• Tax Issues – we regularly consult with other Turcan Connell solicitors who specialise in tax-related issues and with our Director of Tax Services (or with our clients’ own accountants) to ensure that they have the best possible advice as to how tax issues will affect the settlement of divorce actions. This is particularly important when considering any Capital Gains Tax liability.
   
• Trusts – the involvement of a trust in a divorce can lead to complications. We liaise with solicitors in our Tax and Trust Team to ensure that comprehensive advice is given in relation to such matters.
   
• Cross border and international jurisdictional issues – very substantial differences exist between the law of divorce in Scotland and in England. It is of considerable importance to ensure that proceedings are dealt with in the jurisdiction which is most favourable to our client. We are able to provide expert advice on such jurisdictional issues, particularly as Philippa Cunniff and Sally Nash are enrolled solicitors in both Scotland and England. Philippa is also an expert on international jurisdictional issues.

Turcan Connell’s London office, situated in Mayfair, affords us enhanced opportunities to meet clients living in the south-east of England and provides a facility for consultations and settlement discussions.