Divorce has its differences: The Scottish route to securing financial settlements

Lindsey Ogilvie, Partner wrote for The Guardian.

I often read with interest articles concerning people’s personal experience of separation and divorce. Depending on the nature of the relationship prior to separation, and the reasons for the breakdown of the marriage, people’s account of the process and its effect upon them personally and their children differs greatly. Individuals experience trauma and stress in varying degrees and it has brought into focus how I as a family lawyer advise and support clients from a first meeting to guiding them through the separation process leading up to divorce.

Quoting the wise words recently written by Barbara Ellen, breaking up is hard but avoiding the scenario where it becomes a “toxic car crash” must be a priority for all concerned.

I practice solely in Scotland where the legal route for securing a financial settlement and ultimately divorce is very different to that in England and Wales. In England and Wales you are required to divorce before monetary matters are considered, in Scotland the converse applies.

You rarely see Scottish divorcing couple’s stories hitting the press. Despite this, unlike in England and Wales until recently, we have always had an open policy in our family law courts which are open to the public except for certain hearings involving children and their care. The explanation for the lack of press interest may be because the Scottish system enables parties following their separation to negotiate a financial settlement embodied in a binding legal contract between the parties known as a Minute of Agreement. Importantly, that document records and acts as the full and final settlement of any financial claim either party could make against the other for all time coming, even on death. That same document could also record the arrangements the parties have agreed for the care of their children, payment of school fees and the like. Parties can opt for that Agreement to remain private between them with no press-worthy information coming to light. Only in circumstances where the Agreement requires enforcement – such as a failure or delay by one party to implement any settlement terms would the Agreement need to be registered in a public register to confer upon that Agreement the force of a court order.

Assuming the existence of such a document, the parties would then be free to secure a divorce through the Court without any need for the parties to attend Court and/or for the Court to have any knowledge of the financial settlement reached. In other words, securing your divorce is an entirely administrative process and in the case of a couple with no children, or children over the age of 16, can be obtained through a form-filling exercise at minimal cost and within a matter of a few months.

Securing such an outcome can still be achieved against the background of a litigation should a party require the courts assistance to encourage a reluctant spouse to fully disclose assets, or to secure protective orders whether financial or personal. The Minute of Agreement can be finalised, and frequently are finalised at the doors of court to avoid a costly evidential hearing with an uncertain outcome.

Whilst this article has focused upon the end of a parties’ relationship, frequently and increasingly family lawyers are involved in family creation assisting parties with the preparation of Pre-Nuptial and Cohabitation Agreements (which again can be private) to provide a welcome certainty in the event of a separation in future. It may not be romantic, but forward planning in this way can greatly assist an otherwise difficult situation.