This article originally appeared in the Sunday Herald on Sunday 4th February 2018.
Beyond the emotional impact of separation, many people find that a divorce is a significant financial challenge as they try to make the resources which previously ran one household stretch to run two.
Adding into this the additional expense of legal fees and court fees, and it is not surprising that many people find themselves under significant stress during their divorce, and that two people who were already struggling in their relationship with each other suddenly find themselves even more polarised. It may help those who are considering separating or who are going through a separation to know what to expect.
“No Fault” Divorce
Scotland has “no fault” divorce, which means that people’s behaviour is not taken into account when deciding how to divide the couple’s assets. The only exception to this is where the behaviour had an impact on the couple’s finances, such as where one person struggled with a gambling addiction. Avoid the expectation that the courts will determine who is at fault in the breakdown of the marriage and will effect some sort of financial punishment. The courts will not act in this way.
Instead, they will look at what the couple have accumulated by way of property between the date of marriage and the date of separation (except gifts or inheritance) and will divide that “fairly”. The starting point is that fairly means equally, and so, in the absence of other circumstances, it is to be expected that, no matter their contribution during the marriage, or who was earning, each of the parties will end up with one half of the assets which they have accumulated together. The courts in Scotland also favour a “clean break” meaning that unlike in other countries, where maintenance being paid by one ex-spouse to the other for any extended period of time is common, the courts in Scotland will not always award ongoing maintenance after divorce, and even then such support is usually limited to no more than three years.
Child Maintenance and Support
This is separate to the support which the parent with whom the children mainly reside can expect to receive in the care and upbringing of the children. That is dealt with by the Child Maintenance Service, who have a very helpful calculator available on their website to allow a parent to see how much they should be paying/receiving by way of support for their children.
In addition to the support required by the Child Maintenance Service, there is an expectation that, where the children of a marriage attended or would have been expected to attend a private school, they will be able to do so even after the end of their parents’ marriage. If one or both parents are able to afford private school fees, the courts can be asked to make an order regulating how these are to be paid.
There are many nuances to the division of assets on divorce, and people are always encouraged to contact a solicitor to explore their options. In doing so, it is important to remember that divorces do not need to end up in long drawn out court proceedings. Parties can aim to resolve matters collaboratively, using a family-friendly approach to deal with their separation in a modern and mature fashion, with a view to achieving a solution that works for both parties.